Approval and Promulgation of State Implementation Plans; City of Albuquerque-Bernalillo County, New Mexico; Interstate Transport Affecting Visibility and Regional Haze Rule Requirements for Mandatory Class I Areas, 71119-71129 [2012-28822]
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Court of Appeals for the appropriate
circuit by January 28, 2013. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action
approving the incorporation by
reference of Pennsylvania’s control of
NOX emissions from glass melting
furnaces into ACHD Rules and
Regulations, Article XXI, Air Pollution
Control may not be challenged later in
proceedings to enforce its requirements.
(See section 307(b)(2).)
Article XX or XXI citation
*
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements.
Subpart NN—Pennsylvania
2. In § 52.2020, the table in paragraph
(c)(2) is amended by adding a heading
for Subpart 10 and an entry for Section
2105.101 after the entry for Section
2105.90 to read as follows:
■
Dated: November 7, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
§ 52.2020
*
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Identification of plan.
*
*
(c) * * *
(2) * * *
*
*
1. The authority citation for part 52
continues to read as follows:
■
State
effective
date
Title/subject
*
Authority: 42 U.S.C. 7401 et seq.
List of Subjects in 40 CFR Part 52
*
Additional explanation/
§ 52.2063 citation
EPA approval date
*
*
*
*
*
*
Part E—Source Emission and Operating Standards
*
*
*
*
*
Subpart 10—NOX Sources
Section 2105.101 .....................
*
*
*
Control of NOX Emissions
from Glass Melting Furnaces.
*
*
*
*
*
[FR Doc. 2012–28831 Filed 11–28–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2008–0702; FRL–9755–5]
Approval and Promulgation of State
Implementation Plans; City of
Albuquerque-Bernalillo County, New
Mexico; Interstate Transport Affecting
Visibility and Regional Haze Rule
Requirements for Mandatory Class I
Areas
Environmental Protection
Agency (EPA).
ACTION: Final rule.
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AGENCY:
EPA is approving the City of
Albuquerque—Bernalillo County, New
Mexico State Implementation Plan (SIP)
revisions submitted by the Governor of
New Mexico on July 28, 2011
addressing the regional haze
requirements for the mandatory Class I
areas under 40 CFR 51.309. The EPA
SUMMARY:
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finds that these revisions to the State
Implementation Plan (SIP) and
associated rules meet the requirements
of the Clean Air Act (CAA) and comply
with the provisions of 40 CFR 51.309,
thereby meeting requirements for
reasonable progress for the 16 Class I
areas covered by the Grand Canyon
Visibility Transport Commission Report
for approval of the plan through 2018.
We are also approving SIP submissions
offered as companion rules to the
Section 309 regional haze plan,
specifically, rules for the Sulfur Dioxide
Emissions Inventory Requirements and
the Western Backstop Trading Program,
submitted on December 26, 2003,
September 10, 2008, and May 24, 2011,
and rules for Open Burning, submitted
on December 26, 2003 and July 28,
2011. These SIP revisions were
submitted to address the requirements
of the Act and our rules that require
states to prevent any future and remedy
any existing man-made impairment of
visibility in mandatory Class I areas
caused by emissions of air pollutants
from numerous sources located over a
wide geographic area (also referred to as
the ‘‘regional haze program’’). States are
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required to assure reasonable progress
toward the national goal of achieving
natural visibility conditions in Class I
areas.
We are also approving a portion of the
SIP revision submitted by the City of
Albuquerque—Bernalillo County, New
Mexico on July 30, 2007, for the purpose
of addressing the ‘‘good neighbor’’
provisions of the CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS and the PM2.5 NAAQS. We are
approving the portion of the SIP
submittal that addresses the CAA
requirement concerning noninterference with programs to protect
visibility in other states. EPA is taking
this action pursuant to section 110 of
the CAA.
DATES: This final rule is effective
December 31, 2012.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R06–OAR–2008–0702. All
documents in the docket are listed on
the www.regulations.gov Web site.
Publicly available docket materials
are available either electronically
through www.regulations.gov, or in hard
copy at the Air Planning Section (6PD–
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L), Environmental Protection Agency,
1445 Ross Avenue, Suite 700, Dallas,
Texas 75202–2733 The file will be made
available by appointment for public
inspection in the Region 6 FOIA Review
Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in
the FOR FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at
214–665–7253 to make an appointment.
If possible, please make the
appointment at least two working days
in advance of your visit. There will be
a 15 cent per page fee for making
photocopies of documents. On the day
of the visit, please check in at our
Region 6 reception area at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
FOR FURTHER INFORMATION CONTACT:
Michael Feldman, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone 214–665–9793; fax number
214–665–7263; email address
feldman.michael@epa.gov.
SUPPLEMENTARY INFORMATION:
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Definitions
For the purpose of this document, we are
giving meaning to certain words or initials as
follows:
i. The words or initials Act or CAA mean
or refer to the Clean Air Act, unless the
context indicates otherwise.
ii. The 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 initials RH and RHR mean or refer
to Regional Haze and Regional Haze Rule.
v. The initials BC and the words
Albuquerque and Bernalillo County mean the
City of Albuquerque-Bernalillo County, New
Mexico
vi. The initials AQCB mean or refer to the
Albuquerque/Bernalillo County Air Quality
Control Board.
vii. The initials BART mean or refer to Best
Available Retrofit Technology.
viii. The initials OC mean or refer to
organic carbon.
ix. The initials EC mean or refer to
elemental carbon.
x. The initials VOC mean or refer to
volatile organic compounds.
xi. The initials EGUs mean or refer to
Electric Generating Units.
xii. The initials NOX mean or refer to
nitrogen oxides.
xiii. The initials SO2 mean or refer to sulfur
dioxide.
xiv. The initials PM10 mean or refer to
particulate matter with an aerodynamic
diameter of less than 10 micrometers.
xv. The initials PM2.5 mean or refer to
particulate matter with an aerodynamic of
less than 2.5 micrometers.
xvi. The initial RPGs mean or refer to
reasonable progress goals.
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xvii. The initials RPOs mean or refer to
regional planning organizations.
xviii. The initials WRAP mean or refer to
the Western Regional Air Partnership.
xix. The initials GCVTC mean or refer to
the Grand Canyon Visibility Transport
Commission.
Table of Contents
I. Background
II. Final Action
III. Basis for Final Action
IV. Issues Raised by Commenters and EPA’s
Responses
V. Statutory and Executive Orders
I. Background
The CAA requires each state to
develop plans, referred to as SIPs, to
meet various air quality requirements. A
state must submit its SIPs and SIP
revisions to us for approval. The
Albuquerque/Bernalillo County Air
Quality Control Board (AQCB) is the
federally delegated air quality authority
for the City of Albuquerque and
Bernalillo County, New Mexico (BC).
The AQCB is authorized to administer
and enforce the CAA and the New
Mexico Air Quality Control Act, and to
require local air pollution sources to
comply with air quality standards. The
AQCB has submitted a Section 309
regional haze SIP for its geographic area
of New Mexico under the New Mexico
Air Quality Control Act (section 74–2–
4). The BC RH SIP is a necessary
component of the regional haze plan for
the entire State of New Mexico and is
also necessary to ensure the
requirements of Section 110(a)(2)(D)(i)
of the CAA are satisfied for the entire
State of New Mexico. Once approved, a
SIP is enforceable by EPA and citizens
under the CAA, also known as being
federally enforceable. This action
involves the requirement that states
have SIPs that address regional haze and
address the requirement that emissions
from a state do not interfere with
measures of other states to protect
visibility.
A. Regional Haze
In 1990, Congress added section 169B
to the CAA to address regional haze
issues, and we promulgated regulations
addressing regional haze in 1999. 64 FR
35714 (July 1, 1999), codified at 40 CFR
part 51, subpart P. The requirements for
regional haze, found at 40 CFR 51.308
and 51.309, are included in our
visibility protection regulations at 40
CFR 51.300–309. The requirement to
submit a regional haze SIP applies to all
50 states, the District of Columbia and
the Virgin Islands. States were required
to submit a SIP addressing regional haze
visibility impairment no later than
December 17, 2007. 40 CFR 51.308(b).
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The AQCB submitted the BC RH SIP
to EPA on July 28, 2011, and it adds to
earlier RH SIP planning components
that were submitted on December 26,
2003.
B. Interstate Transport and Visibility
On July 18, 1997, we promulgated
new NAAQS for 8-hour ozone and for
PM2.5. 62 FR 38652. Section 110(a)(1) of
the CAA requires states to submit SIPs
to address a new or revised NAAQS
within 3 years after promulgation of
such standards, or within such shorter
period as we may prescribe. Section
110(a)(2)(D)(i)(II) of the Act requires that
states have a SIP, or submit a SIP
revision, containing provisions
‘‘prohibiting any source or other type of
emission activity within the state from
emitting any air pollutant in amounts
which will * * * interfere with
measures required to be included in the
applicable implementation plan for any
other State under part C [of the CAA]
* * * to protect visibility.’’ Because of
the impacts on visibility from the
interstate transport of pollutants, we
interpret the ‘‘good neighbor’’
provisions of section 110 of the Act
described above as requiring states to
include in their SIPs either measures to
prohibit emissions that would interfere
with the reasonable progress goals set to
protect Class I areas in other states, or
a demonstration that emissions from BC
sources and activities will not have the
prohibited impacts on other states’
existing SIPs.
The EPA received a SIP revision
adopted by AQCB on September 12,
2007 to address the interstate transport
provisions of CAA 110(a)(2)(D)(i) for the
1997 ozone and PM2.5 NAAQS.
C. Lawsuits
In a lawsuit in the U.S. District Court
for the District of Columbia,
environmental groups sued us for our
failure to timely take action with respect
to the regional haze requirements of the
CAA and our regulations. In particular,
the lawsuit alleged that we had failed to
promulgate federal implementation
plans (FIPs) for these requirements
within the two-year period allowed by
CAA section 110(c) or, in the
alternative, fully approve SIPs
addressing these requirements.
As a result of this lawsuit, we entered
into a consent decree. The consent
decree requires that we sign a notice of
final rulemaking addressing the regional
haze requirements for Bernalillo County
by November 15, 2012. We are meeting
that requirement with the signing of this
notice of final rulemaking.
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D. Our Proposal
We signed our notice of proposed
rulemaking on April 12, 2012, and it
was published in the Federal Register
on April 25, 2012 (77 FR 24768). In that
notice, we provided a detailed
description of the various regional haze
requirements and interstate transport
and visibility requirements. We are not
repeating that description here; instead,
the reader should refer to our notice of
proposed rulemaking for further detail.
In our proposal, we proposed to approve
BC SIP revisions submitted on July 28,
2011 addressing the regional haze
requirements for the mandatory Class I
areas under 40 CFR 51.309. We
proposed to find that all reviewed
components of the SIP meet the
requirements of 40 CFR 51.309. We also
proposed to approve a portion of the BC
SIP revision submitted on July 30, 2007,
for the purpose of addressing the ‘‘good
neighbor’’ provisions of the CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS and the PM2.5 NAAQS. This
proposal proposed to approve the
portion of the SIP submittal that
addresses the CAA requirement
concerning non-interference with
programs to protect visibility in other
states.
E. Public Participation
We requested comments on all
aspects of our proposed action and
provided a thirty-day comment period,
with the comment period closing on
May 25, 2012. We received comments
on our proposed rule that supported our
proposed action and that were critical of
our proposed action. In this action, we
are responding to the comments we
have received, taking final rulemaking
action, and explaining the bases for our
action.
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II. Final Action
In this action, EPA is approving City
of Albuquerque—Bernalillo County,
New Mexico SIP revisions submitted on
July 28, 2011 addressing the regional
haze requirements for the mandatory
Class I areas under 40 CFR 51.309. We
find that all reviewed components of the
SIP meet the requirements of 40 CFR
51.309. In conjunction with this
approval, we are also approving the
following related rules: 20.11.46 NMAC,
Sulfur Dioxide Emission Inventory
Requirements; Western Backstop Sulfur
Dioxide Trading Program (submitted
after initial adoption on December 26,
2003, with revisions submitted on
September 10, 2008, and May 24, 2011)
and 20.11.21 NMAC, Open Burning
(submitted after initial adoption on
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December 26, 2003, with revisions
submitted on July 28, 2011).
We are approving a portion of the SIP
revision submitted by the City of
Albuquerque—Bernalillo County, New
Mexico on July 30, 2007, for the purpose
of addressing the ‘‘good neighbor’’
provisions of the CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS and the PM2.5 NAAQS.1 We are
approving the portion of the SIP
submittal that addresses the CAA
requirement concerning noninterference with programs to protect
visibility in other states.
III. Basis for Our Final Action
We have fully considered all
significant comments on our proposal
and have concluded that no changes
from our proposal are warranted. Our
action is based on an evaluation of BC’s
regional haze SIP submittal against the
regional haze requirements at 40 CFR
51.300–51.309 and CAA sections 169A
and 169B. A detailed explanation of
how the Albuquerque SIP submittal
meets these requirements is contained
in the proposal. All general SIP
requirements contained in CAA section
110, other provisions of the CAA, and
our regulations applicable to this action
were also evaluated. The purpose of this
action is to ensure compliance with
these requirements. Our authority for
action on BC’s SIP submittal is based on
CAA section 110(k).
We are approving BC’s regional haze
SIP provisions because they meet the
relevant regional haze requirements.
Most of the adverse comments we
received concerning our proposed
approval of the regional haze SIP
pertained to our proposed approval of
the SO2 backstop trading program.
IV. Issues Raised by Commenters and
EPA’s Responses
A. Comments and Responses Common
to Participating States Regarding
Proposed Approval of the SO2 Backstop
Trading Program Components of the RH
SIPS
EPA has proposed to approve the SO2
backstop trading program components
of the RH SIPs for all participating
States and has done so through four
1 There are four ‘‘prongs’’ under the ‘‘good
neighbor’’ provisions of the CAA section
110(a)(2)(D)(i). On November 8, 2012 (75 FR 68447),
we approved a SIP revision that air pollutant
emissions from sources within BC do not
significantly contribute to nonattainment of the
1997 ozone NAAQS and the PM2.5 NAAQS in any
other state. On September 19, 2012, we approved
a SIP revision that air pollutant emissions from
sources within BC do not interfere with prevention
of significant deterioration (PSD) measures required
in the SIP of any other state for the 1997 ozone and
PM2.5 NAAQS.
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separate proposals: For the Bernalillo
County proposal see 77 FR 24768 (April
25, 2012); For the Utah proposal see 77
FR 28825 (May 15, 2012); for the
Wyoming proposal see 77 FR 30953
(May 24, 2012); finally, for the New
Mexico proposal see 77 FR 36043 (June
15, 2012). National conservation
organizations paired with organizations
local to each state have together
submitted very similar, if not identical,
comments on various aspects of EPA’s
proposed approval of these common
program components. These comment
letters may be found in the docket for
each proposal and are dated as follows:
May 25, 2012 for Bernalillo County; July
16, 2012 for Utah; July 23, 2012 for
Wyoming; and July 16, 2012 for New
Mexico. Each of the comment letters has
attached a consultant’s report dated May
25, 2012, and titled: ‘‘Evaluation of
Whether the SO2 Backstop Trading
Program Proposed by the States of New
Mexico, Utah and Wyoming and
Albuquerque-Bernalillo County Will
Result in Lower SO2 Emissions than
Source-Specific BART.’’ In this section,
we address and respond to those
comments we identified as being
consistently submitted and specifically
directed to the component of the
published proposals dealing with the
submitted SO2 backstop trading
program. For our organizational
purposes, any additional or unique
comments found in the conservation
organization letter that is applicable to
this proposal (i.e., for the City of
Albuquerque -Bernalillo County) will be
addressed in the next section where we
also address all other comments
received.
Comment: The language of the Clean
Air Act appears to require BART. The
commenter acknowledges that prior
case law affirms EPA’s regulatory basis
for having ‘‘better than BART’’
alternative measures, but nevertheless
asserts that it violates Congress’
mandate for an alternative trading
program to rely on emissions reductions
from non-BART sources and excuse
EGUs from compliance with BART.
Response: The Clean Air Act requires
BART ‘‘as may be necessary to make
reasonable progress toward meeting the
national goal’’ of remedying existing
impairment and preventing future
impairment at mandatory Class I areas.
See CAA Section 169A(b)(2). In 1999,
EPA issued regulations allowing for
alternatives to BART based on a reading
of the CAA that focused on the
overarching goal of the statute of
achieving progress. EPA’s regulations
provided states with the option of
implementing an emissions trading
program or other alternative measure in
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lieu of BART so long as the alternative
would result in greater reasonable
progress than BART. We note that this
interpretation of CAA Section
169A(B)(2) was determined to be
reasonable by the D.C. Circuit in Center
for Energy and Economic Development
v. EPA, 398 F.3d 653, 659–660 (D.C. Cir.
2005) in a challenge to the backstop
market trading program under Section
309, and again found to reasonable by
the D.C. Circuit in Utility Air Regulatory
Group v. EPA, 471 F.3d 1333, 1340 (D.C.
Cir. 2006) (‘‘* * * [W]e have already
held in CEED that EPA may leave states
free to implement BART-alternatives so
long as those alternatives also ensure
reasonable progress.’’). Our regulations
for alternatives to BART, including the
provisions for a backstop trading
program under Section 309, are
therefore consistent with the Clean Air
Act and not in issue in this action
approving a SIP submitted under those
regulations. We have reviewed the
submitted 309 trading program SIPs to
determine whether each has the
required backstop trading program (see
40 CFR 51.309(d)(4)(v)), and whether
the features of the program satisfy the
requirements for trading programs as
alternatives to BART (see 40 CFR
51.308(e)(2)). Our regulations make
clear that any market trading program as
an alternative to BART contemplates
market participation from a broader list
of sources than merely those sources
that are subject to BART. See 40 CFR
51.308(e)(2)(i)(B).
Comment: The submitted 309 Trading
Program is defective because only 3 of
9 Transport States remain in the
program. The Grand Canyon Visibility
Transport Commission Report clearly
stated that the program must be
‘‘comprehensive.’’ The program fails to
include the other Western States that
account for the majority of sulfate
contribution in the Class I areas of
participating States, and therefore Class
I areas on the Colorado Plateau will see
little or no visibility benefit. Nonparticipation by other Transport Region
States compounds the program’s
deficiencies.
Response: We disagree that the 309
trading program is defective because
only 3 States remain in the program.
EPA’s regulations do not require a
minimum number of Transport Region
States to participate in the 309 trading
program, and there is no reason to
believe that the limited participation by
the 9 Transport States will limit the
effectiveness of the program in the 3
States that have submitted 309 SIPs. The
commenter’s argument is not supported
by the regional haze regulations and is
demonstrably inconsistent with the
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resource commitments of the Transport
Region States that have worked for
many years in the WRAP to develop and
submit SIPs to satisfy 40 CFR 51.309. At
the outset, our regulations affirm that
‘‘certain States * * * may choose’’ to
comply with the 40 CFR 51.309
requirements and conversely that ‘‘[a]ny
Transport Region State [may] elect not
to submit an implementation plan’’ to
meet the optional requirements. 40 CFR
51.309(a); see also 40 CFR 51.309(f). We
have also previously observed how the
WRAP, in the course of developing its
technical analyses as the framework for
a trading program, ‘‘understood that
some States and Tribes may choose not
to participate in the optional program
provided by 40 CFR 51.309.’’ 68 FR
33769 (June 5, 2003). Only five of nine
Transport Region States initially opted
to participate in the backstop trading
program in 2003, and of those initial
participants only Oregon and Arizona
later elected not to submit 309 SIPs.
We disagree with the commenter’s
assertion that Class I areas on the
Colorado Plateau will see little or no
visibility benefit. Non-participating
States must account for sulfate
contributions to visibility impairment at
Class I areas by addressing all
requirements that apply under 40 CFR
51.308. To the extent Wyoming, New
Mexico and Utah sources ‘‘do not
account for the majority of sulfate
contribution’’ at the 16 class I areas on
Colorado Plateau, there is no legal
requirement that they account for SO2
emissions originating from sources
outside these participating States. Aside
from this, the modeling results detailed
in the proposed rulemaking show
projected visibility improvement for the
20 percent worst days in 2018 and no
degradation in visibility conditions on
the 20 percent best days at all 16 of the
mandatory Class I areas under the
submitted 309 plan.
Finally, we do not agree with the
commenter’s characterization of the
Grand Canyon Visibility Transport
Commission Report, which used the
term ‘‘comprehensive’’ only in stating
the following:
‘‘It is the intent of [the recommendation for
an incentive-based trading program] that [it]
include as many source categories and
species of pollutants as is feasible and
technically defensible. This preference for a
‘comprehensive’ market is based upon the
expectation that a comprehensive program
would be more effective at improving
visibility and would yield more cost-effective
emission reduction strategies for the region
as a whole.’’ 2
2 The Grand Canyon Visibility Transport
Commission, Recommendations for Improving
Western Vistas at 32 (June 10, 1996).
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It is apparent that the Grand Canyon
Visibility Transport Commission
recommended comprehensive source
coverage to optimize the market trading
program. This does not necessitate or
even necessarily correlate with
geographic comprehensiveness as
contemplated by the comment. We note
that the submitted backstop trading
program does in fact comprehensively
include ‘‘many source categories,’’ as
may also be expected for any intrastate
trading program that any state could
choose to develop and submit under 40
CFR 51.308(e)(2). As was stated in our
proposal, section 51.309 does not
require the participation of a certain
number of States to validate its
effectiveness.
Comment: The submitted 309 trading
program is defective because the
pollutant reductions from participating
States have little visibility benefit in
each other’s Class I areas. The States
that have submitted 309 SIPs are
‘‘largely non-contiguous’’ in terms of
their physical borders and their air shed
impacts. Sulfate emissions from each of
the participating States have little effect
on Class I areas in other participating
States.
Response: We disagree. The 309
program was designed to address
visibility impairment for the sixteen
Class I areas on the Colorado Plateau.
New Mexico, Wyoming and Utah are
identified as Transport Region States
because the Grand Canyon Visibility
Transport Commission had determined
they could impact the Colorado Plateau
class I areas. The submitted trading
program has been designed by these
Transport Region States to satisfy their
requirements under 40 CFR 51.309 to
address visibility impairment at the
sixteen Class I areas. The strategies in
these plans are directed toward a
designated clean-air corridor that is
defined by the placement of the 16 Class
I areas, not the placement of state
borders. ‘‘Air sheds’’ that do not relate
to haze at these Class I areas or that
relate to other Class I areas are similarly
not relevant to whether the
requirements for an approvable 309
trading program are met. As applicable,
any Transport Region State
implementing the provisions of Section
309 must also separately demonstrate
reasonable progress for any additional
mandatory Class I Federal areas other
than the 16 Class I areas located within
the state. See 40 CFR 51.309(g). More
broadly, the State must submit a longterm strategy to address these additional
Class I areas as well as those Class I
areas located outside the state which
may be affected by emissions from the
State. 40 CFR 51.309(g) and
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51.308(d)(2). In developing long-term
strategies, the Transport Region States
may take full credit for visibility
improvements that would be achieved
through implementation of the strategies
required by 51.309(d). A state’s
satisfaction of the requirements of
51.309(d), and specifically the
requirement for a backstop trading
program, is evaluated independently
from whether a state has satisfied the
requirements of 51.309(g). In neither
case, however, does the approvability
inquiry center on the location or
contiguousness of state borders.
Comment: The emission benchmark
used in the submitted 309 trading
program is inaccurate. The ‘‘better-thanBART’’ demonstration needs to analyze
BART for each source subject to BART
in order to evaluate the alternative
program. The submitted 309 trading
program has no BART analysis. The
‘‘better-than-BART’’ demonstration does
not comply with the regional haze
regulations when it relies on the
presumptive SO2 emission rate of 0.15
lb/MMBtu for most coal-fired EGUs. The
presumptive SO2 limits are
inappropriate because EPA has
elsewhere asserted that ‘‘presumptive
limits represented control capabilities at
the time the BART Rule was
promulgated, and that [EPA] expected
that scrubber technology would
continue to improve and control costs
would continue to decline.’’ 77 Fed.
Reg. 14614 (March 12, 2012).
Response: We disagree that the
submitted 309 trading program requires
an analysis that determines BART for
each source subject to BART. Source
specific BART determinations are not
required to support the better-thanBART demonstration when the
‘‘alternative measure has been designed
to meet a requirement other than
BART.’’ See 40 CFR 51.308(e)(2)(i)(C).
The requirements of Section 309 are
meant to implement the
recommendations of the Grand Canyon
Visibility Transport Commission and
are regulatory requirements ‘‘other than
BART’’ that are part of a long-term
strategy to achieve reasonable progress.
As such, in its analysis, the State may
assume emission reductions ‘‘for similar
types of sources within a source
category based on both source-specific
and category-wide information, as
appropriate.’’ See id. The 309 States
used this approach in developing their
emission benchmark, and we view it to
be consistent with what we have
previously stated regarding the
establishment of a BART benchmark.
Specifically, we have explained that
States designing alternative programs to
meet requirements other than BART
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‘‘may use simplifying assumptions in
establishing a BART benchmark based
on an analysis of what BART is likely
to be for similar types of sources within
a source category.’’ 71 FR 60619 (Oct.
13, 2006).
We also previously stated that ‘‘we
believe that the presumptions for EGUs
in the BART guidelines should be used
for comparisons to a trading program or
other alternative measure, unless the
State determines that such
presumptions are not appropriate.’’ Id.
Our reasoning for this has also long
been clear. While EPA recognizes that a
case-by-case BART analysis may result
in emission limits more stringent than
the presumptive limits, the presumptive
limits are reasonable and appropriate for
use in assessing regional emissions
reductions for the better than BART
demonstration. See 71 FR 60619 (‘‘the
presumptions represent a reasonable
estimate of a stringent case BART
because they would be applied across
the board to a wide variety of units with
varying impacts on visibility, at power
plants of varying size and distance from
Class I areas’’). EPA’s expectation that
scrubber technology would continue to
improve and that control costs would
continue to decline is a basis for not
regarding presumptive limits as a
default or safe harbor BART
determination when the BART
Guidelines otherwise call for a
complete, case-by-case analysis. We
believe it was reasonable for the
developers of the submitted trading
program to use the presumptive limits
for EGUs in establishing the emission
benchmark, particularly since the
methodology used to establish the
emission benchmark was established
near in time to our promulgation of the
presumptive limits as well as our
guidance that they should be used. We
do not think the assumptions used at
the time the trading program was
developed, including the use of
presumptive limits, were unreasonable.
Moreover, the commenter has not
demonstrated how the use of
presumptive limits as a simplifying
assumption at that time, or even now,
would be flawed merely because EPA
expects that scrubber technology and
costs will continue to improve.
Comment: The presumptive SO2
emission rate overstates actual
emissions from sources that were
included in the BART benchmark
calculation. In addition, States in the
Grand Canyon Visibility Transport
Region have established or proposed
significantly more stringent BART limits
for SO2. Using actual SO2 emission data
for EGUs, SO2 emissions would be
130,601 tpy, not the benchmark of
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141,859 tpy submitted in the 309
trading program. Using a combination of
actual emissions and unit-specific
BART determinations, the SO2
emissions would be lower still at
123,529 tpy. Finally, the same data EPA
relied on to support its determination
that reductions under the Cross State
Air Pollution Rule are ‘‘better-thanBART’’ would translate to SO2
emissions of 124,740 tpy. These
analyses show the BART benchmark is
higher than actual SO2 emissions
reductions achievable through BART. It
follows that the submitted 309 trading
program is flawed because it cannot be
deemed to achieve ‘‘greater reasonable
progress’’ than BART.
Response: The BART benchmark
calculation does not overstate emissions
because it was not intended to assess
actual emissions at BART subject
sources nor was it intended to assess the
control capabilities of later installed
controls. Instead, the presumptive SO2
emission rate served as a necessary
simplifying assumption. When the
States worked to develop the 309
trading program, they could not be
expected to anticipate the future
elements of case-by-case BART
determinations made by other States (or
EPA, in the case of a BART
determination through any federal
implementation plan), nor could they be
expected to anticipate the details of
later-installed SO2 controls or the future
application of enforceable emission
limits to those controls. The emissions
projections by the WRAP incorporated
the best available information at the
time from the states, and utilized the
appropriate methods and models to
provide a prediction of emissions from
all source categories in this planning
period. In developing a profile of
planning period emissions to support
each state’s reasonable progress goals, as
well as the submitted trading program,
it was recognized that the final control
decisions by all of the states were not
yet complete, including decisions as
they may pertain to emissions from
BART eligible sources. Therefore, we
believe it is appropriate that the analysis
and demonstration is based on data that
was available to the States at the time
they worked to construct the SO2
trading program. The States did make
appropriate adjustments based on
information that was available to them
at the time. Notably, the WRAP
appropriately adjusted its use of the
presumptive limits in the case of
Huntington Units 1 and 2 in Utah,
because those units were already subject
to federally enforceable SO2 emission
rates that were lower than the
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presumptive rate. The use of actual
emissions data after the 2006 baseline is
not relevant to the demonstration that
has been submitted.
Comment: SO2 emissions under the
309 trading program would be
equivalent to the SO2 emissions if
presumptive BART were applied to each
BART-subject source. Because the
reductions are equivalent, the submitted
309 trading program does not show, by
‘‘the clear weight of the evidence,’’ that
the alternative measure will result in
greater reasonable progress than would
be achieved by requiring BART. In view
of the reductions being equivalent, it is
not proper for EPA to rely on ‘‘nonquantitative factors’’ in finding that the
SO2 emissions trading program achieves
greater reasonable progress.
Response: We recognize that the 2018
SO2 milestone equals the BART
benchmark and that the benchmark
generally utilized the presumptive
limits for EGUs, as was deemed
appropriate by the States who worked
together to develop the trading program.
If the SO2 milestone is exceeded, the
trading program will be activated. We
note, moreover, that the 2018 milestone
constitutes an emissions cap on sulfur
dioxide emissions that will persist after
2018.3 Under this framework, sources
that would otherwise be subject to the
trading program have incentives to
make independent reductions to avoid
activation of the trading program. We
cannot discount that the 2003 309 SIP
submittal may have already influenced
sources to upgrade their plants before
any case-by-case BART determination
under Section 308 may have required it.
In addition, the trading program was
designed to encourage early reductions
by providing extra allocations for
sources that made reductions prior to
the program trigger year. Permitting
authorities that would otherwise permit
increases in SO2 emissions for new
sources would be equally conscious of
the potential impacts on the
achievement of the milestone. We note
that the most recent emission report for
the year 2010 shows a 35% reduction in
emissions from 2003. The 309 trading
program is designed as a backstop such
that sources would work to accomplish
emission reductions through 2018 that
would be superior to the milestone and
the BART benchmark. If instead the
backstop trading program is triggered,
the sources subject to the program
would be expected to make any
reductions necessary to achieve the
3 The trading program can only be replaced via
future SIP revisions submitted for EPA approval
that will meet the BART and reasonable progress
requirements of 51.308. See 40 CFR
51.309(d)(4)(vi)(A).
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emission levels consistent with each
source’s allocation. We do not believe
that the ‘‘clear weight of the evidence’’
determination referenced in 40 CFR
51.308(e)(2)(E)—in short, a
determination that the alternative
measure of the 309 trading program
achieves greater reasonable progress
than BART—should be understood to
prohibit setting the SO2 milestone to
equal the BART benchmark. Our
determination that the 2018 SO2
milestone and other design features of
the 309 SIP will achieve greater
reasonable progress than would be
achieved through BART is based on our
understanding of how the SIP will
promote and sustain emission
reductions of SO2 as measured against a
milestone. Sources will be actively
mindful of the participating states’
emissions inventory and operating to
avoid exceeding the milestone, not
trying to maximize their emissions to be
equivalent to the milestone, as this
comment suggests.
Comment: In proposing to find that
the SO2 trading program achieves
greater reasonable progress than BART,
EPA’s reliance on the following features
of the 309 trading program is flawed:
Non-BART emission reductions, a cap
on new growth, and a mass-based cap
on emissions. The reliance on nonBART emission reductions is ‘‘a hollow
promise’’ because there is no evidence
that the trading program will be
triggered for other particular emission
sources, and if the program is never
triggered there will be no emission
reductions from smaller non-BART
sources. The reliance on a cap on future
source emissions is also faulty because
there is no evidence the trading program
will be triggered, and thus the cap may
never be implemented. Existing
programs that apply to new sources will
already ensure that SO2 emissions from
new sources are reduced to the
maximum extent. EPA’s discussion of
the advantages of a mass-based cap is
unsupported and cannot be justified.
EPA wrongly states that a mass-based
cap based on actual emissions is more
stringent than BART. There should not
be a meaningful gap between actual and
allowable emissions under a proper
BART determination. A mass-based cap
does not effectively limit emissions
when operating at lower loads and, as
an annual cap, does not have restrictive
compliance averaging. EPA’s argument
implies that BART limits do not apply
during startup, shutdown or
malfunction events, which is not
correct. The established mass-based cap
would allow sources to operate their
SO2 controls less efficiently, because
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some BART-subject EGUs already
operate with lower emissions than the
presumptive SO2 emission rate of 0.15
lb/MMBtu and because some EGUs were
assumed to be operating at 85%
capacity when their capacity factor (and
consequently their S02 emissions in tpy)
was lower.
Response: We disagree that it is
flawed to assess the benefits found in
the distinguishing features of the trading
program. The backstop trading program
is not specifically designed so that it
will be activated. Instead sources that
are covered by the program are on
notice that it will be triggered if the
regulatory milestones are not achieved.
Therefore, the backstop trading program
would be expected to garner reductions
to avoid its activation. It also remains
true that if the trading program is
activated, all sources subject to the
program, including smaller non-BART
sources would be expected to secure
emission reductions as may be
necessary to meet their emission
allocation under the program
We also disagree that the features of
the 2018 milestone as a cap on future
source emissions and as a mass-based
cap has no significance. As detailed in
our proposal, the submitted SIP is
consistent with the requirement that the
2018 milestone does indeed continue as
an emission cap for SO2 unless the
milestones are replaced by a different
program approved by EPA as meeting
the BART and reasonable progress
requirements under 51.308. Future
visibility impairment is prevented by
capping emissions growth from those
sources not eligible under the BART
requirements, BART sources, and from
entirely new sources in the region. The
benefits of a milestone are therefore
functionally distinct from the control
efficiency improvements that could be
gained at a limited number of BART
subject sources. While BART-subject
sources may not be operating at 85%
capacity today, we believe the WRAP’s
use of the capacity assumption in
consideration of projected future energy
demands in 2018 was reasonable for
purposes of the submitted
demonstration. While BART requires
BART subject sources to operate SO2
controls efficiently, this does not mean
that an alternative to BART thereby
allows, encourage, or causes sources to
operate their controls less efficiently.
On the contrary, we find that the SIP,
consistent with the well-considered 309
program requirements, functions to the
contrary. Sources will be operating their
controls in consideration of the
milestone and they also remain subject
to any other existing or future
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requirements for operation of SO2
controls.
We also disagree with the
commenter’s contention that existing
programs are equivalent in effect to the
emissions cap. EPA’s new source review
programs are designed to permit, not
cap, source growth, so long as the
national ambient air quality standards
and other applicable requirements can
be achieved. Moreover, we have not
argued that BART does not apply at all
times or that emission reductions under
the cap are meant to function as
emission limitations are made to meet
the definition of BART (40 CFR 51.301).
The better-than-BART demonstration is
not, as the comment would have it,
based on issues of compliance averaging
or how a BART limit operates in
practice at an individual facility.
Instead, it is based on whether the
submitted SIP follows the regulatory
requirements for the demonstration and
evidences comparatively superior
visibility improvements for the Class I
areas it is designed to address.
Comment: The submitted 309 SIP will
not achieve greater reasonable progress
than would the requirement for BART
on individual sources. The BART
program ‘‘if adequately implemented’’
will promote greater reasonable
progress, and EPA should require BART
on all eligible air pollution sources in
the state. EPA’s proposed approval of
the 309 trading program is ‘‘particularly
problematic’’ where the BART sources
cause or contribute to impairment at
Class I areas which are not on the
Uniform Rate of Progress glide-path
towards achieving natural conditions.
EPA should require revisions to provide
for greater SO2 reductions in the 309
program, or it should require BART
reductions on all sources subject to
BART for SO2.
Response: We disagree with the issues
discussed in this comment. As
discussed in other comments, we have
found that the state’s SIP submitted
under the 309 program will achieve
greater reasonable progress than sourceby-source BART. As the regulations
housed within section 51.309 make
clear, States have an opportunity to
submit regional haze SIPs that provide
an alternative to source-by-source BART
requirements. Therefore, the
commenter’s assertion that we should
require BART on all eligible air
pollution sources in the state is
fundamentally misplaced. The
commenter’s use of the Uniform Rate of
Progress (URP) as a test that should
apparently be applied to the adequacy
of the 309 trading program as a BART
alternative is also misplaced, as there is
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no requirement in the regional haze rule
to do so.
Comment: The 309 trading program
must be disapproved because it does not
provide for ‘‘steady and continuing
emissions reductions through 2018’’ as
required by 40 CFR 51.309(d)(4)(ii). The
program establishes its reductions
through milestones that are set at three
year intervals. It would be arbitrary and
capricious to conclude these reductions
are ‘‘steady’’ or ‘‘continuous.’’
Response: We disagree and find that
the reductions required at each
milestone demonstrate steady and
continuing emissions reductions. The
milestones do this by requiring regular
decreases. These decreases occur in
intervals ranging from one to three years
and include administrative evaluation
periods with the possibility of
downward adjustments of the
milestone, if warranted. The interval
under which ‘‘steady and continuing
emissions reductions through 2018’’
must occur is not defined in the regional
haze rule. We find the milestone
schedule and the remainder of the
trading program submitted by City of
Albuquerque-Bernalillo County does in
fact reasonably provide for ‘‘steady and
continuing emissions reductions
through 2018.’’
Comment: The WRAP attempts to
justify the SO2 trading program because
SO2 emissions have decreased in the
three Transport Region states relying on
the alternative program by 33% between
1990–2000. The justification fails
because the reductions were made prior
to the regional haze rule. The reliance
on reductions that predate the regional
haze rule violates the requirement of 40
CFR 51.308(e)(2)(iv) that BART
alternatives provide emission
reductions that are ‘‘surplus’’ to those
resulting from programs implemented to
meet other Clean Air Act Requirements.
Response: We did not focus on the
WRAP’s discussion of early emission
reductions in our proposal. However,
we do not agree with this comment. The
WRAP’s statements regarding past air
quality improvements are not contrary
to the requirement that reductions
under a trading program be surplus.
Instead, the WRAP was noting that
forward-planning sources had already
pursued emission reductions that could
be partially credited to the design of the
309 SIP. We note that the most recent
emission report for the year 2010 shows
a 35% reduction in emissions from
2003. Sources that make early
reductions prior to the program trigger
year may acquire extra allocations
should the program be triggered. This is
an additional characteristic feature of
the backstop trading program that
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suggests benefits that would be realized
even without triggering of the program
itself. The surplus emission reduction
requirement for the trading program is
not in issue, because the existence of
surplus reductions is studied against
other reductions that are realized ‘‘as of
baseline date of the SIP.’’ The 1990–
2000 period plainly falls earlier than the
baseline date of the SIP, so we disagree
that the WRAP’s discussion of that
period was problematic or violative of
40 CFR 51.308(e)(2)(iv), regarding
surplus reductions.
Comment: EPA must correct
discrepancies between the data
presented in the 309 SIP submittals.4
There are discrepancies in what has
been presented as the results of WRAP
photochemical modeling. The New
Mexico RH SIP proposal by EPA shows,
for example, that the 20% worst days at
Grand Canyon National Park have
visibility impairment of 11.1 deciviews,
while the other EPA proposals show
11.3 deciviews. The discrepancy
appears to be due to the submittals
being based on different modeling
scenarios developed by the WRAP. EPA
must explain and correct the
discrepancies and ‘‘re-notice’’ a new
proposed rule containing the correct
information.
Response: We agree that there are
discrepancies in the numbers in Table 1
of the proposal notices. The third
column of the table below shows the
modeling results presented in Table 1 of
the Albuquerque, Wyoming and Utah
proposals. The modeling results in the
New Mexico proposal Table 1 are
shown in the fourth column. The
discrepancies come from the State’s
using different preliminary reasonable
progress cases developed by the WRAP.
The Wyoming, Utah and Albuquerque
proposed notices incorrectly identify
the Preliminary Reasonable Progress
case as the PRP18b emission inventory
instead of correctly identifying the
presented data as modeled visibility
based on the ‘‘prp18a’’ emission
inventory. The PRP18a emission
inventory is a predicted 2018 emission
inventory with all known and expected
controls as of March 2007. The
preliminary reasonable progress case
(‘‘PRP18b’’) used by New Mexico is the
more updated version produced by the
WRAP with all known and expected
controls as of March 2009. Thus, we are
correcting Table 1, column 5 in the
4 This particular comment was not submitted in
response to the proposal to approve Albuquerque’s
309 trading program, the earliest published
proposal. It was consistently submitted in the
comment periods for the proposals to approve the
309 trading programs for NM, WY and UT, which
were later in time.
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Wyoming, Utah and Albuquerque of our
proposed notices to include model
results from the PRP18b emission
inventory, consistent with the New
Mexico proposed notice and the fourth
column in the table below. We are also
correcting the description of the
Preliminary Reasonable Progress Case
(referred to as the PRP18b emission
inventory and modeled projections) to
reflect that this emission inventory
includes all controls ‘‘on the books’’ as
of March 2009.
Class I area
State
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Grand Canyon National Park ....................................................................................................................
Mount Baldy Wilderness ...........................................................................................................................
Petrified Forest National Park ...................................................................................................................
Sycamore Canyon Wilderness .................................................................................................................
Black Canyon of the Gunnison National Park Wilderness .......................................................................
Flat Tops Wilderness ................................................................................................................................
Maroon Bells Wilderness ..........................................................................................................................
Mesa Verde National Park ........................................................................................................................
Weminuche Wilderness ............................................................................................................................
West Elk Wilderness .................................................................................................................................
San Pedro Parks Wilderness ....................................................................................................................
Arches National Park ................................................................................................................................
Bryce Canyon National Park ....................................................................................................................
Canyonlands National Park ......................................................................................................................
Capitol Reef National Park .......................................................................................................................
Zion National Park ....................................................................................................................................
Section 309 requires Transport Region
States to include a projection of the
improvement in visibility expected
through the year 2018 for the most
impaired and least impaired days for
each of the 16 Class I areas on the
Colorado Plateau. 40 CFR 51.309(d)(2).
As explained in the preamble to the
1999 regional haze regulations, EPA
included this requirement to ensure that
the public would be informed on the
relationship between chosen emissions
control measures and their effect on
visibility. 64 FR at 35751. Given the
purpose of this requirement, we do not
consider the discrepancies noted above
to be significant and are not re-noticing
our proposed rulemaking as the
discrepancies do not change our
proposed conclusion that SIP submitted
by City of Albuquerque—Bernalillo
County contains reasonable projections
of the visibility improvements expected
at the 16 Class I areas at issue. The
PRP18a modeling results show
projected visibility improvement for the
20 percent worst days from the baseline
period to 2018. The PRP18b modeling
results show either the same or
additional visibility improvement on
the 20 percent worst days beyond the
PRP18a modeling results. We also note
there are two discrepancies in New
Mexico’s Table 1, column four
compared to the other participating
States’ notices. The 2018 base case
visibility projection in the New Mexico
proposed notice for Black Canyon of the
Gunnison National Park Wilderness and
Weminuche Wilderness should be
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corrected to read 10.1 deciview rather
than 10.0. Notwithstanding the
discrepancies described above, we
believe that the BC SIP adequately
projects the improvement in visibility
for purposes of Section 309.
B. Additional Comments
Comment: The regional haze
regulations at 40 CFR 51.308(e)(2)(i)(B)
require that ‘‘each BART-eligible source
in the State must be subject to the
requirements of the alternative program,
[and] have a federally enforceable
emission limitation determined by the
State and approved by EPA as meeting
BART * * *’’ The sole coal-fired
electric generating units (‘‘EGUs’’) that
are subject to BART in New Mexico are
the four units at the San Juan Generating
Station (‘‘SJGS’’). While the BC RH SIP
lists SJGS as a BART eligible source, it
fails to identify a federally enforceable
emission limitation for SO2 that is
determined to be BART by the State and
has been approved by EPA as meeting
BART. As such, the BC RH SIP fails to
comply with 40 CFR 51.308(e)(2)(i)(B).
Response: This comment presents a
flawed reading of our regulations by
inserting the word ‘‘and’’ where it does
not, in fact, appear in the language of 40
CFR 51.308(e)(2)(i)(B). 40 CFR
51.308(e)(2)(i)(B) requires that ‘‘each
BART-eligible source in the State must
be subject to the requirements of the
alternative program, have a federally
enforceable emission limitation
determined by the State and approved
by EPA as meeting BART in accordance
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AZ
AZ
AZ
AZ
CO
CO
CO
CO
CO
CO
NM
UT
UT
UT
UT
UT
2018
Preliminary
reasonable
progress
PRP18a case
(deciview)
2018
Preliminary
reasonable
progress
PRP18b case
(deciview)
11.3
11.4
12.9
15.1
9.9
9.0
9.0
12.6
9.9
9.0
9.8
10.9
11.2
10.9
10.5
13.0
11.1
11.5
12.8
15.0
9.8
9.0
9.0
12.5
9.8
9.0
9.8
10.7
11.1
10.7
10.4
12.8
with section 302(c) or paragraph (e)(1)
of this section, or otherwise addressed
under paragraphs (e)(1) or (e)(4) of this
section.’’ This section of the rule
requires that each BART-eligible source
be covered by the alternative program or
satisfy the BART requirements by either
participation in a ‘‘Transport Rule
Federal Implementation Plan’’ under
paragraph (e)(4) or by determining
BART for the source under paragraph
(e)(1). Because there are no BARTeligible sources in Bernalillo County,
the requirement to make BART
determinations does not apply. As was
detailed in the proposal, the alternative
program satisfies the requirements of 40
CFR 51.308(e)(2)(i)(B), because all
BART-eligible sources are covered by
the alternative program. We also note
the alternative program goes further to
additionally cover point sources that
have actual emissions of SO2 greater
than 100 tons per year (sources meeting
the requirements of 20.2.81.101.
NMAC).
Comment: The BC RH SIP also fails to
comply with 40 CFR 51.309(g), which
requires that SIPs address impacts to
Class I areas not located on the Colorado
plateau. 40 CFR 51.309(g). States are
required to submit air quality modeling
or other reliable evidence revealing
visibility impacts and establishing that
reasonable progress goals will be met. In
December 2010 and February 2011, EPA
informed Bernalillo County that its SIP
failed to comply with 40 CFR
51.309(g)(1) and (2) because it did not
submit evidence showing Bernalillo
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County’s effects on visibility in Class I
areas in New Mexico, such as Gila
Wilderness and Carlsbad Cavern. EPA
Docket EPA–R06–OAR–2008–0702–
0011 at pages 110–111 and 126–127.
EPA determined that SO2 emissions in
New Mexico were projected to increase
from 4,966 tpy in 2002 to 14,073 tpy by
2018 with nearly 30% of the 2018
emissions coming from Bernalillo
County. Id. EPA also determined that a
significant increase in NOX emissions
from Bernalillo County was projected to
occur over this same time period. Id.
EPA asked Bernalillo County to conduct
visibility modeling to determine its
impacts to Class I areas and to explain
how reasonable progress goals would be
met in light of significant emissions
increases. Id.
The commenters state that they were
unable to identify any visibility
modeling or other analysis conducted
by Bernalillo County to address EPA’s
concerns. The commenters request an
opportunity to review any visibility
modeling or related analysis and that
EPA reject the BC RH SIP until these
issues are fully addressed.
Response: The letters referred to by
the commenter state that the analysis
with regard to the requirements of 40
CFR 51.309(g)(1) and (2) in BC’s draft
SIP revision shared with EPA in 2010
may be incomplete. Specifically, the
qualitative analysis provided in
‘‘Appendix 2007–H’’ and ‘‘Addendum
to Appendix 2007–H’’ addressed the
impact of BC’s emissions on nearby
Class I areas, but did not include
information on the inaccuracy and overprediction in the 2018 WRAP emission
projections for NOX and SO2 emissions
in BC, or the effect of an accurate
emission inventory with respect to
modeled visibility degradation at Gila
Wilderness and Carlsbad Caverns.
With respect to the above mentioned
modeled degradation at Gila
Wilderness, an error in data retrieval
affected initial results for modeled
visibility conditions at Gila Wilderness
in 2002 and indicated that visibility
would degrade from 2002 to 2018. This
error was corrected and the updated
submitted data indicates a predicted
improvement in visibility conditions on
the 20% worst days and no degradation
of visibility on the 20% best days.5 For
Carlsbad Caverns, NMED provided
modeling data that demonstrates that
significant projected growth in
emissions by 2018 from Mexico are
responsible for the degradation in
5 Correction of WRAP region Plan02d CMAQ
visibility modeling results on TSS for Regional
Haze Planning—Final Memorandum, June 30, 2011,
available at: https://vista.cira.colostate.edu/tss/help/
plan02d_rev.pdf.
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visibility conditions on the 20% best
days at this Class I area (Section 11.3.3
of the NM RH 309(g) SIP submittal).
WRAP visibility modeling results with
Mexico emissions held constant from
2002 to 2018 show a slight improvement
in visibility conditions at Carlsbad
Caverns on the 20% best days.
Therefore, the initial modeled visibility
degradation at both Gila Wilderness and
Carlsbad Caverns was addressed
without a need to further evaluate the
impact of over-estimated NOX and SO2
emissions in BC.
Furthermore, BC provided additional
information in Appendix 2010–B of the
BC RH SIP 6 that included an evaluation
of emission inventory trends for 2002,
2005, and 2008 for NOX and SO2
emissions for Bernalillo County. The
analysis in the BC RH SIP submittal
identifies some inaccuracies in the
emission inventories used by the WRAP
to model the 2002 baseline and the 2018
future case. The 2002 and 2018
emission projections are higher than
expected when compared to the
reduction in SO2 emissions observed in
the actual emissions inventories for
2002, 2005 and 2008. Table 5 of our
proposed approval of the BC RH SIP (77
FR 24790) shows a comparison of
emission data from Bernalillo County
and a trend of decreasing emissions
compared to emissions included in the
WRAP estimates and photochemical
modeling, projecting a large increase of
both NOx and SO2. Based on the
information provided in BC RH SIP
submittal, we agree with the
determination that visibility impacts at
the nearby Class I areas due to area and
mobile emission sources in Bernalillo
County are overestimated in the WRAP
2002 and 2018 visibility modeling. The
emission trends for 2002 through 2008
(BC RH SIP submittal Appendix 2010–
B) indicate that emissions of NOX and
SO2 within Bernalillo County are
declining and therefore visibility
impairment due to these emissions are
also anticipated to decrease from their
current low levels presented in
Appendix 2007–H and in the addendum
to Appendix 2007–H of the BC RH SIP.
We find that BC adequately evaluated
the Class I areas that may be impacted
by sources of air pollution within
Bernalillo County and BC adequately
determined and demonstrated that, at
this time, it is improbable that sources
located within the county cause or
contribute to visibility impairment in a
Class I area located outside of the
county. The BC RH SIP submittal
6 AQD exhibit#5 EPA Docket EPA–R06–OAR–
2008–0702–0013 beginning at page 227.
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71127
therefore complies with 40 CFR
51.309(g)(1) and (2).
Comment: Section 51.308(d)(1)(vi)
states, ‘‘[t]he State may not adopt a
reasonable progress goal that represents
less visibility improvement than is
expected to result from implementation
of other requirements of the CAA during
the applicable planning period. 40 CFR
51.308(d)(1)(vi). Since the BC RH SIP’s
reasonable progress goals would result
in less visibility improvement than
would be achieved through application
of BART, the BC RH SIP’s reasonable
progress goals must be revised to reflect
reductions achievable through BART.
Response: There are no Class I areas
within Bernalillo County, therefore BC
is not required to nor did they adopt
reasonable progress goals for any Class
I area. BC is required to address the
apportionment of visibility impact from
the emissions generated by sources
within Bernalillo County at Class I areas
outside of the county borders. As
discussed above, we find that BC
adequately evaluated the Class I areas
that may be impacted by sources of air
pollution within Bernalillo County and
BC adequately determined and
demonstrated that, at this time, it is
improbable that sources located within
the county cause or contribute to
visibility impairment in a Class I area
located outside of the county.
In addition, no sources in Bernalillo
County satisfy the definition for BARTeligible sources at 40 CFR 51.301.
Therefore, no visibility improvement is
anticipated due to the application of
BART within Bernalillo County. We
note, that BC is participating in the SO2
emission milestone and backstop
trading program. This program applies
to all SO2 point sources over 100 tons
per year and requires that emissions in
the participating States and BC remain
below the established milestone or
result in the triggering of the 309
backstop trading program. The
milestone caps these sources at actual
emissions, and the program also
provides for a cap on new source
growth. The milestone schedule and the
trading program submitted by BC and
the participating states provide for
steady and continuing emissions
reductions through 2018.
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
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the criteria of the Clean Air Act.
Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
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methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law. Consistent with EPA policy,
EPA nonetheless offered consultation to
tribes regarding the rulemaking action
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by January 28, 2013.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxides,
Visibility, Regional haze, Best available
control technology, Interstate transport
of pollution, Visibility.
Dated: November 13, 2012.
Ron Curry,
Regional Administrator, Region 6.
40 CFR part 52 is amended to read as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart GG—New Mexico
2. Section 52.1620 is amended:
a. In paragraph (c), under the second
table entitled ‘‘EPA Approved
Albuquerque/Bernalillo County, NM
Regulations’’ by revising the entry for
part 21 (20.11.21 NMAC), Open Burning
and adding an entry in sequential order
for ‘‘Part 46 (20.11.46 NMAC)’’.
■ b. In paragraph (e), under the second
table entitled ‘‘EPA Approved
Nonregulatory Provisions and QuasiRegulatory Measures in The New
Mexico SIP’’ by adding new entries to
the end of the table for ‘‘Interstate
transport for the 1997 ozone and PM2.5
NAAQS’’ and ‘‘Regional Haze SIP under
40 CFR 51.309’’.
The amendments read as follows:
■
■
§ 52.1620
*
Identification of plan.
*
*
(c) * * *
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*
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Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Rules and Regulations
EPA APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS
State citation
State
approval/
effective
date
Title/subject
EPA approval date
Explanation
New Mexico Administrative Code (NMAC) Title 20—Environment Protection Chapter 11—Albuquerque/Bernalillo County Air Quality
Control Board
*
Part 21 (20.11.21
NMAC).
*
*
*
Open Burning ....................................................
*
*
11/29/12 and FR page
number where document begins].
*
7/11/2011
*
Part 46 (20.11.46
NMAC).
*
*
*
Sulfur Dioxide Emission Inventory Requirements; Western Backstop Sulfur Dioxide
Trading Program.
*
*
11/29/12 and FR page
number where document begins].
*
5/16/2011
*
*
*
*
*
*
*
(e) * * *
EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE NEW MEXICO SIP
Name of SIP provision
Applicable geographic
or nonattainment area
State
submittal/
effective
date
*
Interstate transport for
the 1997 ozone and
PM2.5 NAAQS.
*
*
Bernalillo County ...........
7/30/2007
Regional Haze SIP
under 40 CFR 51.309.
Bernalillo County ...........
7/28/2011
[FR Doc. 2012–28822 Filed 11–28–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2012–0252; FRL–9737–1]
Revisions to the California State
Implementation Plan, San Joaquin
Valley United Air Pollution Control
District (SJVUAPCD) and South Coast
Air Quality Management District
(SCAQMD)
Environmental Protection
Agency (EPA).
ACTION: Final rule.
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AGENCY:
EPA is finalizing approval of
revisions to the SJVUAPCD and
SCAQMD portion of the California State
Implementation Plan (SIP). This action
SUMMARY:
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EPA approval date
Explanation
*
*
11/29/12 and FR page
number where document begins].
*
*
Revisions to prohibit interference with measures
required to protect visibility in any other State.
Revisions to prohibit contribution to nonattainment in any other State approved 11/8/2010
(75 FR 68447).
11/29/12 and FR page
number where document begins].
was proposed in the Federal Register on
June 21, 2012 and concerns volatile
organic compound (VOC) emissions
from chipping and grinding activities,
and composting operations. We are
approving local rules that regulate these
emission sources under the Clean Air
Act (CAA or the Act).
DATES: These rules will be effective on
December 31, 2012.
ADDRESSES: EPA has established docket
number EPA–R09–OAR–2012–0252 for
this action. Generally, documents in the
docket for this action are available
electronically at https://
www.regulations.gov or in hard copy at
EPA Region IX, 75 Hawthorne Street,
San Francisco, California. While all
documents in the docket are listed at
https://www.regulations.gov, some
information may be publicly available
only at the hard copy location (e.g.,
copyrighted material, large maps, multivolume reports), and some may not be
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available in either location (e.g.,
confidential business information
(CBI)). To inspect the hard copy
materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Robert Marinaro, EPA Region IX, (415)
972–3019, marinaro.robert@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Statutory and Executive Order Reviews
I. Proposed Action
On June 21, 2012 (77 FR 37359), EPA
proposed to approve the following rules
into the California SIP.
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]]>Agencies
[Federal Register Volume 77, Number 230 (Thursday, November 29, 2012)]
[Rules and Regulations]
[Pages 71119-71129]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28822]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2008-0702; FRL-9755-5]
Approval and Promulgation of State Implementation Plans; City of
Albuquerque-Bernalillo County, New Mexico; Interstate Transport
Affecting Visibility and Regional Haze Rule Requirements for Mandatory
Class I Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving the City of Albuquerque--Bernalillo County,
New Mexico State Implementation Plan (SIP) revisions submitted by the
Governor of New Mexico on July 28, 2011 addressing the regional haze
requirements for the mandatory Class I areas under 40 CFR 51.309. The
EPA finds that these revisions to the State Implementation Plan (SIP)
and associated rules meet the requirements of the Clean Air Act (CAA)
and comply with the provisions of 40 CFR 51.309, thereby meeting
requirements for reasonable progress for the 16 Class I areas covered
by the Grand Canyon Visibility Transport Commission Report for approval
of the plan through 2018. We are also approving SIP submissions offered
as companion rules to the Section 309 regional haze plan, specifically,
rules for the Sulfur Dioxide Emissions Inventory Requirements and the
Western Backstop Trading Program, submitted on December 26, 2003,
September 10, 2008, and May 24, 2011, and rules for Open Burning,
submitted on December 26, 2003 and July 28, 2011. These SIP revisions
were submitted to address the requirements of the Act and our rules
that require states to prevent any future and remedy any existing man-
made impairment of visibility in mandatory Class I areas caused by
emissions of air pollutants from numerous sources located over a wide
geographic area (also referred to as the ``regional haze program'').
States are required to assure reasonable progress toward the national
goal of achieving natural visibility conditions in Class I areas.
We are also approving a portion of the SIP revision submitted by
the City of Albuquerque--Bernalillo County, New Mexico on July 30,
2007, for the purpose of addressing the ``good neighbor'' provisions of
the CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the
PM2.5 NAAQS. We are approving the portion of the SIP
submittal that addresses the CAA requirement concerning non-
interference with programs to protect visibility in other states. EPA
is taking this action pursuant to section 110 of the CAA.
DATES: This final rule is effective December 31, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2008-0702. All documents in the docket are listed on
the www.regulations.gov Web site.
Publicly available docket materials are available either
electronically through www.regulations.gov, or in hard copy at the Air
Planning Section (6PD-
[[Page 71120]]
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733 The file will be made available by appointment
for public inspection in the Region 6 FOIA Review Room between the
hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays.
Contact the person listed in the FOR FURTHER INFORMATION CONTACT
paragraph below or Mr. Bill Deese at 214-665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a 15 cent per page
fee for making photocopies of documents. On the day of the visit,
please check in at our Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
FOR FURTHER INFORMATION CONTACT: Michael Feldman, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-9793; fax number
214-665-7263; email address feldman.michael@epa.gov.
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to
certain words or initials as follows:
i. The words or initials Act or CAA mean or refer to the Clean
Air Act, unless the context indicates otherwise.
ii. The 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 initials RH and RHR mean or refer to Regional Haze and
Regional Haze Rule.
v. The initials BC and the words Albuquerque and Bernalillo
County mean the City of Albuquerque-Bernalillo County, New Mexico
vi. The initials AQCB mean or refer to the Albuquerque/
Bernalillo County Air Quality Control Board.
vii. The initials BART mean or refer to Best Available Retrofit
Technology.
viii. The initials OC mean or refer to organic carbon.
ix. The initials EC mean or refer to elemental carbon.
x. The initials VOC mean or refer to volatile organic compounds.
xi. The initials EGUs mean or refer to Electric Generating
Units.
xii. The initials NOX mean or refer to nitrogen oxides.
xiii. The initials SO2 mean or refer to sulfur dioxide.
xiv. The initials PM10 mean or refer to particulate matter with
an aerodynamic diameter of less than 10 micrometers.
xv. The initials PM2.5 mean or refer to particulate matter with
an aerodynamic of less than 2.5 micrometers.
xvi. The initial RPGs mean or refer to reasonable progress
goals.
xvii. The initials RPOs mean or refer to regional planning
organizations.
xviii. The initials WRAP mean or refer to the Western Regional
Air Partnership.
xix. The initials GCVTC mean or refer to the Grand Canyon
Visibility Transport Commission.
Table of Contents
I. Background
II. Final Action
III. Basis for Final Action
IV. Issues Raised by Commenters and EPA's Responses
V. Statutory and Executive Orders
I. Background
The CAA requires each state to develop plans, referred to as SIPs,
to meet various air quality requirements. A state must submit its SIPs
and SIP revisions to us for approval. The Albuquerque/Bernalillo County
Air Quality Control Board (AQCB) is the federally delegated air quality
authority for the City of Albuquerque and Bernalillo County, New Mexico
(BC). The AQCB is authorized to administer and enforce the CAA and the
New Mexico Air Quality Control Act, and to require local air pollution
sources to comply with air quality standards. The AQCB has submitted a
Section 309 regional haze SIP for its geographic area of New Mexico
under the New Mexico Air Quality Control Act (section 74-2-4). The BC
RH SIP is a necessary component of the regional haze plan for the
entire State of New Mexico and is also necessary to ensure the
requirements of Section 110(a)(2)(D)(i) of the CAA are satisfied for
the entire State of New Mexico. Once approved, a SIP is enforceable by
EPA and citizens under the CAA, also known as being federally
enforceable. This action involves the requirement that states have SIPs
that address regional haze and address the requirement that emissions
from a state do not interfere with measures of other states to protect
visibility.
A. Regional Haze
In 1990, Congress added section 169B to the CAA to address regional
haze issues, and we promulgated regulations addressing regional haze in
1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart
P. The requirements for regional haze, found at 40 CFR 51.308 and
51.309, are included in our visibility protection regulations at 40 CFR
51.300-309. The requirement to submit a regional haze SIP applies to
all 50 states, the District of Columbia and the Virgin Islands. States
were required to submit a SIP addressing regional haze visibility
impairment no later than December 17, 2007. 40 CFR 51.308(b).
The AQCB submitted the BC RH SIP to EPA on July 28, 2011, and it
adds to earlier RH SIP planning components that were submitted on
December 26, 2003.
B. Interstate Transport and Visibility
On July 18, 1997, we promulgated new NAAQS for 8-hour ozone and for
PM2.5. 62 FR 38652. Section 110(a)(1) of the CAA requires
states to submit SIPs to address a new or revised NAAQS within 3 years
after promulgation of such standards, or within such shorter period as
we may prescribe. Section 110(a)(2)(D)(i)(II) of the Act requires that
states have a SIP, or submit a SIP revision, containing provisions
``prohibiting any source or other type of emission activity within the
state from emitting any air pollutant in amounts which will * * *
interfere with measures required to be included in the applicable
implementation plan for any other State under part C [of the CAA] * * *
to protect visibility.'' Because of the impacts on visibility from the
interstate transport of pollutants, we interpret the ``good neighbor''
provisions of section 110 of the Act described above as requiring
states to include in their SIPs either measures to prohibit emissions
that would interfere with the reasonable progress goals set to protect
Class I areas in other states, or a demonstration that emissions from
BC sources and activities will not have the prohibited impacts on other
states' existing SIPs.
The EPA received a SIP revision adopted by AQCB on September 12,
2007 to address the interstate transport provisions of CAA
110(a)(2)(D)(i) for the 1997 ozone and PM2.5 NAAQS.
C. Lawsuits
In a lawsuit in the U.S. District Court for the District of
Columbia, environmental groups sued us for our failure to timely take
action with respect to the regional haze requirements of the CAA and
our regulations. In particular, the lawsuit alleged that we had failed
to promulgate federal implementation plans (FIPs) for these
requirements within the two-year period allowed by CAA section 110(c)
or, in the alternative, fully approve SIPs addressing these
requirements.
As a result of this lawsuit, we entered into a consent decree. The
consent decree requires that we sign a notice of final rulemaking
addressing the regional haze requirements for Bernalillo County by
November 15, 2012. We are meeting that requirement with the signing of
this notice of final rulemaking.
[[Page 71121]]
D. Our Proposal
We signed our notice of proposed rulemaking on April 12, 2012, and
it was published in the Federal Register on April 25, 2012 (77 FR
24768). In that notice, we provided a detailed description of the
various regional haze requirements and interstate transport and
visibility requirements. We are not repeating that description here;
instead, the reader should refer to our notice of proposed rulemaking
for further detail. In our proposal, we proposed to approve BC SIP
revisions submitted on July 28, 2011 addressing the regional haze
requirements for the mandatory Class I areas under 40 CFR 51.309. We
proposed to find that all reviewed components of the SIP meet the
requirements of 40 CFR 51.309. We also proposed to approve a portion of
the BC SIP revision submitted on July 30, 2007, for the purpose of
addressing the ``good neighbor'' provisions of the CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the
PM2.5 NAAQS. This proposal proposed to approve the portion
of the SIP submittal that addresses the CAA requirement concerning non-
interference with programs to protect visibility in other states.
E. Public Participation
We requested comments on all aspects of our proposed action and
provided a thirty-day comment period, with the comment period closing
on May 25, 2012. We received comments on our proposed rule that
supported our proposed action and that were critical of our proposed
action. In this action, we are responding to the comments we have
received, taking final rulemaking action, and explaining the bases for
our action.
II. Final Action
In this action, EPA is approving City of Albuquerque--Bernalillo
County, New Mexico SIP revisions submitted on July 28, 2011 addressing
the regional haze requirements for the mandatory Class I areas under 40
CFR 51.309. We find that all reviewed components of the SIP meet the
requirements of 40 CFR 51.309. In conjunction with this approval, we
are also approving the following related rules: 20.11.46 NMAC, Sulfur
Dioxide Emission Inventory Requirements; Western Backstop Sulfur
Dioxide Trading Program (submitted after initial adoption on December
26, 2003, with revisions submitted on September 10, 2008, and May 24,
2011) and 20.11.21 NMAC, Open Burning (submitted after initial adoption
on December 26, 2003, with revisions submitted on July 28, 2011).
We are approving a portion of the SIP revision submitted by the
City of Albuquerque--Bernalillo County, New Mexico on July 30, 2007,
for the purpose of addressing the ``good neighbor'' provisions of the
CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the
PM2.5 NAAQS.\1\ We are approving the portion of the SIP
submittal that addresses the CAA requirement concerning non-
interference with programs to protect visibility in other states.
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\1\ There are four ``prongs'' under the ``good neighbor''
provisions of the CAA section 110(a)(2)(D)(i). On November 8, 2012
(75 FR 68447), we approved a SIP revision that air pollutant
emissions from sources within BC do not significantly contribute to
nonattainment of the 1997 ozone NAAQS and the PM2.5 NAAQS
in any other state. On September 19, 2012, we approved a SIP
revision that air pollutant emissions from sources within BC do not
interfere with prevention of significant deterioration (PSD)
measures required in the SIP of any other state for the 1997 ozone
and PM2.5 NAAQS.
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III. Basis for Our Final Action
We have fully considered all significant comments on our proposal
and have concluded that no changes from our proposal are warranted. Our
action is based on an evaluation of BC's regional haze SIP submittal
against the regional haze requirements at 40 CFR 51.300-51.309 and CAA
sections 169A and 169B. A detailed explanation of how the Albuquerque
SIP submittal meets these requirements is contained in the proposal.
All general SIP requirements contained in CAA section 110, other
provisions of the CAA, and our regulations applicable to this action
were also evaluated. The purpose of this action is to ensure compliance
with these requirements. Our authority for action on BC's SIP submittal
is based on CAA section 110(k).
We are approving BC's regional haze SIP provisions because they
meet the relevant regional haze requirements. Most of the adverse
comments we received concerning our proposed approval of the regional
haze SIP pertained to our proposed approval of the SO2
backstop trading program.
IV. Issues Raised by Commenters and EPA's Responses
A. Comments and Responses Common to Participating States Regarding
Proposed Approval of the SO2 Backstop Trading Program
Components of the RH SIPS
EPA has proposed to approve the SO2 backstop trading
program components of the RH SIPs for all participating States and has
done so through four separate proposals: For the Bernalillo County
proposal see 77 FR 24768 (April 25, 2012); For the Utah proposal see 77
FR 28825 (May 15, 2012); for the Wyoming proposal see 77 FR 30953 (May
24, 2012); finally, for the New Mexico proposal see 77 FR 36043 (June
15, 2012). National conservation organizations paired with
organizations local to each state have together submitted very similar,
if not identical, comments on various aspects of EPA's proposed
approval of these common program components. These comment letters may
be found in the docket for each proposal and are dated as follows: May
25, 2012 for Bernalillo County; July 16, 2012 for Utah; July 23, 2012
for Wyoming; and July 16, 2012 for New Mexico. Each of the comment
letters has attached a consultant's report dated May 25, 2012, and
titled: ``Evaluation of Whether the SO2 Backstop Trading
Program Proposed by the States of New Mexico, Utah and Wyoming and
Albuquerque-Bernalillo County Will Result in Lower SO2
Emissions than Source-Specific BART.'' In this section, we address and
respond to those comments we identified as being consistently submitted
and specifically directed to the component of the published proposals
dealing with the submitted SO2 backstop trading program. For
our organizational purposes, any additional or unique comments found in
the conservation organization letter that is applicable to this
proposal (i.e., for the City of Albuquerque -Bernalillo County) will be
addressed in the next section where we also address all other comments
received.
Comment: The language of the Clean Air Act appears to require BART.
The commenter acknowledges that prior case law affirms EPA's regulatory
basis for having ``better than BART'' alternative measures, but
nevertheless asserts that it violates Congress' mandate for an
alternative trading program to rely on emissions reductions from non-
BART sources and excuse EGUs from compliance with BART.
Response: The Clean Air Act requires BART ``as may be necessary to
make reasonable progress toward meeting the national goal'' of
remedying existing impairment and preventing future impairment at
mandatory Class I areas. See CAA Section 169A(b)(2). In 1999, EPA
issued regulations allowing for alternatives to BART based on a reading
of the CAA that focused on the overarching goal of the statute of
achieving progress. EPA's regulations provided states with the option
of implementing an emissions trading program or other alternative
measure in
[[Page 71122]]
lieu of BART so long as the alternative would result in greater
reasonable progress than BART. We note that this interpretation of CAA
Section 169A(B)(2) was determined to be reasonable by the D.C. Circuit
in Center for Energy and Economic Development v. EPA, 398 F.3d 653,
659-660 (D.C. Cir. 2005) in a challenge to the backstop market trading
program under Section 309, and again found to reasonable by the D.C.
Circuit in Utility Air Regulatory Group v. EPA, 471 F.3d 1333, 1340
(D.C. Cir. 2006) (``* * * [W]e have already held in CEED that EPA may
leave states free to implement BART-alternatives so long as those
alternatives also ensure reasonable progress.''). Our regulations for
alternatives to BART, including the provisions for a backstop trading
program under Section 309, are therefore consistent with the Clean Air
Act and not in issue in this action approving a SIP submitted under
those regulations. We have reviewed the submitted 309 trading program
SIPs to determine whether each has the required backstop trading
program (see 40 CFR 51.309(d)(4)(v)), and whether the features of the
program satisfy the requirements for trading programs as alternatives
to BART (see 40 CFR 51.308(e)(2)). Our regulations make clear that any
market trading program as an alternative to BART contemplates market
participation from a broader list of sources than merely those sources
that are subject to BART. See 40 CFR 51.308(e)(2)(i)(B).
Comment: The submitted 309 Trading Program is defective because
only 3 of 9 Transport States remain in the program. The Grand Canyon
Visibility Transport Commission Report clearly stated that the program
must be ``comprehensive.'' The program fails to include the other
Western States that account for the majority of sulfate contribution in
the Class I areas of participating States, and therefore Class I areas
on the Colorado Plateau will see little or no visibility benefit. Non-
participation by other Transport Region States compounds the program's
deficiencies.
Response: We disagree that the 309 trading program is defective
because only 3 States remain in the program. EPA's regulations do not
require a minimum number of Transport Region States to participate in
the 309 trading program, and there is no reason to believe that the
limited participation by the 9 Transport States will limit the
effectiveness of the program in the 3 States that have submitted 309
SIPs. The commenter's argument is not supported by the regional haze
regulations and is demonstrably inconsistent with the resource
commitments of the Transport Region States that have worked for many
years in the WRAP to develop and submit SIPs to satisfy 40 CFR 51.309.
At the outset, our regulations affirm that ``certain States * * * may
choose'' to comply with the 40 CFR 51.309 requirements and conversely
that ``[a]ny Transport Region State [may] elect not to submit an
implementation plan'' to meet the optional requirements. 40 CFR
51.309(a); see also 40 CFR 51.309(f). We have also previously observed
how the WRAP, in the course of developing its technical analyses as the
framework for a trading program, ``understood that some States and
Tribes may choose not to participate in the optional program provided
by 40 CFR 51.309.'' 68 FR 33769 (June 5, 2003). Only five of nine
Transport Region States initially opted to participate in the backstop
trading program in 2003, and of those initial participants only Oregon
and Arizona later elected not to submit 309 SIPs.
We disagree with the commenter's assertion that Class I areas on
the Colorado Plateau will see little or no visibility benefit. Non-
participating States must account for sulfate contributions to
visibility impairment at Class I areas by addressing all requirements
that apply under 40 CFR 51.308. To the extent Wyoming, New Mexico and
Utah sources ``do not account for the majority of sulfate
contribution'' at the 16 class I areas on Colorado Plateau, there is no
legal requirement that they account for SO2 emissions
originating from sources outside these participating States. Aside from
this, the modeling results detailed in the proposed rulemaking show
projected visibility improvement for the 20 percent worst days in 2018
and no degradation in visibility conditions on the 20 percent best days
at all 16 of the mandatory Class I areas under the submitted 309 plan.
Finally, we do not agree with the commenter's characterization of
the Grand Canyon Visibility Transport Commission Report, which used the
term ``comprehensive'' only in stating the following:
``It is the intent of [the recommendation for an incentive-based
trading program] that [it] include as many source categories and
species of pollutants as is feasible and technically defensible.
This preference for a `comprehensive' market is based upon the
expectation that a comprehensive program would be more effective at
improving visibility and would yield more cost-effective emission
reduction strategies for the region as a whole.'' \2\
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\2\ The Grand Canyon Visibility Transport Commission,
Recommendations for Improving Western Vistas at 32 (June 10, 1996).
It is apparent that the Grand Canyon Visibility Transport
Commission recommended comprehensive source coverage to optimize the
market trading program. This does not necessitate or even necessarily
correlate with geographic comprehensiveness as contemplated by the
comment. We note that the submitted backstop trading program does in
fact comprehensively include ``many source categories,'' as may also be
expected for any intrastate trading program that any state could choose
to develop and submit under 40 CFR 51.308(e)(2). As was stated in our
proposal, section 51.309 does not require the participation of a
certain number of States to validate its effectiveness.
Comment: The submitted 309 trading program is defective because the
pollutant reductions from participating States have little visibility
benefit in each other's Class I areas. The States that have submitted
309 SIPs are ``largely non-contiguous'' in terms of their physical
borders and their air shed impacts. Sulfate emissions from each of the
participating States have little effect on Class I areas in other
participating States.
Response: We disagree. The 309 program was designed to address
visibility impairment for the sixteen Class I areas on the Colorado
Plateau. New Mexico, Wyoming and Utah are identified as Transport
Region States because the Grand Canyon Visibility Transport Commission
had determined they could impact the Colorado Plateau class I areas.
The submitted trading program has been designed by these Transport
Region States to satisfy their requirements under 40 CFR 51.309 to
address visibility impairment at the sixteen Class I areas. The
strategies in these plans are directed toward a designated clean-air
corridor that is defined by the placement of the 16 Class I areas, not
the placement of state borders. ``Air sheds'' that do not relate to
haze at these Class I areas or that relate to other Class I areas are
similarly not relevant to whether the requirements for an approvable
309 trading program are met. As applicable, any Transport Region State
implementing the provisions of Section 309 must also separately
demonstrate reasonable progress for any additional mandatory Class I
Federal areas other than the 16 Class I areas located within the state.
See 40 CFR 51.309(g). More broadly, the State must submit a long-term
strategy to address these additional Class I areas as well as those
Class I areas located outside the state which may be affected by
emissions from the State. 40 CFR 51.309(g) and
[[Page 71123]]
51.308(d)(2). In developing long-term strategies, the Transport Region
States may take full credit for visibility improvements that would be
achieved through implementation of the strategies required by
51.309(d). A state's satisfaction of the requirements of 51.309(d), and
specifically the requirement for a backstop trading program, is
evaluated independently from whether a state has satisfied the
requirements of 51.309(g). In neither case, however, does the
approvability inquiry center on the location or contiguousness of state
borders.
Comment: The emission benchmark used in the submitted 309 trading
program is inaccurate. The ``better-than-BART'' demonstration needs to
analyze BART for each source subject to BART in order to evaluate the
alternative program. The submitted 309 trading program has no BART
analysis. The ``better-than-BART'' demonstration does not comply with
the regional haze regulations when it relies on the presumptive
SO2 emission rate of 0.15 lb/MMBtu for most coal-fired EGUs.
The presumptive SO2 limits are inappropriate because EPA has
elsewhere asserted that ``presumptive limits represented control
capabilities at the time the BART Rule was promulgated, and that [EPA]
expected that scrubber technology would continue to improve and control
costs would continue to decline.'' 77 Fed. Reg. 14614 (March 12, 2012).
Response: We disagree that the submitted 309 trading program
requires an analysis that determines BART for each source subject to
BART. Source specific BART determinations are not required to support
the better-than-BART demonstration when the ``alternative measure has
been designed to meet a requirement other than BART.'' See 40 CFR
51.308(e)(2)(i)(C). The requirements of Section 309 are meant to
implement the recommendations of the Grand Canyon Visibility Transport
Commission and are regulatory requirements ``other than BART'' that are
part of a long-term strategy to achieve reasonable progress. As such,
in its analysis, the State may assume emission reductions ``for similar
types of sources within a source category based on both source-specific
and category-wide information, as appropriate.'' See id. The 309 States
used this approach in developing their emission benchmark, and we view
it to be consistent with what we have previously stated regarding the
establishment of a BART benchmark. Specifically, we have explained that
States designing alternative programs to meet requirements other than
BART ``may use simplifying assumptions in establishing a BART benchmark
based on an analysis of what BART is likely to be for similar types of
sources within a source category.'' 71 FR 60619 (Oct. 13, 2006).
We also previously stated that ``we believe that the presumptions
for EGUs in the BART guidelines should be used for comparisons to a
trading program or other alternative measure, unless the State
determines that such presumptions are not appropriate.'' Id. Our
reasoning for this has also long been clear. While EPA recognizes that
a case-by-case BART analysis may result in emission limits more
stringent than the presumptive limits, the presumptive limits are
reasonable and appropriate for use in assessing regional emissions
reductions for the better than BART demonstration. See 71 FR 60619
(``the presumptions represent a reasonable estimate of a stringent case
BART because they would be applied across the board to a wide variety
of units with varying impacts on visibility, at power plants of varying
size and distance from Class I areas''). EPA's expectation that
scrubber technology would continue to improve and that control costs
would continue to decline is a basis for not regarding presumptive
limits as a default or safe harbor BART determination when the BART
Guidelines otherwise call for a complete, case-by-case analysis. We
believe it was reasonable for the developers of the submitted trading
program to use the presumptive limits for EGUs in establishing the
emission benchmark, particularly since the methodology used to
establish the emission benchmark was established near in time to our
promulgation of the presumptive limits as well as our guidance that
they should be used. We do not think the assumptions used at the time
the trading program was developed, including the use of presumptive
limits, were unreasonable. Moreover, the commenter has not demonstrated
how the use of presumptive limits as a simplifying assumption at that
time, or even now, would be flawed merely because EPA expects that
scrubber technology and costs will continue to improve.
Comment: The presumptive SO2 emission rate overstates
actual emissions from sources that were included in the BART benchmark
calculation. In addition, States in the Grand Canyon Visibility
Transport Region have established or proposed significantly more
stringent BART limits for SO2. Using actual SO2
emission data for EGUs, SO2 emissions would be 130,601 tpy,
not the benchmark of 141,859 tpy submitted in the 309 trading program.
Using a combination of actual emissions and unit-specific BART
determinations, the SO2 emissions would be lower still at
123,529 tpy. Finally, the same data EPA relied on to support its
determination that reductions under the Cross State Air Pollution Rule
are ``better-than-BART'' would translate to SO2 emissions of
124,740 tpy. These analyses show the BART benchmark is higher than
actual SO2 emissions reductions achievable through BART. It
follows that the submitted 309 trading program is flawed because it
cannot be deemed to achieve ``greater reasonable progress'' than BART.
Response: The BART benchmark calculation does not overstate
emissions because it was not intended to assess actual emissions at
BART subject sources nor was it intended to assess the control
capabilities of later installed controls. Instead, the presumptive
SO2 emission rate served as a necessary simplifying
assumption. When the States worked to develop the 309 trading program,
they could not be expected to anticipate the future elements of case-
by-case BART determinations made by other States (or EPA, in the case
of a BART determination through any federal implementation plan), nor
could they be expected to anticipate the details of later-installed
SO2 controls or the future application of enforceable
emission limits to those controls. The emissions projections by the
WRAP incorporated the best available information at the time from the
states, and utilized the appropriate methods and models to provide a
prediction of emissions from all source categories in this planning
period. In developing a profile of planning period emissions to support
each state's reasonable progress goals, as well as the submitted
trading program, it was recognized that the final control decisions by
all of the states were not yet complete, including decisions as they
may pertain to emissions from BART eligible sources. Therefore, we
believe it is appropriate that the analysis and demonstration is based
on data that was available to the States at the time they worked to
construct the SO2 trading program. The States did make
appropriate adjustments based on information that was available to them
at the time. Notably, the WRAP appropriately adjusted its use of the
presumptive limits in the case of Huntington Units 1 and 2 in Utah,
because those units were already subject to federally enforceable
SO2 emission rates that were lower than the
[[Page 71124]]
presumptive rate. The use of actual emissions data after the 2006
baseline is not relevant to the demonstration that has been submitted.
Comment: SO2 emissions under the 309 trading program
would be equivalent to the SO2 emissions if presumptive BART
were applied to each BART-subject source. Because the reductions are
equivalent, the submitted 309 trading program does not show, by ``the
clear weight of the evidence,'' that the alternative measure will
result in greater reasonable progress than would be achieved by
requiring BART. In view of the reductions being equivalent, it is not
proper for EPA to rely on ``non-quantitative factors'' in finding that
the SO2 emissions trading program achieves greater
reasonable progress.
Response: We recognize that the 2018 SO2 milestone
equals the BART benchmark and that the benchmark generally utilized the
presumptive limits for EGUs, as was deemed appropriate by the States
who worked together to develop the trading program. If the
SO2 milestone is exceeded, the trading program will be
activated. We note, moreover, that the 2018 milestone constitutes an
emissions cap on sulfur dioxide emissions that will persist after
2018.\3\ Under this framework, sources that would otherwise be subject
to the trading program have incentives to make independent reductions
to avoid activation of the trading program. We cannot discount that the
2003 309 SIP submittal may have already influenced sources to upgrade
their plants before any case-by-case BART determination under Section
308 may have required it. In addition, the trading program was designed
to encourage early reductions by providing extra allocations for
sources that made reductions prior to the program trigger year.
Permitting authorities that would otherwise permit increases in
SO2 emissions for new sources would be equally conscious of
the potential impacts on the achievement of the milestone. We note that
the most recent emission report for the year 2010 shows a 35% reduction
in emissions from 2003. The 309 trading program is designed as a
backstop such that sources would work to accomplish emission reductions
through 2018 that would be superior to the milestone and the BART
benchmark. If instead the backstop trading program is triggered, the
sources subject to the program would be expected to make any reductions
necessary to achieve the emission levels consistent with each source's
allocation. We do not believe that the ``clear weight of the evidence''
determination referenced in 40 CFR 51.308(e)(2)(E)--in short, a
determination that the alternative measure of the 309 trading program
achieves greater reasonable progress than BART--should be understood to
prohibit setting the SO2 milestone to equal the BART
benchmark. Our determination that the 2018 SO2 milestone and
other design features of the 309 SIP will achieve greater reasonable
progress than would be achieved through BART is based on our
understanding of how the SIP will promote and sustain emission
reductions of SO2 as measured against a milestone. Sources
will be actively mindful of the participating states' emissions
inventory and operating to avoid exceeding the milestone, not trying to
maximize their emissions to be equivalent to the milestone, as this
comment suggests.
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\3\ The trading program can only be replaced via future SIP
revisions submitted for EPA approval that will meet the BART and
reasonable progress requirements of 51.308. See 40 CFR
51.309(d)(4)(vi)(A).
---------------------------------------------------------------------------
Comment: In proposing to find that the SO2 trading
program achieves greater reasonable progress than BART, EPA's reliance
on the following features of the 309 trading program is flawed: Non-
BART emission reductions, a cap on new growth, and a mass-based cap on
emissions. The reliance on non-BART emission reductions is ``a hollow
promise'' because there is no evidence that the trading program will be
triggered for other particular emission sources, and if the program is
never triggered there will be no emission reductions from smaller non-
BART sources. The reliance on a cap on future source emissions is also
faulty because there is no evidence the trading program will be
triggered, and thus the cap may never be implemented. Existing programs
that apply to new sources will already ensure that SO2
emissions from new sources are reduced to the maximum extent. EPA's
discussion of the advantages of a mass-based cap is unsupported and
cannot be justified. EPA wrongly states that a mass-based cap based on
actual emissions is more stringent than BART. There should not be a
meaningful gap between actual and allowable emissions under a proper
BART determination. A mass-based cap does not effectively limit
emissions when operating at lower loads and, as an annual cap, does not
have restrictive compliance averaging. EPA's argument implies that BART
limits do not apply during startup, shutdown or malfunction events,
which is not correct. The established mass-based cap would allow
sources to operate their SO2 controls less efficiently,
because some BART-subject EGUs already operate with lower emissions
than the presumptive SO2 emission rate of 0.15 lb/MMBtu and
because some EGUs were assumed to be operating at 85% capacity when
their capacity factor (and consequently their S02 emissions
in tpy) was lower.
Response: We disagree that it is flawed to assess the benefits
found in the distinguishing features of the trading program. The
backstop trading program is not specifically designed so that it will
be activated. Instead sources that are covered by the program are on
notice that it will be triggered if the regulatory milestones are not
achieved. Therefore, the backstop trading program would be expected to
garner reductions to avoid its activation. It also remains true that if
the trading program is activated, all sources subject to the program,
including smaller non-BART sources would be expected to secure emission
reductions as may be necessary to meet their emission allocation under
the program
We also disagree that the features of the 2018 milestone as a cap
on future source emissions and as a mass-based cap has no significance.
As detailed in our proposal, the submitted SIP is consistent with the
requirement that the 2018 milestone does indeed continue as an emission
cap for SO2 unless the milestones are replaced by a
different program approved by EPA as meeting the BART and reasonable
progress requirements under 51.308. Future visibility impairment is
prevented by capping emissions growth from those sources not eligible
under the BART requirements, BART sources, and from entirely new
sources in the region. The benefits of a milestone are therefore
functionally distinct from the control efficiency improvements that
could be gained at a limited number of BART subject sources. While
BART-subject sources may not be operating at 85% capacity today, we
believe the WRAP's use of the capacity assumption in consideration of
projected future energy demands in 2018 was reasonable for purposes of
the submitted demonstration. While BART requires BART subject sources
to operate SO2 controls efficiently, this does not mean that
an alternative to BART thereby allows, encourage, or causes sources to
operate their controls less efficiently. On the contrary, we find that
the SIP, consistent with the well-considered 309 program requirements,
functions to the contrary. Sources will be operating their controls in
consideration of the milestone and they also remain subject to any
other existing or future
[[Page 71125]]
requirements for operation of SO2 controls.
We also disagree with the commenter's contention that existing
programs are equivalent in effect to the emissions cap. EPA's new
source review programs are designed to permit, not cap, source growth,
so long as the national ambient air quality standards and other
applicable requirements can be achieved. Moreover, we have not argued
that BART does not apply at all times or that emission reductions under
the cap are meant to function as emission limitations are made to meet
the definition of BART (40 CFR 51.301). The better-than-BART
demonstration is not, as the comment would have it, based on issues of
compliance averaging or how a BART limit operates in practice at an
individual facility. Instead, it is based on whether the submitted SIP
follows the regulatory requirements for the demonstration and evidences
comparatively superior visibility improvements for the Class I areas it
is designed to address.
Comment: The submitted 309 SIP will not achieve greater reasonable
progress than would the requirement for BART on individual sources. The
BART program ``if adequately implemented'' will promote greater
reasonable progress, and EPA should require BART on all eligible air
pollution sources in the state. EPA's proposed approval of the 309
trading program is ``particularly problematic'' where the BART sources
cause or contribute to impairment at Class I areas which are not on the
Uniform Rate of Progress glide-path towards achieving natural
conditions. EPA should require revisions to provide for greater
SO2 reductions in the 309 program, or it should require BART
reductions on all sources subject to BART for SO2.
Response: We disagree with the issues discussed in this comment. As
discussed in other comments, we have found that the state's SIP
submitted under the 309 program will achieve greater reasonable
progress than source-by-source BART. As the regulations housed within
section 51.309 make clear, States have an opportunity to submit
regional haze SIPs that provide an alternative to source-by-source BART
requirements. Therefore, the commenter's assertion that we should
require BART on all eligible air pollution sources in the state is
fundamentally misplaced. The commenter's use of the Uniform Rate of
Progress (URP) as a test that should apparently be applied to the
adequacy of the 309 trading program as a BART alternative is also
misplaced, as there is no requirement in the regional haze rule to do
so.
Comment: The 309 trading program must be disapproved because it
does not provide for ``steady and continuing emissions reductions
through 2018'' as required by 40 CFR 51.309(d)(4)(ii). The program
establishes its reductions through milestones that are set at three
year intervals. It would be arbitrary and capricious to conclude these
reductions are ``steady'' or ``continuous.''
Response: We disagree and find that the reductions required at each
milestone demonstrate steady and continuing emissions reductions. The
milestones do this by requiring regular decreases. These decreases
occur in intervals ranging from one to three years and include
administrative evaluation periods with the possibility of downward
adjustments of the milestone, if warranted. The interval under which
``steady and continuing emissions reductions through 2018'' must occur
is not defined in the regional haze rule. We find the milestone
schedule and the remainder of the trading program submitted by City of
Albuquerque-Bernalillo County does in fact reasonably provide for
``steady and continuing emissions reductions through 2018.''
Comment: The WRAP attempts to justify the SO2 trading
program because SO2 emissions have decreased in the three
Transport Region states relying on the alternative program by 33%
between 1990-2000. The justification fails because the reductions were
made prior to the regional haze rule. The reliance on reductions that
predate the regional haze rule violates the requirement of 40 CFR
51.308(e)(2)(iv) that BART alternatives provide emission reductions
that are ``surplus'' to those resulting from programs implemented to
meet other Clean Air Act Requirements.
Response: We did not focus on the WRAP's discussion of early
emission reductions in our proposal. However, we do not agree with this
comment. The WRAP's statements regarding past air quality improvements
are not contrary to the requirement that reductions under a trading
program be surplus. Instead, the WRAP was noting that forward-planning
sources had already pursued emission reductions that could be partially
credited to the design of the 309 SIP. We note that the most recent
emission report for the year 2010 shows a 35% reduction in emissions
from 2003. Sources that make early reductions prior to the program
trigger year may acquire extra allocations should the program be
triggered. This is an additional characteristic feature of the backstop
trading program that suggests benefits that would be realized even
without triggering of the program itself. The surplus emission
reduction requirement for the trading program is not in issue, because
the existence of surplus reductions is studied against other reductions
that are realized ``as of baseline date of the SIP.'' The 1990-2000
period plainly falls earlier than the baseline date of the SIP, so we
disagree that the WRAP's discussion of that period was problematic or
violative of 40 CFR 51.308(e)(2)(iv), regarding surplus reductions.
Comment: EPA must correct discrepancies between the data presented
in the 309 SIP submittals.\4\ There are discrepancies in what has been
presented as the results of WRAP photochemical modeling. The New Mexico
RH SIP proposal by EPA shows, for example, that the 20% worst days at
Grand Canyon National Park have visibility impairment of 11.1
deciviews, while the other EPA proposals show 11.3 deciviews. The
discrepancy appears to be due to the submittals being based on
different modeling scenarios developed by the WRAP. EPA must explain
and correct the discrepancies and ``re-notice'' a new proposed rule
containing the correct information.
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\4\ This particular comment was not submitted in response to the
proposal to approve Albuquerque's 309 trading program, the earliest
published proposal. It was consistently submitted in the comment
periods for the proposals to approve the 309 trading programs for
NM, WY and UT, which were later in time.
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Response: We agree that there are discrepancies in the numbers in
Table 1 of the proposal notices. The third column of the table below
shows the modeling results presented in Table 1 of the Albuquerque,
Wyoming and Utah proposals. The modeling results in the New Mexico
proposal Table 1 are shown in the fourth column. The discrepancies come
from the State's using different preliminary reasonable progress cases
developed by the WRAP. The Wyoming, Utah and Albuquerque proposed
notices incorrectly identify the Preliminary Reasonable Progress case
as the PRP18b emission inventory instead of correctly identifying the
presented data as modeled visibility based on the ``prp18a'' emission
inventory. The PRP18a emission inventory is a predicted 2018 emission
inventory with all known and expected controls as of March 2007. The
preliminary reasonable progress case (``PRP18b'') used by New Mexico is
the more updated version produced by the WRAP with all known and
expected controls as of March 2009. Thus, we are correcting Table 1,
column 5 in the
[[Page 71126]]
Wyoming, Utah and Albuquerque of our proposed notices to include model
results from the PRP18b emission inventory, consistent with the New
Mexico proposed notice and the fourth column in the table below. We are
also correcting the description of the Preliminary Reasonable Progress
Case (referred to as the PRP18b emission inventory and modeled
projections) to reflect that this emission inventory includes all
controls ``on the books'' as of March 2009.
------------------------------------------------------------------------
2018 2018
Preliminary Preliminary
reasonable reasonable
Class I area State progress progress
PRP18a case PRP18b case
(deciview) (deciview)
------------------------------------------------------------------------
Grand Canyon National Park... AZ 11.3 11.1
Mount Baldy Wilderness....... AZ 11.4 11.5
Petrified Forest National AZ 12.9 12.8
Park.
Sycamore Canyon Wilderness... AZ 15.1 15.0
Black Canyon of the Gunnison CO 9.9 9.8
National Park Wilderness.
Flat Tops Wilderness......... CO 9.0 9.0
Maroon Bells Wilderness...... CO 9.0 9.0
Mesa Verde National Park..... CO 12.6 12.5
Weminuche Wilderness......... CO 9.9 9.8
West Elk Wilderness.......... CO 9.0 9.0
San Pedro Parks Wilderness... NM 9.8 9.8
Arches National Park......... UT 10.9 10.7
Bryce Canyon National Park... UT 11.2 11.1
Canyonlands National Park.... UT 10.9 10.7
Capitol Reef National Park... UT 10.5 10.4
Zion National Park........... UT 13.0 12.8
------------------------------------------------------------------------
Section 309 requires Transport Region States to include a
projection of the improvement in visibility expected through the year
2018 for the most impaired and least impaired days for each of the 16
Class I areas on the Colorado Plateau. 40 CFR 51.309(d)(2). As
explained in the preamble to the 1999 regional haze regulations, EPA
included this requirement to ensure that the public would be informed
on the relationship between chosen emissions control measures and their
effect on visibility. 64 FR at 35751. Given the purpose of this
requirement, we do not consider the discrepancies noted above to be
significant and are not re-noticing our proposed rulemaking as the
discrepancies do not change our proposed conclusion that SIP submitted
by City of Albuquerque--Bernalillo County contains reasonable
projections of the visibility improvements expected at the 16 Class I
areas at issue. The PRP18a modeling results show projected visibility
improvement for the 20 percent worst days from the baseline period to
2018. The PRP18b modeling results show either the same or additional
visibility improvement on the 20 percent worst days beyond the PRP18a
modeling results. We also note there are two discrepancies in New
Mexico's Table 1, column four compared to the other participating
States' notices. The 2018 base case visibility projection in the New
Mexico proposed notice for Black Canyon of the Gunnison National Park
Wilderness and Weminuche Wilderness should be corrected to read 10.1
deciview rather than 10.0. Notwithstanding the discrepancies described
above, we believe that the BC SIP adequately projects the improvement
in visibility for purposes of Section 309.
B. Additional Comments
Comment: The regional haze regulations at 40 CFR 51.308(e)(2)(i)(B)
require that ``each BART-eligible source in the State must be subject
to the requirements of the alternative program, [and] have a federally
enforceable emission limitation determined by the State and approved by
EPA as meeting BART * * *'' The sole coal-fired electric generating
units (``EGUs'') that are subject to BART in New Mexico are the four
units at the San Juan Generating Station (``SJGS''). While the BC RH
SIP lists SJGS as a BART eligible source, it fails to identify a
federally enforceable emission limitation for SO2 that is
determined to be BART by the State and has been approved by EPA as
meeting BART. As such, the BC RH SIP fails to comply with 40 CFR
51.308(e)(2)(i)(B).
Response: This comment presents a flawed reading of our regulations
by inserting the word ``and'' where it does not, in fact, appear in the
language of 40 CFR 51.308(e)(2)(i)(B). 40 CFR 51.308(e)(2)(i)(B)
requires that ``each BART-eligible source in the State must be subject
to the requirements of the alternative program, have a federally
enforceable emission limitation determined by the State and approved by
EPA as meeting BART in accordance with section 302(c) or paragraph
(e)(1) of this section, or otherwise addressed under paragraphs (e)(1)
or (e)(4) of this section.'' This section of the rule requires that
each BART-eligible source be covered by the alternative program or
satisfy the BART requirements by either participation in a ``Transport
Rule Federal Implementation Plan'' under paragraph (e)(4) or by
determining BART for the source under paragraph (e)(1). Because there
are no BART-eligible sources in Bernalillo County, the requirement to
make BART determinations does not apply. As was detailed in the
proposal, the alternative program satisfies the requirements of 40 CFR
51.308(e)(2)(i)(B), because all BART-eligible sources are covered by
the alternative program. We also note the alternative program goes
further to additionally cover point sources that have actual emissions
of SO2 greater than 100 tons per year (sources meeting the
requirements of 20.2.81.101. NMAC).
Comment: The BC RH SIP also fails to comply with 40 CFR 51.309(g),
which requires that SIPs address impacts to Class I areas not located
on the Colorado plateau. 40 CFR 51.309(g). States are required to
submit air quality modeling or other reliable evidence revealing
visibility impacts and establishing that reasonable progress goals will
be met. In December 2010 and February 2011, EPA informed Bernalillo
County that its SIP failed to comply with 40 CFR 51.309(g)(1) and (2)
because it did not submit evidence showing Bernalillo
[[Page 71127]]
County's effects on visibility in Class I areas in New Mexico, such as
Gila Wilderness and Carlsbad Cavern. EPA Docket EPA-R06-OAR-2008-0702-
0011 at pages 110-111 and 126-127. EPA determined that SO2
emissions in New Mexico were projected to increase from 4,966 tpy in
2002 to 14,073 tpy by 2018 with nearly 30% of the 2018 emissions coming
from Bernalillo County. Id. EPA also determined that a significant
increase in NOX emissions from Bernalillo County was
projected to occur over this same time period. Id. EPA asked Bernalillo
County to conduct visibility modeling to determine its impacts to Class
I areas and to explain how reasonable progress goals would be met in
light of significant emissions increases. Id.
The commenters state that they were unable to identify any
visibility modeling or other analysis conducted by Bernalillo County to
address EPA's concerns. The commenters request an opportunity to review
any visibility modeling or related analysis and that EPA reject the BC
RH SIP until these issues are fully addressed.
Response: The letters referred to by the commenter state that the
analysis with regard to the requirements of 40 CFR 51.309(g)(1) and (2)
in BC's draft SIP revision shared with EPA in 2010 may be incomplete.
Specifically, the qualitative analysis provided in ``Appendix 2007-H''
and ``Addendum to Appendix 2007-H'' addressed the impact of BC's
emissions on nearby Class I areas, but did not include information on
the inaccuracy and over-prediction in the 2018 WRAP emission
projections for NOX and SO2 emissions in BC, or
the effect of an accurate emission inventory with respect to modeled
visibility degradation at Gila Wilderness and Carlsbad Caverns.
With respect to the above mentioned modeled degradation at Gila
Wilderness, an error in data retrieval affected initial results for
modeled visibility conditions at Gila Wilderness in 2002 and indicated
that visibility would degrade from 2002 to 2018. This error was
corrected and the updated submitted data indicates a predicted
improvement in visibility conditions on the 20% worst days and no
degradation of visibility on the 20% best days.\5\ For Carlsbad
Caverns, NMED provided modeling data that demonstrates that significant
projected growth in emissions by 2018 from Mexico are responsible for
the degradation in visibility conditions on the 20% best days at this
Class I area (Section 11.3.3 of the NM RH 309(g) SIP submittal). WRAP
visibility modeling results with Mexico emissions held constant from
2002 to 2018 show a slight improvement in visibility conditions at
Carlsbad Caverns on the 20% best days. Therefore, the initial modeled
visibility degradation at both Gila Wilderness and Carlsbad Caverns was
addressed without a need to further evaluate the impact of over-
estimated NOX and SO2 emissions in BC.
---------------------------------------------------------------------------
\5\ Correction of WRAP region Plan02d CMAQ visibility modeling
results on TSS for Regional Haze Planning--Final Memorandum, June
30, 2011, available at: https://vista.cira.colostate.edu/tss/help/plan02d_rev.pdf.
---------------------------------------------------------------------------
Furthermore, BC provided additional information in Appendix 2010-B
of the BC RH SIP \6\ that included an evaluation of emission inventory
trends for 2002, 2005, and 2008 for NOX and SO2
emissions for Bernalillo County. The analysis in the BC RH SIP
submittal identifies some inaccuracies in the emission inventories used
by the WRAP to model the 2002 baseline and the 2018 future case. The
2002 and 2018 emission projections are higher than expected when
compared to the reduction in SO2 emissions observed in the
actual emissions inventories for 2002, 2005 and 2008. Table 5 of our
proposed approval of the BC RH SIP (77 FR 24790) shows a comparison of
emission data from Bernalillo County and a trend of decreasing
emissions compared to emissions included in the WRAP estimates and
photochemical modeling, projecting a large increase of both NOx and
SO2. Based on the information provided in BC RH SIP
submittal, we agree with the determination that visibility impacts at
the nearby Class I areas due to area and mobile emission sources in
Bernalillo County are overestimated in the WRAP 2002 and 2018
visibility modeling. The emission trends for 2002 through 2008 (BC RH
SIP submittal Appendix 2010-B) indicate that emissions of
NOX and SO2 within Bernalillo County are
declining and therefore visibility impairment due to these emissions
are also anticipated to decrease from their current low levels
presented in Appendix 2007-H and in the addendum to Appendix 2007-H of
the BC RH SIP. We find that BC adequately evaluated the Class I areas
that may be impacted by sources of air pollution within Bernalillo
County and BC adequately determined and demonstrated that, at this
time, it is improbable that sources located within the county cause or
contribute to visibility impairment in a Class I area located outside
of the county. The BC RH SIP submittal therefore complies with 40 CFR
51.309(g)(1) and (2).
---------------------------------------------------------------------------
\6\ AQD exhibit5 EPA Docket EPA-R06-OAR-2008-0702-0013
beginning at page 227.
---------------------------------------------------------------------------
Comment: Section 51.308(d)(1)(vi) states, ``[t]he State may not
adopt a reasonable progress goal that represents less visibility
improvement than is expected to result from implementation of other
requirements of the CAA during the applicable planning period. 40 CFR
51.308(d)(1)(vi). Since the BC RH SIP's reasonable progress goals would
result in less visibility improvement than would be achieved through
application of BART, the BC RH SIP's reasonable progress goals must be
revised to reflect reductions achievable through BART.
Response: There are no Class I areas within Bernalillo County,
therefore BC is not required to nor did they adopt reasonable progress
goals for any Class I area. BC is required to address the apportionment
of visibility impact from the emissions generated by sources within
Bernalillo County at Class I areas outside of the county borders. As
discussed above, we find that BC adequately evaluated the Class I areas
that may be impacted by sources of air pollution within Bernalillo
County and BC adequately determined and demonstrated that, at this
time, it is improbable that sources located within the county cause or
contribute to visibility impairment in a Class I area located outside
of the county.
In addition, no sources in Bernalillo County satisfy the definition
for BART-eligible sources at 40 CFR 51.301. Therefore, no visibility
improvement is anticipated due to the application of BART within
Bernalillo County. We note, that BC is participating in the
SO2 emission milestone and backstop trading program. This
program applies to all SO2 point sources over 100 tons per
year and requires that emissions in the participating States and BC
remain below the established milestone or result in the triggering of
the 309 backstop trading program. The milestone caps these sources at
actual emissions, and the program also provides for a cap on new source
growth. The milestone schedule and the trading program submitted by BC
and the participating states provide for steady and continuing
emissions reductions through 2018.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet
[[Page 71128]]
the criteria of the Clean Air Act. Accordingly, this action merely
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law. Consistent with EPA policy,
EPA nonetheless offered consultation to tribes regarding the rulemaking
action
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 28, 2013. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxides, Visibility, Regional haze, Best available control technology,
Interstate transport of pollution, Visibility.
Dated: November 13, 2012.
Ron Curry,
Regional Administrator, Region 6.
40 CFR part 52 is amended to read as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart GG--New Mexico
0
2. Section 52.1620 is amended:
0
a. In paragraph (c), under the second table entitled ``EPA Approved
Albuquerque/Bernalillo County, NM Regulations'' by revising the entry
for part 21 (20.11.21 NMAC), Open Burning and adding an entry in
sequential order for ``Part 46 (20.11.46 NMAC)''.
0
b. In paragraph (e), under the second table entitled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in The New
Mexico SIP'' by adding new entries to the end of the table for
``Interstate transport for the 1997 ozone and PM2.5 NAAQS''
and ``Regional Haze SIP under 40 CFR 51.309''.
The amendments read as follows:
Sec. 52.1620 Identification of plan.
* * * * *
(c) * * *
[[Page 71129]]
EPA Approved Albuquerque/Bernalillo County, NM Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
approval/
State citation Title/subject effective EPA approval date Explanation
date
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 11--Albuquerque/Bernalillo County Air Quality Control Board
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Part 21 (20.11.21 NMAC)............... Open Burning................. 7/11/2011 11/29/12 and FR page
number where document
begins].
* * * * * * *
Part 46 (20.11.46 NMAC)............... Sulfur Dioxide Emission 5/16/2011 11/29/12 and FR page
Inventory Requirements; number where document
Western Backstop Sulfur begins].
Dioxide Trading Program.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
----------------------------------------------------------------------------------------------------------------
State
Applicable submittal/
Name of SIP provision geographic or effective EPA approval date Explanation
nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Interstate transport for the Bernalillo County.. 7/30/2007 11/29/12 and FR Revisions to prohibit
1997 ozone and PM2.5 NAAQS. page number where interference with
document begins]. measures required to
protect visibility in
any other State.
Revisions to prohibit
contribution to
nonattainment in any
other State approved
11/8/2010 (75 FR
68447).
Regional Haze SIP under 40 CFR Bernalillo County.. 7/28/2011 11/29/12 and FR
51.309. page number where
document begins].
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2012-28822 Filed 11-28-12; 8:45 am]
BILLING CODE 6560-50-P
