Approval, Disapproval and Promulgation of Implementation Plans; State of Wyoming; Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze, 5031-5222 [2014-00930]
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Part II
Environmental Protection Agency
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40 CFR Part 52
Approval, Disapproval and Promulgation of Implementation Plans; State of
Wyoming; Regional Haze State Implementation Plan; Federal
Implementation Plan for Regional Haze; Final Rule
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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2012–0026, FRL9905–42–
R08]
Approval, Disapproval and
Promulgation of Implementation Plans;
State of Wyoming; Regional Haze State
Implementation Plan; Federal
Implementation Plan for Regional Haze
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
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Definitions
The Environmental Protection
Agency (EPA) is partially approving and
partially disapproving a State
Implementation Plan (SIP) submitted by
the State of Wyoming on January 12,
2011, that addresses regional haze. This
SIP was submitted to address the
requirements of the Clean Air Act (CAA
or ‘‘the Act’’) and rules that require
states to address in specific ways any
existing anthropogenic 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. EPA is approving several aspects
of Wyoming’s regional haze SIP that we
had proposed to disapprove in our June
10, 2013 proposed rule in light of public
comments and newly available
information indicating the adequacy of
the SIP with respect to those aspects.
EPA is also approving some aspects of
the State’s SIP that we proposed to
approve. EPA is promulgating a Federal
Implementation Plan (FIP) to address
some of the deficiencies identified in
our proposed partial disapproval of
Wyoming’s regional haze SIP issued on
June 10, 2013. EPA is taking this action
pursuant to sections 110 and 169A of
the CAA.
DATES: This final rule is effective March
3, 2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2012–0026. All
documents in the docket are listed on
the www.regulations.gov Web site.
Publicly available docket materials
are available either electronically
through www.regulations.gov, or in hard
copy at the Air Program, Environmental
Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado
80202–1129. EPA requests that if, at all
possible, you contact the individual
listed in the FOR FURTHER INFORMATION
SUMMARY:
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CONTACT section to view the hard copy
of the docket. You may view the hard
copy of the docket Monday through
Friday, 8 a.m. to 4 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Laurel Dygowski, Air Program,
Mailcode 8P–AR, Environmental
Protection Agency, Region 8, 1595
Wynkoop Street, Denver, Colorado
80202–1129, (303) 312–6144,
dygowski.laurel@epa.gov.
SUPPLEMENTARY INFORMATION:
For the purpose of this document, we
are giving meaning to certain words or
initials as follows:
i. The words or initials Act or CAA mean
or refer to the Clean Air Act, unless the
context indicates otherwise.
ii. The initials AFUDC mean or refer to
Allowance for Funds Utilized During
Construction.
iii. The initials APA mean or refer to the
Administrative Procedures Act.
iv. The initials AQRV mean or refer to Air
Quality Related Value.
v. The initials BACT mean or refer to Best
Available Control Technology.
vi. The initials BART mean or refer to Best
Available Retrofit Technology.
vii. The initials CAMD mean or refer to
Clean Air Markets Division.
viii. The initials CAMx mean or refer to
Comprehensive Air Quality Model.
ix. The initials CCM mean or refer to EPA’s
Control Cost Manual.
x. The initials CLRC mean or refer to the
Construction Labor Research Council.
xi. The initials CMAQ mean or refer to
Community Multi-Scale Air Quality
modeling system.
xii. The initials CSAPR mean or refer to the
Cross-State Air Pollution Rule.
xiii. The initial DEQ mean or refer to the
Wyoming Department of Environmental
Quality.
xiv. The initials EGUs mean or refer to
Electric Generating Units.
xv. The initials EIS mean or refer to
Environmental Impact Statement.
xvi. The words EPA, we, us or our mean
or refer to the United States Environmental
Protection Agency.
xvii. The initials ESP mean or refer to
electrostatic precipitator.
xviii. The initials FIP mean or refer to
Federal Implementation Plan.
xix. The initials FLM mean or refer to
Federal Land Managers.
xx. The initials FR mean or refer to the
Federal Register.
xxi. The initials GAQM mean or refer to
Guidance on Air Quality Models.
xxii. The initials IMPROVE mean or refer
to Interagency Monitoring of Protected Visual
Environments monitoring network.
xxiii. The initials IPM mean or refer to
Integrated Planning Model.
xxiv. The initials IWAQM mean or refer to
Interagency Workgroup on Air Quality
Modeling.
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xxv. The initials LNB mean or refer to low
NOX burners.
xxvi. The initials LRS mean or refer to
Laramie River Station.
xxvii. The initials LTS mean or refer to
long term strategy.
xxviii. The initials MATS mean or refer to
the Mercury and Air Toxics Standard.
xxix. The initials MW mean or refer to
megawatts.
xxx. The initials NAAQS mean or refer to
National Ambient Air Quality Standards.
xxxi. The initials NEPA mean or refer to
National Environmental Policy Act.
xxxii. The initials NH 3 mean or refer to
ammonia.
xxxiii. The initials NO X mean or refer to
nitrogen oxides.
xxxiv. The initials OFA mean or refer to
overfire air.
xxxv. The initials PM mean or refer to
particulate matter.
xxxvi. The initials PM 2.5 mean or refer to
particulate matter with an aerodynamic
diameter of less than 2.5 micrometers.
xxxvii. The initials PM 10 mean or refer to
particulate matter with an aerodynamic
diameter of less than 10 micrometers.
xxxviii. The initials PTE mean or refer to
potential to emit.
xxxix. The initials RAVI mean or refer to
reasonably attributable visibility impairment.
xl. The initials RHR mean or refer to the
Regional Haze Rule.
xli. The initials RIS mean or refer to
Regulatory Impact Statement.
xlii. The initials RPG mean or refer to
reasonable progress goals.
xliii. The initials RPO mean or refer to
Regional Planning Organization.
xliv. The initials SCR mean or refer to
selective catalytic reduction.
xlv. The initials SIP mean or refer to State
Implementation Plan.
xlvi. The initials SNCR mean or refer to
selective non-catalytic reduction.
xlvii. The initials SO 2 mean or refer to
sulfur dioxide.
xlviii. The initials SOFA mean or refer to
separated overfire air.
xlix. The initials UMRA mean or refer to
the Unfunded Mandates Reform Act.
l. The initials URP mean or refer to
Uniform Rate of Progress.
li. The initials VOC mean or refer to
volatile organic compounds.
lii. The initials WAQSR mean or refer to
the Wyoming Air Quality Standards and
Regulations.
liii. The initials WRAP mean or refer to the
Western Regional Air Partnership.
liv. The words Wyoming and State mean
the State of Wyoming.
Table of Contents
I. Background
A. Regional Haze
i. Requirements of the CAA and EPA’s
Regional Haze Rule (RHR)
ii. Roles of Agencies in Addressing
Regional Haze
B. Requirements for the Regional Haze SIPs
i. The CAA and the Regional Haze Rule
ii. Determination of Baseline, Natural, and
Current Visibility Conditions
iii. Determination of Reasonable Progress
Goals
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iv. Best Available Retrofit Technology
v. Long-Term Strategy
vi. Coordinating Regional Haze and
Reasonably Attributable Visibility
Impairment
vii. Monitoring Strategy and Other
Implementation Plan Requirements
viii. Consultation With States and Federal
Land Managers (FLMs)
C. Our Proposal
D. Public Participation
II. Final Action
III. Changes From Proposed Rule and
Reasons for Changes
A. Changes to Proposed Costs and
Visibility Improvements
B. Changes to Our Proposed
Determinations
1. Dave Johnston Unit 3
2. Dave Johnston Unit 4
3. Naughton Units 1 and 2
4. Naughton Unit 3
5. Wyodak
6. Jim Bridger
7. Dave Johnston Units 1 and 2
IV. Basis for Our Final Action
A. Laramie River
B. Jim Bridger
C. Dave Johnston Units 3 and 4
D. Naughton
E. Wyodak
F. Dave Johnston Units 1 and 2 (Reasonable
Progress)
V. Issues Raised by Commenters and EPA’s
Responses
A. Legal Issues
1. EPA Authority and State Discretion
2. Compliance With Section 307(d)
3. Compliance With Section 169A(d)
4. Public Hearings
5. RHR and BART Guidelines
6. Reasonableness Standard
7. Reliance on Emission Reductions
8. Presumptive Limits
9. Compliance With 40 CFR 51.308
10. Legal Analysis
11. Consideration of Existing Controls
12. Consent Decree
13. Monitoring, Recordkeeping and
Reporting
B. Modeling
1. General Comments
2. EPA Modeling
a. Description of Revised EPA Modeling
b. Comments on EPA Modeling
C. Overarching Comments on BART
1. BART-Eligible Sources
2. Cost of Controls
3. Consideration of the Five Factors
4. Visibility Improvement
5. PM BART Determinations
6. Incremental Costs and Visibility
7. Other Comments on BART
D. BART Sources
1. Basin Electric Laramie River Station
Units 1–3
a. General Comments
b. NOX BART Determination
2. Jim Bridger Units 1–4
a. NOX BART Determination
b. PM BART Determination
3. Dave Johnston Unit 3 and Unit 4
a. NOX BART Determination
b. Alternative Control Technology Proposal
4. Naughton Units 1–3
a. NOX BART Determination
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b. Alternative Control Technology Proposal
5. Wyodak
6. Trona Mines
a. FMC Westvaco and General Chemical
Green River
b. FMC Granger Trona Mine
E. Reasonable Progress
1. RPGs
2. Reasonable Progress Sources
a. Oil and Gas Sources
b. Dave Johnston Unit 1 and Unit 2
F. General Comments
1. Replacement of FIP Elements With SIP
2. Public Comment
3. Economic Concerns
4. National Ambient Air Quality Standards
(NAAQS)
5. Other
VI. Non-Relevant Comments From EPA’s
Original June 4, 2012 Proposal
A. General Comments
B. Basin Electric Laramie River
C. Jim Bridger Units 1–4
D. Dave Johnston Units 3 and 4
E. Naughton Units 1–3
F. Wyodak
G. Dave Johnston Units 1 and 2
H. Modeling
VII. Statutory and Executive Order Reviews
I. Background
The CAA requires each state to
develop plans, referred to as SIPs, to
meet various air quality requirements. A
state must submit its SIP and SIP
revisions to us for approval. Once
approved, a SIP is enforceable by EPA
and citizens under the CAA, also known
as being federally enforceable. If a state
fails to make a required SIP submittal or
if we find that a state’s required
submittal is incomplete or
unapprovable, then we must promulgate
a FIP to fill this regulatory gap. CAA
section 110(c)(1). This action involves
the requirement that states have SIPs
that address regional haze.
Few states submitted a regional haze
SIP prior to the December 17, 2007
deadline, and on January 15, 2009, EPA
found that 37 states, including
Wyoming,1 the District of Columbia,
and the Virgin Islands, had failed to
submit SIPs addressing the regional
haze requirements. 74 FR 2392. Once
EPA has found that a state has failed to
make a required submission, EPA is
required to promulgate a FIP within two
years unless the state submits a SIP and
the Agency approves it within the twoyear period. CAA section 110(c)(1).
Wyoming subsequently submitted a SIP
1 We issued a finding of failure to submit for
Wyoming only for the requirements of 40 CFR
51.309(g)) regarding required SIP provisions,
including NOX BART, to address visibility at Class
I areas other than the 16 areas covered by the Grand
Canyon Visibility Transport Commission Report.
Wyoming had submitted a SIP for the rest of the
requirements under 40 CFR 51.309 prior to our
January 15, 2009 finding.
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addressing regional haze on January 12,
2011.
States in the west were given the
option to meet the requirements of the
RHR either under 40 CFR 51.309 or 40
CFR 51.308. Wyoming chose to adopt
the requirements of 40 CFR 51.309.
Section 309 requires states to adopt
regional haze strategies that are based
on recommendations from the Grand
Canyon Visibility Transport
Commission for protecting the 16 Class
I areas in the Colorado Plateau area,
including a sulfur dioxide (SO2)
backstop cap and trade program, SO2
milestones, and other requirements such
as smoke management, a program to
address mobile sources, and pollution
prevention. Also, section 309(g)
includes requirements for SIP
provisions, including NOX BART, to
address visibility impairment at other
Class I areas. On December 12, 2012, we
finalized approval of Wyoming’s 309
regional haze SIP for the requirements
relating to the SO2 backstop cap and
trade program, milestones and the other
requirements.2 Today’s action addresses
the remaining portion of Wyoming’s
SIP, including the Best Available
Retrofit Technology (BART)
determinations for nitrogen oxides
(NOX) and particulate matter (PM).
In a lawsuit in the U.S. District Court
for the District of Colorado,
environmental groups sued EPA for our
failure to take timely action with respect
to the regional haze requirements of the
CAA and our regulations.3 In particular,
the lawsuits alleged that we had failed
to promulgate 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 these lawsuits, we
entered into a consent decree. The
consent decree requires that we sign a
notice of final rulemaking addressing
the regional haze requirements for
Wyoming by January 10, 2014.4 We are
meeting that requirement with the
signing of this final rule
A. Regional Haze
Regional haze is visibility impairment
that is produced by a multitude of
sources and activities which are located
across a broad geographic area and emit
fine particles (PM2.5) (e.g., sulfates,
nitrates, organic carbon (OC), elemental
carbon (EC), and soil dust), and their
precursors (e.g., sulfur dioxide (SO2),
2 77
FR 73926 (Dec. 12, 2012).
Guardians v. Jackson, 1:11–cv–CMA–
MEH (D. Colo.).
4 WildEarth Guardians v. Jackson, 1:11–cv–CMA–
MEH (D. Colo.) (Dkt. Nos. 73, 74).
3 WildEarth
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NOX, and in some cases, ammonia (NH3)
and volatile organic compounds (VOC)).
Fine particle precursors react in the
atmosphere to form PM2.5, which
impairs visibility by scattering and
absorbing light. Visibility impairment
reduces the clarity, color, and visible
distance that one can see. PM2.5 can also
cause serious health effects and
mortality in humans and contributes to
environmental effects such as acid
deposition and eutrophication.
Data from the existing visibility
monitoring network, the ‘‘Interagency
Monitoring of Protected Visual
Environments’’ (IMPROVE) monitoring
network, show that visibility
impairment caused by air pollution
occurs virtually all the time at most
national park and wilderness areas. The
average visual range 5 in many Class I
areas (i.e., national parks and memorial
parks, wilderness areas, and
international parks meeting certain size
criteria) in the western United States is
100–150 kilometers, or about one-half to
two-thirds of the visual range that
would exist without anthropogenic air
pollution. In most of the eastern Class
I areas of the United States, the average
visual range is less than 30 kilometers,
or about one-fifth of the visual range
that would exist under estimated
natural conditions. 64 FR 35715 (July 1,
1999).
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i. Requirements of the CAA and EPA’s
Regional Haze Rule (RHR)
In section 169A of the 1977
Amendments to the CAA, Congress
created a program for protecting
visibility in the nation’s national parks
and wilderness areas. This section of the
CAA establishes as a national goal the
‘‘prevention of any future, and the
remedying of any existing, impairment
of visibility in mandatory Class I
Federal areas 6 which impairment
5 Visual range is the greatest distance, in
kilometers or miles, at which a dark object can be
viewed against the sky.
6 Areas designated as mandatory Class I Federal
areas consist of national parks exceeding 6000
acres, wilderness areas and national memorial parks
exceeding 5000 acres, and all international parks
that were in existence on August 7, 1977. 42 U.S.C.
7472(a). In accordance with section 169A of the
CAA, EPA, in consultation with the Department of
Interior, promulgated a list of 156 areas where
visibility is identified as an important value. 44 FR
69122 (November 30, 1979). The extent of a
mandatory Class I area includes subsequent changes
in boundaries, such as park expansions. 42 U.S.C.
7472(a). Although states and tribes may designate
as Class I additional areas which they consider to
have visibility as an important value, the
requirements of the visibility program set forth in
section 169A of the CAA apply only to ‘‘mandatory
Class I Federal areas.’’ Each mandatory Class I
Federal area is the responsibility of a ‘‘Federal Land
Manager.’’ 42 U.S.C. 7602(i). When we use the term
‘‘Class I area’’ in this action, we mean a ‘‘mandatory
Class I Federal area.’’
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results from manmade air pollution.’’
On December 2, 1980, EPA promulgated
regulations to address visibility
impairment in Class I areas that is
‘‘reasonably attributable’’ to a single
source or small group of sources, i.e.,
‘‘reasonably attributable visibility
impairment.’’ 45 FR 80084. These
regulations represented the first phase
in addressing visibility impairment.
EPA deferred action on regional haze
that emanates from a variety of sources
until monitoring, modeling and
scientific knowledge about the
relationships between pollutants and
visibility impairment were improved.
Congress added section 169B to the
CAA in 1990 to address regional haze
issues. EPA promulgated a rule to
address regional haze on July 1, 1999.
64 FR 35714 (July 1, 1999), codified at
40 CFR part 51, subpart P. The RHR
revised the existing visibility
regulations to integrate into the
regulation provisions addressing
regional haze impairment and
established a comprehensive visibility
protection program for Class I areas. The
requirements for regional haze, found at
40 CFR 51.308 and 51.309, are included
in EPA’s visibility protection
regulations at 40 CFR 51.300–51.309.
Some of the main elements of the
regional haze requirements are
summarized in section III of this
preamble. The requirement to submit a
regional haze SIP applies to all 50 states,
the District of Columbia and the Virgin
Islands. 40 CFR 51.308(b) requires states
to submit the first implementation plan
addressing regional haze visibility
impairment no later than December 17,
2007.7
Few states submitted a regional haze
SIP prior to the December 17, 2007
deadline, and on January 15, 2009, EPA
found that 37 states (including
Wyoming), the District of Columbia, and
the Virgin Islands, had failed to submit
SIPs addressing the regional haze
requirements. 74 FR 2392. Once EPA
has found that a state has failed to make
a required submission, EPA is required
to promulgate a FIP within two years
unless the state submits a SIP and the
Agency approves it within the two-year
period. CAA section110(c)(1).
ii. Roles of Agencies in Addressing
Regional Haze
Successful implementation of the
regional haze program will require longterm regional coordination among
states, tribal governments, and various
federal agencies. As noted above,
7 EPA’s regional haze regulations require
subsequent updates to the regional haze SIPs. 40
CFR 51.308(g)–(i).
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pollution affecting the air quality in
Class I areas can be transported over
long distances, even hundreds of
kilometers. Therefore, to effectively
address the problem of visibility
impairment in Class I areas, states need
to develop strategies in coordination
with one another, taking into account
the effect of emissions from one
jurisdiction on the air quality in
another.
Because the pollutants that lead to
regional haze can originate from sources
located across broad geographic areas,
EPA has encouraged the states and
tribes across the United States to
address visibility impairment from a
regional perspective. Five regional
planning organizations (RPOs) were
developed to address regional haze and
related issues. The RPOs first evaluated
technical information to better
understand how their states and tribes
impact Class I areas across the country,
and then pursued the development of
regional strategies to reduce emissions
of pollutants that lead to regional haze.
The Western Regional Air Partnership
(WRAP) RPO is a collaborative effort of
state governments, tribal governments,
and various federal agencies established
to initiate and coordinate activities
associated with the management of
regional haze, visibility and other air
quality issues in the western United
States. WRAP member state
governments include: Alaska, Arizona,
California, Colorado, Idaho, Montana,
New Mexico, North Dakota, Oregon,
South Dakota, Utah, Washington, and
Wyoming. Tribal members include
Campo Band of Kumeyaay Indians,
Confederated Salish and Kootenai
Tribes, Cortina Indian Rancheria, Hopi
Tribe, Hualapai Nation of the Grand
Canyon, Native Village of Shungnak,
Nez Perce Tribe, Northern Cheyenne
Tribe, Pueblo of Acoma, Pueblo of San
Felipe, and Shoshone-Bannock Tribes of
Fort Hall.
B. Requirements for Regional Haze SIPs
The following is a summary of the
requirements of the RHR. See 40 CFR
51.308 for further detail regarding the
requirements of the rule.
i. The CAA and the Regional Haze Rule
Regional haze SIPs must assure
reasonable progress towards the
national goal of achieving natural
visibility conditions in Class I areas.
Section 169A of the CAA and EPA’s
implementing regulations require states
to establish long-term strategies for
making reasonable progress toward
meeting this goal. Implementation plans
must also give specific attention to
certain stationary sources that were in
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existence on August 7, 1977, but were
not in operation before August 7, 1962,
and require these sources, where
appropriate, to install BART controls for
the purpose of eliminating or reducing
visibility impairment. The specific
regional haze SIP requirements are
discussed in further detail below.
ii. Determination of Baseline, Natural,
and Current Visibility Conditions
The RHR establishes the deciview as
the principal metric or unit for
expressing visibility. See 70 FR 39104,
39118. This visibility metric expresses
uniform changes in the degree of haze
in terms of common increments across
the entire range of visibility conditions,
from pristine to extremely hazy
conditions. Visibility expressed in
deciviews is determined by using air
quality measurements to estimate light
extinction and then transforming the
value of light extinction using a
logarithmic function. The deciview is a
more useful measure for tracking
progress in improving visibility than
light extinction itself because each
deciview change is an equal incremental
change in visibility perceived by the
human eye. Most people can detect a
change in visibility at one deciview.8
The deciview is used in expressing
RPGs (which are interim visibility goals
towards meeting the national visibility
goal), defining baseline, current, and
natural conditions, and tracking changes
in visibility. The regional haze SIPs
must contain measures that ensure
‘‘reasonable progress’’ toward the
national goal of preventing and
remedying visibility impairment in
Class I areas caused by anthropogenic
air pollution by reducing anthropogenic
emissions that cause regional haze. The
national goal is a return to natural
conditions, i.e., anthropogenic sources
of air pollution would no longer impair
visibility in Class I areas.
To track changes in visibility over
time at each of the 156 Class I areas
covered by the visibility program (40
CFR 81.401–437), and as part of the
process for determining reasonable
progress, states must calculate the
degree of existing visibility impairment
at each Class I area at the time of each
regional haze SIP submittal and
periodically review progress every five
years midway through each 10-year
implementation period. To do this, the
RHR requires states to determine the
degree of impairment (in deciviews) for
the average of the 20 percent least
impaired (‘‘best’’) and 20 percent most
8 The preamble to the RHR provides additional
details about the deciview. 64 FR 35714, 35725
(July 1, 1999).
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impaired (‘‘worst’’) visibility days over
a specified time period at each of their
Class I areas. In addition, states must
also develop an estimate of natural
visibility conditions for the purpose of
comparing progress toward the national
goal. Natural visibility is determined by
estimating the natural concentrations of
pollutants that cause visibility
impairment and then calculating total
light extinction based on those
estimates. We have provided guidance
to states regarding how to calculate
baseline, natural and current visibility
conditions.9
For the first regional haze SIPs that
were due by December 17, 2007,
‘‘baseline visibility conditions’’ were the
starting points for assessing ‘‘current’’
visibility impairment. Baseline visibility
conditions represent the degree of
visibility impairment for the 20 percent
least impaired days and 20 percent most
impaired days for each calendar year
from 2000 to 2004. Using monitoring
data for 2000 through 2004, states are
required to calculate the average degree
of visibility impairment for each Class I
area, based on the average of annual
values over the five-year period. The
comparison of initial baseline visibility
conditions to natural visibility
conditions indicates the amount of
improvement necessary to attain natural
visibility, while the future comparison
of baseline conditions to the then
current conditions will indicate the
amount of progress made. In general, the
2000–2004 baseline period is
considered the time from which
improvement in visibility is measured.
iii. Determination of Reasonable
Progress Goals
The vehicle for ensuring continuing
progress towards achieving the natural
visibility goal is the submission of a
series of regional haze SIPs from the
states that establish two RPGs (i.e., two
distinct goals, one for the ‘‘best’’ and
one for the ‘‘worst’’ days) for every Class
I area for each (approximately) 10-year
implementation period. See 40 CFR
51.308(d), (f). The RHR does not
mandate specific milestones or rates of
progress, but instead calls for states to
establish goals that provide for
‘‘reasonable progress’’ toward achieving
9 Guidance for Estimating Natural Visibility
Conditions Under the Regional Haze Rule,
September 2003, EPA–454/B–03–005, available at
http://www.epa.gov/ttncaaa1/t1/memoranda/
Regional_Haze_envcurhr_gd.pdf, (hereinafter
referred to as ‘‘our 2003 Natural Visibility
Guidance’’); and Guidance for Tracking Progress
Under the Regional Haze Rule, (September 2003,
EPA–454/B–03–004, available at http://
www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_
gd.pdf, (hereinafter referred to as our ‘‘2003
Tracking Progress Guidance’’).
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5035
natural visibility conditions. In setting
RPGs, states must provide for an
improvement in visibility for the most
impaired days over the (approximately)
10-year period of the SIP, and ensure no
degradation in visibility for the least
impaired days over the same period. Id.
In establishing RPGs, states are
required to consider the following
factors established in section 169A of
the CAA and in our RHR at 40 CFR
51.308(d)(1)(i)(A): (1) The costs of
compliance; (2) the time necessary for
compliance; (3) the energy and non-air
quality environmental impacts of
compliance; and (4) the remaining
useful life of any potentially affected
sources. States must demonstrate in
their SIPs how these factors are
considered when selecting the RPGs for
the best and worst days for each
applicable Class I area. In setting the
RPGs, states must also consider the rate
of progress needed to reach natural
visibility conditions by 2064 (referred to
as the ‘‘uniform rate of progress’’ (URP)
or the ‘‘glidepath’’) and the emission
reduction measures needed to achieve
that rate of progress over the 10-year
period of the SIP. Uniform progress
towards achievement of natural
conditions by the year 2064 represents
a rate of progress, which states are to
use for analytical comparison to the
amount of progress they expect to
achieve. In setting RPGs, each state with
one or more Class I areas (‘‘Class I
state’’) must also consult with
potentially ‘‘contributing states,’’ i.e.,
other nearby states with emission
sources that may be affecting visibility
impairment at the state’s Class I areas.
40 CFR 51.308(d)(1)(iv). In determining
whether a state’s goals for visibility
improvement provide for reasonable
progress toward natural visibility
conditions, EPA is required to evaluate
the demonstrations developed by the
state pursuant to paragraphs 40 CFR
51.308(d)(1)(i) and (d)(1)(ii). 40 CFR
51.308(d)(1)(iii).
iv. Best Available Retrofit Technology
Section 169A of the CAA directs
states to evaluate the use of retrofit
controls at certain larger, often
uncontrolled, older stationary sources in
order to address visibility impacts from
these sources. Specifically, section
169A(b)(2)(A) of the CAA requires states
to revise their SIPs to contain such
measures as may be necessary to make
reasonable progress towards the natural
visibility goal, including a requirement
that certain categories of existing major
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stationary sources10 built between 1962
and 1977 procure, install, and operate
the ‘‘Best Available Retrofit
Technology’’ as determined by the state.
Under the RHR, states are directed to
conduct BART determinations for such
‘‘BART-eligible’’ sources that may be
anticipated to cause or contribute to any
visibility impairment in a Class I area.
Rather than requiring source-specific
BART controls, states also have the
flexibility to adopt an emissions trading
program or other alternative program as
long as the alternative provides greater
reasonable progress towards improving
visibility than BART.
On July 6, 2005, EPA published the
Guidelines for BART Determinations
Under the Regional Haze Rule at
appendix Y to 40 CFR part 51
(hereinafter referred to as the ‘‘BART
Guidelines’’) to assist states in
determining which of their sources
should be subject to the BART
requirements and in determining
appropriate emission limits for each
applicable source. 70 FR 39104. In
making a BART determination for a
fossil fuel-fired electric generating plant
with a total generating capacity in
excess of 750 megawatts (MW), a state
must use the approach set forth in the
BART Guidelines. Generally, a state is
encouraged, but not required, to follow
the BART Guidelines in making BART
determinations for other types of
sources. Regardless of source size or
type, a state must meet the requirements
of the CAA and our regulations for
selection of BART, and the state’s BART
analysis and determination must be
reasonable in light of the overarching
purpose of the regional haze program.
The process of establishing BART
emission limitations can be logically
broken down into three steps: First,
states identify those sources which meet
the definition of ‘‘BART-eligible source’’
set forth in 40 CFR 51.301; 11 second,
states determine which of such sources
‘‘emits any air pollutant which may
reasonably be anticipated to cause or
contribute to any impairment of
visibility in any such area’’ (a source
which fits this description is ‘‘subject to
BART’’); and third, for each source
subject-to-BART, states then identify the
best available type and level of control
for reducing emissions.
10 The set of ‘‘major stationary sources’’
potentially subject-to-BART is listed in CAA section
169A(g)(7).
11 BART-eligible sources are those sources that
have the potential to emit 250 tons or more of a
visibility-impairing air pollutant, were not in
operation prior to August 7, 1962, but were in
existence on August 7, 1977, and whose operations
fall within one or more of 26 specifically listed
source categories. 40 CFR 51.301.
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States must address all visibilityimpairing pollutants emitted by a source
in the BART determination process. The
most significant visibility impairing
pollutants are SO2, NOX, and PM. EPA
has stated that states should use their
best judgment in determining whether
VOC or NH3 emissions impair visibility
in Class I areas.
Under the BART Guidelines, states
may select an exemption threshold
value for their BART modeling, below
which a BART-eligible source would
not be expected to cause or contribute
to visibility impairment in any Class I
area. The state must document this
exemption threshold value in the SIP
and must state the basis for its selection
of that value. Any source with
emissions that model above the
threshold value would be subject to a
BART determination review. The BART
Guidelines acknowledge varying
circumstances affecting different Class I
areas. States should consider the
number of emission sources affecting
the Class I areas at issue and the
magnitude of the individual sources’
impacts. Any exemption threshold set
by the state should not be higher than
0.5 deciview. 40 CFR part 51, appendix
Y, section III.A.1.
In their SIPs, states must identify the
sources that are subject-to-BART and
document their BART control
determination analyses for such sources.
In making their BART determinations,
section 169A(g)(2) of the CAA requires
that states consider the following factors
when evaluating potential control
technologies: (1) The costs of
compliance; (2) the energy and non-air
quality environmental impacts of
compliance; (3) any existing pollution
control technology in use at the source;
(4) the remaining useful life of the
source; and (5) the degree of
improvement in visibility which may
reasonably be anticipated to result from
the use of such technology.
A regional haze SIP must include
source-specific BART emission limits
and compliance schedules for each
source subject-to-BART. Once a state
has made its BART determination, the
BART controls must be installed and in
operation as expeditiously as
practicable, but no later than five years
after the date of EPA approval of the
regional haze SIP. CAA section 169(g)(4)
and 40 CFR 51.308(e)(1)(iv). In addition
to what is required by the RHR, general
SIP requirements mandate that the SIP
must also include all regulatory
requirements related to monitoring,
recordkeeping, and reporting for the
BART controls on the source. See e.g.
CAA section 110(a). As noted above, the
RHR allows states to implement an
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alternative program in lieu of BART so
long as the alternative program can be
demonstrated to achieve greater
reasonable progress toward the national
visibility goal than would BART.
v. Long-Term Strategy
Consistent with the requirement in
section 169A(b) of the CAA that states
include in their regional haze SIP a 10
to 15-year strategy for making
reasonable progress, section 51.308(d)(3)
of the RHR requires that states include
a LTS in their regional haze SIPs. The
LTS is the compilation of all control
measures a state will use during the
implementation period of the specific
SIP submittal to meet applicable RPGs.
The LTS must include ‘‘enforceable
emissions limitations, compliance
schedules, and other measures as
necessary to achieve the reasonable
progress goals’’ for all Class I areas
within, or affected by emissions from,
the state. 40 CFR 51.308(d)(3).
When a state’s emissions are
reasonably anticipated to cause or
contribute to visibility impairment in a
Class I area located in another state, the
RHR requires the impacted state to
coordinate with the contributing states
in order to develop coordinated
emissions management strategies. 40
CFR 51.308(d)(3)(i). In such cases, the
contributing state must demonstrate that
it has included, in its SIP, all measures
necessary to obtain its share of the
emission reductions needed to meet the
RPGs for the Class I area. Id. at (d)(3)(ii).
The RPOs have provided forums for
significant interstate consultation, but
additional consultations between states
may be required to sufficiently address
interstate visibility issues. This is
especially true where two states belong
to different RPOs.
States should consider all types of
anthropogenic sources of visibility
impairment in developing their longterm strategy, including stationary,
minor, mobile, and area sources. At a
minimum, states must describe how
each of the following seven factors
listed below are taken into account in
developing their LTS: (1) Emission
reductions due to ongoing air pollution
control programs, including measures to
address RAVI; (2) measures to mitigate
the impacts of construction activities;
(3) emissions limitations and schedules
for compliance to achieve the RPG; (4)
source retirement and replacement
schedules; (5) smoke management
techniques for agricultural and forestry
management purposes including plans
as currently exist within the state for
these purposes; (6) enforceability of
emissions limitations and control
measures; and (7) the anticipated net
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effect on visibility due to projected
changes in point, area, and mobile
source emissions over the period
addressed by the LTS. 40 CFR
51.308(d)(3)(v).
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vi. Coordinating Regional Haze and
Reasonably Attributable Visibility
Impairment
As part of the RHR, EPA revised 40
CFR 51.306(c) regarding the LTS for
RAVI to require that the RAVI plan must
provide for a periodic review and SIP
revision not less frequently than every
three years until the date of submission
of the state’s first plan addressing
regional haze visibility impairment,
which was due December 17, 2007, in
accordance with 40 CFR 51.308(b) and
(c). On or before this date, the state must
revise its plan to provide for review and
revision of a coordinated LTS for
addressing RAVI and regional haze, and
the state must submit the first such
coordinated LTS with its first regional
haze SIP. Future coordinated LTS’s, and
periodic progress reports evaluating
progress towards RPGs, must be
submitted consistent with the schedule
for SIP submission and periodic
progress reports set forth in 40 CFR
51.308(f) and 51.308(g), respectively.
The periodic review of a state’s LTS
must report on both regional haze and
RAVI impairment and must be
submitted to EPA as a SIP revision.
vii. Monitoring Strategy and Other
Implementation Plan Requirements
Section 51.308(d)(4) of the RHR
includes the requirement for a
monitoring strategy for measuring,
characterizing, and reporting of regional
haze visibility impairment that is
representative of all mandatory Class I
Federal areas within the state. The
strategy must be coordinated with the
monitoring strategy required in section
51.305 for RAVI. Compliance with this
requirement may be met through
‘‘participation’’ in the IMPROVE
network, i.e., review and use of
monitoring data from the network. The
monitoring strategy is due with the first
regional haze SIP, and it must be
reviewed every five years. The
monitoring strategy must also provide
for additional monitoring sites if the
IMPROVE network is not sufficient to
determine whether RPGs will be met.
The SIP must also provide for the
following:
• Procedures for using monitoring
data and other information in a state
with mandatory Class I areas to
determine the contribution of emissions
from within the state to regional haze
visibility impairment at Class I areas
both within and outside the state;
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18:38 Jan 29, 2014
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• Procedures for using monitoring
data and other information in a state
with no mandatory Class I areas to
determine the contribution of emissions
from within the state to regional haze
visibility impairment at Class I areas in
other states;
• Reporting of all visibility
monitoring data to the Administrator at
least annually for each Class I area in
the state, and where possible, in
electronic format;
• Developing a statewide inventory of
emissions of pollutants that are
reasonably anticipated to cause or
contribute to visibility impairment in
any Class I area. The inventory must
include emissions for a baseline year,
emissions for the most recent year for
which data are available, and estimates
of future projected emissions. A state
must also make a commitment to update
the inventory periodically; and
• Other elements, including
reporting, recordkeeping, and other
measures necessary to assess and report
on visibility.
The RHR requires control strategies to
cover an initial implementation period
extending to the year 2018, with a
comprehensive reassessment and
revision of those strategies, as
appropriate, every 10 years thereafter.
Periodic SIP revisions must meet the
core requirements of section 51.308(d)
with the exception of BART. The
requirement to evaluate sources for
BART applies only to the first regional
haze SIP. Facilities subject-to-BART
must continue to comply with the BART
provisions of section 51.308(e), as noted
above. Periodic SIP revisions will assure
that the statutory requirement of
reasonable progress will continue to be
met.
viii. Consultation With States and
Federal Land Managers (FLMs)
The RHR requires that states consult
with FLMs before adopting and
submitting their SIPs. 40 CFR 51.308(i).
States must provide FLMs an
opportunity for consultation, in person
and at least 60 days prior to holding any
public hearing on the SIP. This
consultation must include the
opportunity for the FLMs to discuss
their assessment of impairment of
visibility in any Class I area and to offer
recommendations on the development
of the RPGs and on the development
and implementation of strategies to
address visibility impairment. Further, a
state must include in its SIP a
description of how it addressed any
comments provided by the FLMs.
Finally, a SIP must provide procedures
for continuing consultation between the
state and FLMs regarding the state’s
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5037
visibility protection program, including
development and review of SIP
revisions, five-year progress reports, and
the implementation of other programs
having the potential to contribute to
impairment of visibility in Class I areas.
C. Our Proposal
We signed our notice of proposed
rulemaking on May 23, 2013,12 and it
was published in the Federal Register
on June 10, 2013 (78 FR 34738). In our
2013 proposal, we proposed to approve
many of Wyoming’s regional haze SIP,
including the State’s identification of its
BART sources, its identification of those
BART sources that may be anticipated
to cause or contribute to visibility
impairment, and the State’s BART
determinations for PM. Because of
deficiencies in Wyoming’s NOX BART
analyses, however, we proposed to
disapprove the NOX BART emissions
limitations for a number of sources, as
well as the reasonable progress goals
and long-term strategy. We proposed to
address the NOX BART requirements for
these sources and the other deficiencies
in the Wyoming plan in a FIP, based on
our analysis of the relevant factors. For
several BART sources we also asked in
the proposed rulemaking if interested
parties had additional information
regarding the BART factors and EPA’s
proposed determinations, for example
our weighing of average costs,
incremental costs, visibility
improvement, and timing of installation
of such controls, and in light of such
information, whether the interested
parties thought the Agency should
consider another BART control
technology option that could be
finalized either instead of, or in
conjunction with, BART as proposed.13
In our 2013 proposal we proposed to
disapprove the following:
12 On May 15, 2012 the EPA signed the first
proposed rule on the Wyoming Regional Haze SIP
which proposed to partially approve and partially
disapprove the Wyoming state plan. The EPA
published the proposed rule in the Federal Register
for public comment on June 4, 2012. This public
Federal Register notice may be found at 77 FR
33022 (June 4, 2012). EPA then obtained an
extension to the Consent Decree deadline in order
to re-propose the Wyoming regional haze plan
based on data generated after the conclusion of the
original comment period. In this document, all
references to ‘‘proposal’’ or ‘‘proposal notice’’ refer
to the notice published on June 10, 2013 unless
otherwise stated.
13 E.g., 78 FR 34777. The proposed notice also
explained that ‘‘[t]he Agency will take the
comments and testimony received, as well as any
further SIP revisions submitted by the State, into
consideration in our final promulgation.
Supplemental information received may lead the
Agency to adopt final SIP and/or FIP regulations
that reflect a different BART control technology
option, or impact other proposed regulatory
provisions, which differ from this proposal.’’ 78 FR
34777.
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• The State’s nitrogen oxides (NOX)
best available retrofit technology
(BART) determinations for PacifiCorp
Dave Johnston Units 3 and 4, PacifiCorp
Naughton Units 1 and 2, PacifiCorp
Wyodak Unit 1, and Basin Electric
Laramie River Units 1, 2, and 3.
• The State’s NOX reasonable
progress determinations for PacifiCorp
Dave Johnston Units 1 and 2.
• Wyoming’s reasonable progress
goals (RPGs).
• The State’s monitoring,
recordkeeping, and reporting
requirements in Chapter 6.4 of the SIP.
• Portions of the State’s long-term
strategy (LTS) that rely on or reflect
other aspects of the regional haze SIP
that we are disapproving.
• The provisions necessary to meet
the requirements for the coordination of
the review of the reasonably attributable
visibility impairment (RAVI) and the
regional haze LTS.
We proposed the promulgation of a
FIP to address the deficiencies in the
Wyoming regional haze SIP that we
identified in the proposed notice. The
proposed FIP included the following
elements:
• NOX BART determinations and
limits for PacifiCorp Dave Johnston
Units 3 and 4, PacifiCorp Naughton
Units 1 and 2, PacifiCorp Wyodak Unit
1, and Basin Electric Laramie River
Units 1, 2, and 3.
• NOX reasonable progress
determinations and limits for PacifiCorp
Dave Johnston Units 1 and 2.
• RPGs consistent with the SIP limits
proposed for approval and the proposed
FIP limits.
• Monitoring, recordkeeping, and
reporting requirements applicable to all
BART and reasonable progress sources
for which there is a SIP or FIP emissions
limit.
• LTS elements pertaining to
emission limits and compliance
schedules for the proposed BART and
reasonable progress FIP emission limits.
• Provisions to ensure the
coordination of the RAVI and regional
haze LTS.
We also requested comment on an
alternative proposal, related to the
State’s NOX BART determinations, for
PacifiCorp Jim Bridger Units 1 and 2,
that would involve disapproval and the
promulgation of a FIP.
D. Public Participation
We requested comments on all
aspects of our proposed action. In our
proposed rulemaking, we provided a 60day comment period, with the comment
period closing on August 9, 2013. We
also held a public hearing on June 24,
2013, in Cheyenne, Wyoming. We
received requests from Wyoming’s
governor, congressional delegation, and
Department of Environmental Quality
(DEQ), among others, for additional
public hearings and an extended public
comment period. As a result, we held
two more public hearings. We held a
hearing on July 17, 2013, in Cheyenne,
Wyoming, and on July 26, 2013, in
Casper, Wyoming. We also extended the
comment period to August 26, 2013. We
provided public notice of the additional
hearings and extension of the public
comment period on July 8, 2013. 78 FR
40654.
II. Final Action
Based upon comments received on
our proposed action, in this final action
we are partially approving and partially
disapproving Wyoming’s regional haze
SIP submitted on January 12, 2011. We
are approving the majority of the State’s
regional haze determinations. For the
fifteen coal fired power plant units in
Wyoming subject to the regional haze
requirements, we are approving the
State’s NOX emission control technology
decisions for 10 of those units. We are
also approving the State’s plan for the
non-power plant facilities subject to
regional haze requirements and the
State’s plan for control of PM. We are
approving all aspects of Wyoming’s SIP,
except for the following elements which
we are disapproving:
• The State’s NOX BART
determinations for PacifiCorp Dave
Johnston Unit 3, PacifiCorp Wyodak
Unit 1, and Basin Electric Laramie River
Units 1, 2, and 3.
• Wyoming’s RPGs.
• The State’s monitoring,
recordkeeping, and reporting
requirements in Chapter 6.4 of the SIP.
• Portions of the State’s LTS that rely
on or reflect other aspects of the
regional haze SIP that we are
disapproving.
• The provisions necessary to meet
the requirements for the coordination of
the review of the RAVI and the regional
haze LTS.
The final FIP includes the following
elements:
• NOX BART determinations and
emission limits for PacifiCorp Dave
Johnston Unit 3, Wyodak Unit 1, and
Basin Electric Laramie River Units 1, 2,
and 3.
• RPGs consistent with the SIP
emission limits finalized for approval
and the finalized FIP emission limits.
• Monitoring, recordkeeping, and
reporting requirements applicable to all
BART sources for which there is a SIP
or FIP emissions limit.
• LTS elements pertaining to
emission limits and compliance
schedules for the finalized FIP emission
limits.
• Provisions to ensure the
coordination of the RAVI and regional
haze LTS.
Although we are promulgating a
Federal plan, a state may always submit
a new regional haze SIP to EPA for
review and we would welcome such a
submission. The CAA requires EPA to
take action on such a SIP submittal that
is determined to be complete within 12
months. If the State were to submit a
revision meeting the requirements of the
CAA and the regional haze regulations,
we would propose approval of the
State’s plan as expeditiously as
practicable. We are mindful of the costs
of our final action but have considered
the costs and visibility improvement
that other states and EPA have required
for BART controls.
Table 1 shows the NOX BART control
technologies, associated cost, and
emission reductions for each source that
is subject to the FIP.
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TABLE 1—CONTROL TECHNOLOGIES, COSTS, EMISSION LIMITS, AND COST EFFECTIVENESS FOR SOURCES SUBJECT TO
THE FIP
Source
Dave Johnston
Unit 3.
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Emission
limit—lb/MMBtu
(30-day rolling
average)
Technology *
New low-NOX burners (LNBs) with
overfire air (OFA) and shut down in
2027; or new LNBs with OFA and
selective
catalytic
reduction
(SCR) **.
21:27 Jan 29, 2014
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with OFA).
Frm 00008
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Total capital cost
($)
Total annualized
cost
($)
$15,976,696 (for
LNBs with OFA).
$1,828,137 (for
LNBs with OFA).
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Average costeffectiveness
($/ton)
$644 (for LNBs
with OFA).
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TABLE 1—CONTROL TECHNOLOGIES, COSTS, EMISSION LIMITS, AND COST EFFECTIVENESS FOR SOURCES SUBJECT TO
THE FIP—Continued
Technology *
Emission
limit—lb/MMBtu
(30-day rolling
average)
Total capital cost
($)
Total annualized
cost
($)
River Unit
New LNBs/OFA and SCR ..................
0.07 ......................
$180,254,572 .......
$21,770,134 .........
$4,461.
River Unit
New LNBs with OFA and SCR ..........
0.07 ......................
$188,826,333 .......
$22,691,467 .........
$4,424.
River Unit
New LNBs with OFA and SCR ..........
0.07 ......................
$188,437,953 .......
$22,666,982 .........
$4,375.
Unit 1 ......
New LNBs with OFA and SCR ..........
0.07 ......................
$119,501,862 .......
$12,714,153 .........
$4,036.
Source
Laramie
1.
Laramie
2.
Laramie
3.
Wyodak
Average costeffectiveness
($/ton)
* The
technology listed is the technology evaluated as BART, but sources can choose to use another technology or combination of technologies to meet established limits.
** As used in this and the following tables, ‘‘new’’ means replacing the control technology that was in place at the time of the State’s BART
analyses in May 2009 with new control technology, most of which was installed post-2009.
III. Changes From Proposed Rule and
Reasons for Changes
A. Changes to Proposed Costs and
Visibility Improvements
As described in this section and
elsewhere in today’s final rule, we have
revised our cost of compliance analysis
and visibility improvement modeling
from our June 10, 2013 proposed action
for all of the BART and reasonable
progress electric generating units
(EGUs).
EPA revised the cost analyses from
those found in the proposed rule based
upon input from various commenters.
Some of factors that caused us to revise
our cost estimates included accounting
for site elevation in the SCR capital cost,
change in SCR reagent to anhydrous
ammonia from urea, change in auxiliary
electrical cost from market price to
generating cost, change in urea SNCR
chemical utilization for some units due
to high furnace temperatures, and
consideration of shorter plant lifetimes
in some instances. In addition, EPA
incorporated some of the costs provided
by commenters in their site specific cost
estimates where we found those costs to
be sufficiently supported. Per EPA’s
Control Cost Manual (CCM), use of site
specific cost estimates is preferable to
the use of generalized costs where those
site specific costs can be supported and
are appropriate.
EPA addressed comments on the
visibility improvement modeling in the
proposed rule by developing a new
protocol that makes several
improvements in the modeling,
including the use of the current
regulatory version of the CALPUFF
model (version 5.8), the use of an
improved method to assess the effects of
pollutants on light scattering and
visibility impairment (Method 8), the
use of lower background ammonia
concentrations, and the use of an
ammonia limiting correction for BART
sources with multiple units. In
particular, we have used new values for
ammonia background that reflect robust
monitoring data and the appropriate
default concentrations for the geography
in the state.
The results of our revised cost
analysis, along with the revised
visibility impacts, are presented in
Tables 2 through 17 below and
summarized for each source below the
set of tables for that source. Details
regarding our revised cost analysis and
visibility improvement modeling can be
found in the docket.14 15
TABLE 2—SUMMARY OF EPA’S LARAMIE RIVER UNIT 1 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
mstockstill on DSK4VPTVN1PROD with RULES2
New LNBs with OFA .................................................................
New LNBs with OFA and selective non-catalytic reduction
(SNCR) ..................................................................................
New LNBs with OFA and SCR .................................................
14 Andover Technology Partners, ‘‘Cost of NO
X
Controls on Wyoming EGUs’’, October 28, 2013;
Wyoming EGU BART and Reasonable Progress
VerDate Mar<15>2010
18:38 Jan 29, 2014
Jkt 232001
Emission
reduction
(tpy)
Frm 00009
Incremental
cost
effectiveness
($/ton)
0.19
1,556
$2,268,806
$1,458
........................
0.18
0.15
0.05
2,445
4,880
8,554,896
21,770,134
3,485
4,461
$6,993
5,449
0.28
0.57
Costs—10/28/2013; Wyoming EGU BART and
Reasonable Progress Costs for Jim Bridger—10/28/
2013.
PO 00000
Average cost
effectiveness
($/ton)
Annualized
costs
Visibility
improvement
(Delta
deciview for
the maximum
98th percentile
impact at
Badlands
National Park)
Fmt 4701
Sfmt 4700
15 Air Quality Modeling Protocol: Wyoming
Regional Haze Federal Implementation Plan, U.S.
EPA, January, 2014.
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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Rules and Regulations
TABLE 3—SUMMARY OF EPA’S LARAMIE RIVER UNIT 2 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with OFA .................................................................
New LNBs with OFA and SNCR ..............................................
New LNBs with OFA and SCR .................................................
0.19
0.15
0.05
Emission
reduction
(tpy)
1823
2,717
5,129
Incremental
cost
effectiveness
($/ton)
Average cost
effectiveness
($/ton)
Annualized
costs
$2,268,806
8,531,631
22,691,467
$1,244
3,140
4,424
........................
$7,006
5,871
Visibility
improvement
(Delta
deciview for
the maximum
98th percentile
impact at
Badlands
National Park)
0.18
0.27
0.53
TABLE 4—SUMMARY OF EPA’S LARAMIE RIVER UNIT 3 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with OFA .................................................................
New LNBs with OFA and SNCR ..............................................
New LNBs with OFA and SCR .................................................
EPA’s January 2014 modeling
protocol, Appendix H, shows the model
predicted visibility improvement for
each emissions control technology at
each of the Class I areas that we
modeled in our analysis. For Laramie
River we modeled visibility impairment
at Badlands National Park, Wind Cave
National Park, Rawah Wilderness Area,
and Rocky Mountain National Park. At
0.19
0.15
0.05
Emission
reduction
(tpy)
1789
2,706
5,181
$2,268,806
8,643,839
22,666,982
Laramie River Unit 1 the model
visibility improvements with LNB/OFA/
SCR were 0.57 deciviews at Badlands
National Park, 0.47 deciviews at Wind
Cave National Park, 0.25 deciviews at
Rawah Wilderness Area, and 0.39 at
Rocky Mountain National Park. At
Laramie River Unit 2 the model
visibility improvements with LNB/OFA/
SCR were 0.53 deciviews at Badlands,
Incremental
cost
effectiveness
($/ton)
Average cost
effectiveness
($/ton)
Annualized
costs
$1,268
3,194
4,375
........................
$6,951
5,667
Visibility
improvement
(Delta
deciview for
the maximum
98th percentile
impact at
Badlands
National Park)
0.18
0.27
0.52
0.43 deciviews at Wind Cave, 0.26
deciviews at Rawah, and 0.31 at Rocky
Mountain. At Laramie River Unit 3 the
model visibility improvements with
LNB/OFA/SCR were 0.52 deciviews at
Badlands, 0.44 deciviews at Wind Cave,
0.23 deciviews at Rawah, and 0.28 at
Rocky Mountain.
TABLE 5—SUMMARY OF EPA’S JIM BRIDGER UNIT 1 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with SOFA ...............................................................
New LNBs with SOFA and SNCR ............................................
New LNBs with SOFA and SCR ...............................................
0.18
0.14
0.05
Emission
reduction
(tpy)
Annualized
costs
4,558
5,332
7,352
Incremental
cost
effectiveness
($/ton)
Average cost
effectiveness
($/ton)
$1,167,297
4,330,052
19,372,105
$256
812
2,635
........................
$4,088
7,447
Visibility
improvement
(Delta
deciview for
the maximum
98th percentile
impact at
Bridger
Wilderness
Area) **
0.17/0.23
0.20/0.27
0.27/0.37
* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying
concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia.
TABLE 6—SUMMARY OF EPA’S JIM BRIDGER UNIT 2 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
mstockstill on DSK4VPTVN1PROD with RULES2
Control technology
New LNBs with SOFA ...............................................................
New LNBs with SOFA and SNCR ............................................
New LNBs with SOFA and SCR ...............................................
0.19
0.15
0.05
Emission
reduction
(tpy)
Annualized
costs
3,787
4,545
6,554
Average cost
effectiveness
($/ton)
$1,167,297
4,291,184
22,307,492
$308
944
3,403
Incremental
cost
effectiveness
($/ton)
........................
$4,122
8,968
Visibility
improvement
(Delta
deciview for
the maximum
98th percentile
impact at
Bridger
Wilderness
Area) *
0.16/0.21
0.19/0.25
0.27/0.36
* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying
concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia.
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5041
TABLE 7—SUMMARY OF EPA’S JIM BRIDGER UNIT 3 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with SOFA ...............................................................
New LNBs with SOFA and SNCR ............................................
New LNBs with SOFA and SCR ...............................................
0.20
0.16
0.05
Emission
reduction
(tpy)
3,710
4,539
6,799
Incremental
cost
effectiveness
($/ton)
Average cost
effectiveness
($/ton)
Annualized
costs
$1,167,297
4,458,776
22,573,920
$315
982
3,320
........................
$3,972
8,015
Visibility
improvement
(Delta
deciview for
the maximum
98th percentile
impact at
Bridger
Wilderness
Area) *
0.14/0.19
0.17/0.23
0.26/0.35
* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying
concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia.
TABLE 8—SUMMARY OF EPA’S JIM BRIDGER UNIT 4 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with SOFA ...............................................................
New LNBs with SOFA and SNCR ............................................
New LNBs with SOFA and SCR ...............................................
0.19
0.15
0.05
Emission
reduction
(tpy)
Average cost
effectiveness
($/ton)
Annualized
costs
4,161
4,956
7,108
$1,167,297
4,372,457
19,494,417
$281
882
2,743
Incremental
cost
effectiveness
($/ton)
........................
$4,035
7,027
Visibility
improvement
(Delta
deciview for
the maximum
98th percentile
impact at
Rawah
Wilderness
Area) *
0.25/0.23
0.30/0.28
0.45/0.42
mstockstill on DSK4VPTVN1PROD with RULES2
* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying
concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia.
EPA’s January 2014 modeling
protocol, Appendix H, shows the model
predicted visibility improvement for
each emissions control technology at
each of the Class I areas that we
modeled in our analysis of Jim Bridger.
Model simulations were performed
using a monthly varying background
ammonia concentration and using the
IWAQM default concentration for
forested areas of 0.5 ppb. For Jim
Bridger we modeled visibility
impairment at Bridger Wilderness Area,
Fitzpatrick Wilderness Area, Mt Zirkel
Wilderness Area, Rawah Wilderness
Area, Rocky Mountain National Park,
Grand Teton National Park, Teton
Wilderness Area, Washakie Wilderness
Area and Yellowstone National Park.
Under the State’s LTS, LNB/OFA/SCR
would be required on Jim Bridger Units
1 and 2 in 2022 and 2021. Under the
State’s LTS, LNB/OFA/SCR would be
required on Jim Bridger Units 3 and 4
in 2015 and 2016.
For Jim Bridger Unit 1, using monthly
varying ammonia concentrations, model
visibility improvements with LNB/OFA/
SCR were: 0.37 deciviews at Bridger;
0.26 deciviews at Fitzpatrick; 0.29
deciviews at Mt Zirkel; 0.35deciviews at
Rawah; 0.36 deciviews at Rocky
Mountain; 0.17 deciviews at Grand
Teton; 0.14 deciviews at Teton; 0.19
deciviews at Washakie; and 0.15
deciviews at Yellowstone.
VerDate Mar<15>2010
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For Jim Bridger Unit 1, using a
constant 0.5 ppb ammonia
concentration, model visibility
improvements with LNB/OFA/SCR
were: 0.37 deciviews at Bridger; 0.26
deciviews at Fitzpatrick; 0.29 deciviews
at Mt Zirkel; 0.35 deciviews at Rawah;
0.36 deciviews at Rocky Mountain; 0.17
deciviews at Grand Teton; 0.14
deciviews at Teton; 0.19 deciviews at
Washakie; and 0.15 deciviews at
Yellowstone.
For Jim Bridger Unit 2, using monthly
varying ammonia concentrations, model
visibility improvements with LNB/OFA/
SCR were: 0.36 deciviews at Bridger;
0.26 deciviews at Fitzpatrick; 0.28
deciviews at Mt Zirkel; 0.35 deciviews
at Rawah; 0.36 deciviews at Rocky
Mountain; 0.16 deciviews at Grand
Teton; 0.14 deciviews at Teton; 0.19
deciviews at Washakie; and 0.14
deciviews at Yellowstone.
For Jim Bridger Unit 2, using a
constant 0.5 ppb ammonia
concentration, model visibility
improvements with LNB/OFA/SCR
were: 0.36 deciviews at Bridger; 0.26
deciviews at Fitzpatrick; 0.28 deciviews
at Mt Zirkel; 0.35 deciviews at Rawah;
0.36 deciviews at Rocky Mountain; 0.16
deciviews at Grand Teton; 0.14
deciviews at Teton; 0.19 deciviews at
Washakie; and 0.14 deciviews at
Yellowstone.
For Jim Bridger Unit 3, using monthly
varying ammonia concentrations, model
PO 00000
Frm 00011
Fmt 4701
Sfmt 4700
visibility improvements with LNB/OFA/
SCR were: 0.35 deciviews at Bridger;
0.25 deciviews at Fitzpatrick; 0.28
deciviews at Mt Zirkel; 0.33 deciviews
at Rawah; 0.34 deciviews at Rocky
Mountain; 0.16 deciviews at Grand
Teton; 0.14 deciviews at Teton; 0.18
deciviews at Washakie; and 0.14
deciviews at Yellowstone.
For Jim Bridger Unit 3, using a
constant 0.5 ppb ammonia
concentration, model visibility
improvements with LNB/OFA/SCR
were: 0.35 deciviews at Bridger; 0.25
deciviews at Fitzpatrick; 0.28 deciviews
at Mt Zirkel; 0.33 deciviews at Rawah;
0.34 deciviews at Rocky Mountain; 0.16
deciviews at Grand Teton; 0.14
deciviews at Teton; 0.18 deciviews at
Washakie; and 0.14 deciviews at
Yellowstone.
For Jim Bridger Unit 4, using monthly
varying ammonia concentrations, model
visibility improvements with LNB/OFA/
SCR were: 0.38 deciviews at Bridger;
0.28 deciviews at Fitzpatrick; 0.19
deciviews at Mt Zirkel; 0.42 deciviews
at Rawah; 0.38 deciviews at Rocky
Mountain; 0.32 deciviews at Grand
Teton; 0.15 deciviews at Teton; 0.30
deciviews at Washakie; and 0.16
deciviews at Yellowstone.
For Jim Bridger Unit 4, using a
constant 0.5 ppb ammonia
concentration, model visibility
improvements with LNB/OFA/SCR
were: 0.38 deciviews at Bridger; 0.28
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deciviews at Fitzpatrick; 0.27 deciviews
at Mt Zirkel; 0.42 deciviews at Rawah;
0.38 deciviews at Rocky Mountain; 0.32
deciviews at Grand Teton; 0.15
deciviews at Teton; 0.30 deciviews at
Washakie; and 0.16 deciviews at
Yellowstone.
TABLE 9—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 3 NOX BART ANALYSIS
[9 Year remaining useful life]
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with OFA ................................
New LNBs with OFA and SNCR .............
New LNBs with OFA and SCR ................
0.22
0.16
0.05
Emission
reduction
(tpy)
Annualized
costs
2,837
3,356
4,433
Average cost
effectiveness
($/ton)
$1,828,137
3,898,930
16,591,006
$644
1,162
3,742
Incremental
cost
effectiveness
($/ton)
........................
$3,988
11,781
Visibility improvement
(Delta
deciview for
the maximum
98th percentile
impact at Wind
Cave National
Park)
0.33
0.39
0.51
TABLE 10—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 3 NOX BART ANALYSIS
[20 Year remaining useful life]
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with OFA ................................
New LNBs with OFA and SNCR .............
New LNBs with OFA and SCR ................
0.22
0.16
0.05
Emission
reduction
(tpy)
Annualized
costs
2,837
3,356
4,433
Average cost
effectiveness
($/ton)
$1,699,807
3,510,589
11,680,144
$599
1,046
2,635
Incremental
cost
effectiveness
($/ton)
........................
$3,488
7,583
Visibility improvement
(Delta
deciview for
the maximum
98th percentile
impact at Wind
Cave National
Park)
0.33
0.39
0.51
TABLE 11—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 4 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with OFA ................................
New LNBs with OFA and SNCR .............
New LNBs with OFA and SCR ................
0.14
0.11
0.05
mstockstill on DSK4VPTVN1PROD with RULES2
EPA’s January 2014 modeling
protocol, Appendix H, shows the model
predicted visibility improvement for
each emissions control technology at
each of the Class I areas that we
modeled in our analysis of Dave
Johnston. For Dave Johnston we
modeled visibility impairment at
Badlands National Park, Wind Cave
National Park, Mt Zirkel Wilderness
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Jkt 232001
Emission
reduction
(tpy)
Annualized
costs
3,114
3,505
4,377
$767,342
2,541,600
14,158,899
Area, Rawah Wilderness Area, and
Rocky Mountain National Park. At Dave
Johnston Unit 3 the model visibility
improvements with LNB/OFA/SCR
were 0.47 deciviews at Badlands
National Park, 0.51 deciviews at Wind
Cave National Park, 0.20 deciviews at
Mt Zirkel Wilderness Area, 0.40
deciviews at Rawah Wilderness Area,
and 0.28 at Rocky Mountain National
PO 00000
Frm 00012
Fmt 4701
Sfmt 4700
Average cost
effectiveness
($/ton)
$246
725
3,235
Incremental
cost
effectiveness
($/ton)
........................
$4,535
13,312
Visibility improvement
(Delta
deciview for
the maximum
98th percentile
impact at Wind
Cave National
Park)
0.41
0.46
0.57
Park. At Dave Johnston Unit 4 the model
visibility improvements with LNB/OFA
were 0.55 deciviews at Badlands
National Park, 0.57 deciviews at Wind
Cave National Park, 0.24 deciviews at
Mt Zirkel Wilderness Area, 0.34
deciviews at Rawah Wilderness Area,
and 0.33 deciviews at Rocky Mountain
National Park.
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5043
TABLE 12—SUMMARY OF EPA’S NAUGHTON UNIT 1 NOX BART ANALYSIS
Emission
rate (lb/
MMBtu;
annual
average)
Control technology
New LNBs with OFA ................................
New LNBs with OFA and SNCR .............
New LNBs with OFA and SCR ................
0.21
0.16
0.05
Emission
reduction
(tpy)
Annualized
costs
2,100
2,463
3,209
Average cost
effectiveness
($/ton)
$932,466
2,234,827
9,974,616
$444
907
3,109
Incremental
cost
effectiveness
($/ton)
........................
$3,584
10,384
Visibility improvement
(Delta
deciview for
the Maximum
98th percentile
impact at
Bridger
Wilderness
Area) *
0.22/0.26
0.26/0.30
0.33/0.39
* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia.
TABLE 13—SUMMARY OF EPA’S NAUGHTON UNIT 2 NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with OFA ................................
New LNBs with OFA and SNCR .............
New LNBs with OFA and SCR ................
0.21
0.16
0.05
Emission
reduction
(tpy)
Annualized
costs
2,586
3,024
3,922
Average cost
effectiveness
($/ton)
$883,900
2,480,832
10,062,750
$342
820
2,566
Incremental
cost
effectiveness
($/ton)
........................
$3,647
8,440
Visibility improvement
(Delta
deciview for
the Maximum
98th percentile
impact at
Bridger
Wilderness
Area) *
0.28/0.32
0.34/0.38
0.42/0.46
* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia.
TABLE 14—SUMMARY OF EPA’S NAUGHTON UNIT 3 NOX BART ANALYSIS
[In lieu of conversion of Naughton Unit 3 to natural gas per PacifiCorp request]
Emission rate
(lb/MMBtu;
annual
average)
Control technology
Existing LNBs with OFA** ........................
Existing LNBs with OFA and SNCR ........
Existing LNBs with OFA and SCR ..........
0.33
0.23
0.05
Emission
reduction
(tpy)
Annualized
costs
442
1,673
3,922
Average cost
effectiveness
($/ton)
$106,393
3,852,377
13,604,702
$240
2,303
3,469
Incremental
cost
effectiveness
($/ton)
........................
$3,045
4,335
Visibility improvement
(Delta
deciview for
the Maximum
98th percentile
impact at
Bridger
Wilderness
Area) *
0.05/0.07
0.20/0.29
0.49/0.60
mstockstill on DSK4VPTVN1PROD with RULES2
* Values shown are model results using ammonia based on monitoring and default data; values in straight font are model results using a monitored monthly varying concentration/values in italics are model results using an IWAQM default 0.5 ppb background ammonia.
** As used in this table, ‘‘existing’’ means the control technology that was in place at the time of the State’s BART analyses in May 2009.
EPA’s January 2014 modeling
protocol, Appendix H, shows the model
predicted visibility improvement for
each emissions control technology at
each of the Class I areas that we
modeled in our analysis of Naughton.
For Naughton we modeled visibility
impairment at Bridger Wilderness Area,
Fitzpatrick Wilderness Area, North
Absaroka Wilderness Area, Washakie
Wilderness Area, Teton Wilderness
Area, Grand Teton National Park and
Yellowstone National Park. Model
simulations were performed using a
VerDate Mar<15>2010
18:38 Jan 29, 2014
Jkt 232001
monthly varying background ammonia
concentration and using the IWAQM
default concentration for forested areas
of 0.5 ppb.
For Naughton Unit 1 model visibility
improvements, using monthly varying
ammonia concentrations, with LNB/
OFA and LNB/OFA/SCR were,
respectively: 0.22 and 0.33 deciviews at
Bridger; 0.19 and 0.29 deciviews at
Fitzpatrick; 0.10 and 0.14 at North
Absaroka; 0.10 and 0.15 deciviews at
Washakie; 0.10 and 0.16 deciviews at
Teton; 0.15 and 0.23 deciviews at Grand
PO 00000
Frm 00013
Fmt 4701
Sfmt 4700
Teton; and 0.12 and 0.18 deciviews at
Yellowstone.
For Naughton Unit 1 model visibility
improvements, using a constant 0.5 ppb
ammonia concentration, with LNB/OFA
and LNB/OFA/SCR were, respectively:
0.26 and 0.39 deciviews at Bridger; 0.22
and 0.30 deciviews at Fitzpatrick; 0.10
and 0.14 at North Absaroka; 0.12 and
0.17 deciviews at Washakie; 0.13 and
0.19 deciviews at Teton; 0.19 and 0.29
deciviews at Grand Teton; and 0.13 and
0.19 deciviews at Yellowstone.
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For Naughton Unit 2 model visibility
improvements, using monthly varying
ammonia concentrations, with LNB/
OFA and LNB/OFA/SCR were,
respectively: 0.28 and 0.42 deciviews at
Bridger; 0.25 and 0.36 deciviews at
Fitzpatrick; 0.12 and 0.17 at North
Absaroka; 0.15 and 0.22 deciviews at
Washakie; 0.14 and 0.21 deciviews at
Teton; 0.18 and 0.28 deciviews at Grand
Teton; and 0.16 and 0.22 deciviews at
Yellowstone.
For Naughton Unit 2 model visibility
improvements, using a constant 0.5 ppb
ammonia concentration, with LNB/OFA
and LNB/OFA/SCR were, respectively:
0.32 and 0.46 deciviews at Bridger; 0.26
and 0.38 deciviews at Fitzpatrick; 0.12
and 0.17 at North Absaroka; 0.16 and
0.22 deciviews at Washakie; 0.17 and
0.25 deciviews at Teton; 0.25 and 0.38
deciviews at Grand Teton; and 0.17 and
0.24 deciviews at Yellowstone.
For Naughton Unit 3 model visibility
improvements, using monthly varying
ammonia concentrations, with LNB/
OFA and LNB/OFA/SCR were,
respectively: 0.05 and 0.49 deciviews at
Bridger; 0.05 and 0.42 deciviews at
Fitzpatrick; 0.03 and 0.24 at North
Absaroka; 0.05 and 0.37 deciviews at
Washakie; 0.04 and 0.38 deciviews at
Teton; 0.04 and 0.38 deciviews at Grand
Teton; and 0.04 and 0.39 deciviews at
Yellowstone.
For Naughton Unit 3 model visibility
improvements, using a constant 0.5 ppb
ammonia concentration, with LNB/OFA
and LNB/OFA/SCR were, respectively:
0.07 and 0.60 deciviews at Bridger; 0.05
and 0.44 deciviews at Fitzpatrick; 0.03
and 0.24 at North Absaroka; 0. and 0.
deciviews at Washakie; 0.05 and 0.39
deciviews at Teton; 0.06 and 0.41
deciviews at Grand Teton; and 0.05 and
0.40 deciviews at Yellowstone.
TABLE 15—SUMMARY OF EPA’S WYODAK NOX BART ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
New LNBs with OFA .................................................................
New LNBs with OFA and SNCR ..............................................
New LNBs with OFA and SCR .................................................
EPA’s January 2014 modeling
protocol, Appendix H, shows the model
predicted visibility improvement for
each emissions control technology at
each of the Class I areas that we
0.19
0.15
0.05
Emission
reduction
tpy)
Average cost
effectiveness
($/ton)
Annualized
costs
1,239
1,914
3,735
$1,272,427
3,726,573
15,073,502
modeled in our analysis of Wyodak . For
Wyodak we modeled visibility
impairment at Badlands National Park
and Wind Cave National Park. At
Wyodak Unit 1 the model visibility
$1,027
1,947
4,036
Incremental
cost
effectiveness
($/ton)
........................
3,635
6,233
Visibility improvement
(delta
deciview for
the maximum
98th percentile
impact at Wind
Cave National
Park)
0.21
0.32
0.61
improvements with LNB/OFA/SCR
were 0.61 deciviews at Wind Cave and
0.38 deciviews at Badlands National
Park.
TABLE 16—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 1 NOX REASONABLE PROGRESS ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
Control technology
LNBs with OFA * .......................................................................
LNBs with OFA and SNCR .......................................................
LNBs with OFA and SCR .........................................................
0.20
0.15
0.05
Emission
reduction
(tpy)
Annualized
costs
1,226
1,466
1,947
Average cost
effectiveness
($/ton)
$1,214,000
2,096,430
6,808,374
$990
1,430
3,496
Incremental
cost
effectiveness
($/ton)
........................
3,670
9,798
Visibility improvement
(delta
deciview for
the maximum
98th percentile
impact at Wind
Cave National
Park)
0.12
0.14
0.18
* As used in this and the following tables, control technology that is not preceded by either ‘‘new’’ or ‘‘existing’’ (as in the above tables) means the control technology will be installed for the first time.
TABLE 17—SUMMARY OF EPA’S DAVE JOHNSTON UNIT 2 NOX REASONABLE PROGRESS ANALYSIS
Emission rate
(lb/MMBtu;
annual
average)
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Control technology
LNBs with OFA .........................................................................
LNBs with OFA and SNCR .......................................................
LNBs with OFA and SCR .........................................................
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0.20
0.15
0.05
Fmt 4701
Emission
reduction
(tpy)
Annualized
costs
1,180
1,425
1,916
Sfmt 4700
Average cost
effectiveness
($/ton)
Incremental
cost effectiveness
($/ton)
Visibility improvement
(delta
deciview for
the maximum
98th percentile
impact at Wind
Cave National
Park)
$1,221
1,638
3,673
........................
3,645
9,588
0.11
0.14
0.18
$1,441,146
2,335,022
7,037,969
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B. Changes to Our Proposed
Determinations
1. Dave Johnston Unit 3
We proposed to require PacifiCorp
Dave Johnston Unit 3 to meet a FIP
emission limit of 0.07 lb/MMBtu (30day rolling average) for NOX BART
(assumes the installation of LNBs/OFA
plus SCR). Based on our revised costs of
compliance and visibility impacts, we
would still conclude that NOX BART is
an emission limit of 0.07 lb/MMBtu (30day rolling average). PacifiCorp
submitted comments on our proposed
rulemaking on August 26, 2013. In those
comments, PacifiCorp indicated in
various places (e.g., page 37) that
instead of installing SCR, it would shut
down Dave Johnston Unit 3 in 2027.
Our regulatory language now provides
PacifiCorp two alternative paths to
compliance with the FIP. The first path
includes a requirement for Dave
Johnston Unit 3 to cease operation by
December 31, 2027. For this path, we
are requiring Dave Johnston Unit 3 to
meet a FIP limit of 0.28 lb/MMBtu (30day rolling average) no later than five
years after the date of our final action.
This emission limit assumes the
installation of LNBs/OFA. The second
compliance path gives PacifiCorp the
option to instead meet a 0.07 lb/MMBtu
emission limit (assumes installation of
SCR) within five years of our final
action with no requirement for shut
down.
EPA met with PacifiCorp on October
31, 2013, to clarify the comments
submitted by PacifiCorp (see October
31, 2013 memo to docket). Specifically,
EPA asked if, in lieu of a requirement
for SCR, PacifiCorp was asking for EPA
to include an enforceable requirement
in the FIP for Dave Johnston Unit 3 to
shut down in 2027, and for EPA to make
a BART determination based on that
limited remaining useful life. PacifiCorp
confirmed that it did want EPA to
include an enforceable requirement in
the FIP for PacifiCorp to shut down
Dave Johnston Unit 3 by December 31,
2027, and to make a BART
determination accordingly. As detailed
in the following section, we determined
that if the unit shuts down by December
31, 2027, SCR would no longer be NOX
BART.
Generally, EPA does not interpret the
regional haze rule to provide us with
authority to make a BART
determination that requires the
shutdown of a source. In other states,
we have approved state-adopted
requirements for the shutdown of a
source, which have usually been
negotiated between the source operator
and the state, and we have accordingly
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approved BART determinations that
took into account the resulting shorter
useful life of the affected source. In the
case of Dave Johnson Unit 3, the State
has not submitted a SIP revision to
require the shutdown that PacifiCorp
intends to implement, so there is no
enforceable shutdown commitment that
we can approve. We believe that
without an enforceable requirement for
the shutdown, we cannot make a BART
determination that reflects the shorter
planned useful life of the unit.
Therefore, we are incorporating the
shutdown requirement into one of the
two compliance paths available to
PacifiCorp, in order to allow it to only
be required to install and maintain the
less expensive LNBs/OFA emission
controls rather than the more expensive
SCR controls. We welcome a SIP
revision that would make the shutdown
requirement State law, and we would
withdraw the shutdown requirement
from the SIP upon approving such a SIP
revision.
2. Dave Johnston Unit 4
We proposed to require PacifiCorp
Dave Johnston Unit 4 to meet a FIP
emission limit of 0.12 lb/MMBtu (30day rolling average) for NOX BART
(assuming the installation of LNBs/OFA
with SNCR). Based on our revised costs
of compliance and visibility impacts, we
no longer conclude that NOX BART is
an emission limit of 0.12 lb/MMBtu (30day rolling average). Based on our new
cost and visibility improvement
numbers, we conclude that NOX BART
is represented by the SIP emission limit
of 0.15 lb/MMBtu (30-day rolling
average) for this unit. This emission
limit assumes the installation of LNBs/
OFA. As such, we are approving
Wyoming’s NOX BART determination
for Dave Johnston Unit 4.
3. Naughton Units 1 and 2
We proposed to require PacifiCorp
Naughton Units 1 and 2 to meet a FIP
emission limit of 0.07 lb/MMBtu (30day rolling average) for NOX BART
(assuming the installation of LNBs/OFA
with SCR). As detailed in the next
section, based on our revised costs of
compliance and visibility impacts, we
no longer conclude that NOX BART is
an emission limit of 0.07 lb/MMBtu (30day rolling average). Based on our new
cost and visibility improvement
numbers, we conclude that NOX BART
is represented by the SIP emission limit
of 0.26 lb/MMBtu (30-day rolling
average) for each unit. This emission
limit assumes the installation of LNBs/
OFA. As such, we are approving
Wyoming’s NOX BART determination
for Naughton Units 1 and 2.
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Sfmt 4700
5045
4. Naughton Unit 3
We proposed to approve the State’s
NOX BART determination for Naughton
Unit 3, which was an emission limit of
0.07 lb/MMBtu (30-day rolling average)
(assumes the installation of LNBs/OFA
with SCR). PacifiCorp submitted
comments on our proposed rulemaking
on August 26, 2013. In those comments,
PacifiCorp indicated (page 72) that
instead of installing SCR as required by
the SIP, it plans to convert Naughton
Unit 3 to natural gas in 2018 without
installation of any post-combustion
control of NOX emissions. Conversion to
natural gas in this manner can be
expected to result in NOX emissions that
are higher than the 0.07 lb/MMBtu limit
in the SIP combined with much lower
SO2 and PM emissions, with a
substantially lower overall remaining
impact on visibility. On July 5, 2013,
Wyoming issued Air Quality permit
MD–14506 to PacifiCorp that reflects the
conversion of Naughton Unit 3 to
natural gas in June of 2018. EPA met
with PacifiCorp on October 31, 2013, to
clarify the comments submitted by
PacifiCorp (see October 31, 2013 memo
to docket). PacifiCorp requested that
EPA include in its final action the
emission limits for SO2, PM, and NOX
that the State had in its permit MD–
14506 that it issued to PacifiCorp. EPA
supports PacifiCorp’s conversion of
Naughton Unit 3 to natural gas.
However, we have the authority and
obligation to take action on the SIP as
submitted by the State, and there is no
basis to disapprove the SIP. Since we
are approving the SIP, we do not have
authority to impose FIP limits even if
independently requested by a source.
Therefore, we cannot use the FIP to
relieve Naughton Unit 3 of the
obligation to achieve the 0.07 lb/MMBtu
NOX emission limit in the SIP nor to
impose emission limits for SO2 and PM
that reflect the planned conversion to
natural gas. Under the terms of the SIP,
the compliance deadlines for the
emission limits in the SIP for Naughton
Unit 3 do not become effective until five
years after our final action. We
understand that Wyoming intends to
submit a revision to their regional haze
SIP for Naughton Unit 3 that reflects the
BART NOX emission limits in its permit
MD–14506 as soon as practicable. EPA
intends to act on this SIP revision in an
expedited timeframe to reflect the
conversion of Naughton Unit 3 to
natural gas and a revised BART NOX
limit. In our final action we are
approving Wyoming’s NOX BART
determination for Naughton Unit 3. Our
regulatory language reflects the
following emission limit for Naughton
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Unit 3 for NOX: 0.07 lb/MMBtu (30-day
rolling average).
mstockstill on DSK4VPTVN1PROD with RULES2
5. Wyodak
We proposed to require PacifiCorp
Wyodak Unit 1 to meet a FIP emission
limit of 0.17 lb/MMBtu (30-day rolling
average) for NOX BART (assuming the
installation of LNBs/OFA with SNCR).
Based on our revised costs of
compliance and visibility impacts, as
well as comments received during the
public comment period (see section V),
we no longer conclude that NOX BART
is an emission limit of 0.17 lb/MMBtu
(30-day rolling average). Based on our
new cost and visibility improvement
numbers, we conclude that NOX BART
is a FIP emission limit of 0.07 lb/
MMBtu (30-day rolling average) for this
unit. This emission limit assumes the
installation of LNBs/OFA with SCR. As
detailed in the next section, based on
our weighing of the five factors, we find
that the average cost-effectiveness of
SCR ($4,036/ton) and the incremental
cost-effectiveness ($6,233/ton),
combined with a visibility improvement
of 0.61 deciviews at the most impacted
Class I area, makes the selection of SCR
for BART reasonable.
6. Jim Bridger
In our proposal, we proposed to
approve the State’s NOX BART and LTS
determinations for Jim Bridger Units 1
and 2. The State’s BART determination
required each unit to meet an emissions
limit of 0.26 lb/MMBtu (30-day rolling
average) within five years of our
approval of the SIP, based on new LNB
plus OFA. The LTS determination
required each unit to meet an emission
limit of 0.07 lb/MMBtu (30-day rolling
average) by December 31, 2022, and
December 31, 2021, respectively. EPA
proposed to approve these compliance
dates for numerous reasons as discussed
in detail in our proposed rulemaking. 78
FR 34755. We also proposed an
alternative FIP BART determination that
would require Jim Bridger Units 1 and
2 to meet an emission limit of 0.07 lb/
MMBtu (30-day rolling average) within
five years of our final rulemaking. 78 FR
34780. We are finalizing our proposed
approval of the State’s BART and LTS
determinations for Jim Bridger Units 1
and 2, although the reasons for our final
action on Jim Bridger Units 1 and 2 have
changed from our proposed action.
In our proposed rulemaking, we
stated:
EPA is proposing to determine that BART
for all units at Jim Bridger would be SCR if
the units were considered individually,
based on the five factors, without regard for
the controls being required at other units in
the PacifiCorp system. However, when the
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cost of BART controls at other PacifiCorp
owned EGUs is considered as part of the cost
factor for the Jim Bridger Units, EPA is
proposing that Wyoming’s determination that
NOX BART for these units is new LNB plus
OFA for is reasonable. Considering costs
broadly, it would be unreasonable to require
any further retrofits at this source within five
years of our final action. We note that the
CAA establishes five years at the longest
period that can be allowed for compliance
with BART emission limits.’’ 78 FR 34756.
However, as discussed in detail in section
V.D.2 below, we do not think PacifiCorp has
presented ample evidence to show that it
would be unreasonable or not feasible for
them to install numerous SCRs within the
five year BART period. Nonetheless, we are
approving the State’s BART determination
and LTS for Jim Bridger Units 1 and 2 based
on our consideration of the five factors, as
detailed in the next section.
We are approving the State’s SIP
requirement that Jim Bridger Units 1
and 2 meet an emission limit of 0.07 lb/
MMBtu (30-day rolling average) by 2022
and 2021, respectively. We are also
approving the State’s BART
determination that requires Jim Bridger
Units 1 and 2 to meet a NOX emission
limit of 0.26 lb/MMBtu (30-day rolling
average) within five years of our final
action.
For Jim Bridger Units 3 and 4 we
proposed to approve the SIP with regard
to the State’s determination that the
appropriate level of NOX control for
Units 3 and 4 for purposes of reasonable
progress is the SCR-based emission limit
in the SIP of 0.07 lb/MMBtu, with
compliance dates of December 31, 2015
for Unit 3 and December 31, 2016 for
Unit 4. In our proposal we noted that
since the State is requiring PacifiCorp to
install the LTS controls within the
timeline that BART controls would have
to be installed pursuant to 40 CFR
51.308(e)(iv), we proposed to approve
the State’s compliance schedule and
emission limit of 0.07 lb/MMBtu for Jim
Bridger Units 3 and 4 as meeting the
BART requirements.
We are finalizing our proposed
approval of the State’s BART and LTS
determinations for Jim Bridger Units 3
and 4, although, similar to Units 1 and
2, the reasons for our final action on
Units 3 and 4 have changed from our
proposed action.
7. Dave Johnston Units 1 and 2
We proposed to require PacifiCorp
Dave Johnston Units 1 and 2 to meet a
FIP emission limit of 0.22 lb/MMBtu
(30-day rolling average) for NOX under
reasonable progress (assuming the
installation of LNBs/OFA). As detailed
in the next section, based on our revised
costs and visibility impacts, we no
longer conclude that an emission limit
of 0.22 lb/MMBtu (30-day rolling
PO 00000
Frm 00016
Fmt 4701
Sfmt 4700
average) is warranted. We are approving
Wyoming’s NOX reasonable progress
determinations for Dave Johnston Units
1 and 2 (i.e., no controls).
IV. Basis for Our Final Action
We have fully considered all
significant comments on our proposal
and have concluded that no changes
from our proposal other than those
discussed in detail above are warranted.
Our action is based on an evaluation of
Wyoming’s regional haze SIP against the
regional haze requirements at 40 CFR
51.300–51.309 and CAA sections 169A
and 169B. All general SIP requirements
contained in CAA section 110, other
provisions of the CAA, and our
regulations applicable to this action
were also evaluated. The purpose of this
action is to ensure compliance with
these requirements. Our authority for
action on Wyoming’s SIP submittal is
based on CAA section 110(k). Our
authority to promulgate a FIP is based
on CAA section 110(c).
In our proposal, EPA asked interested
parties to provide additional
information on both our evaluation of
the BART factors and our proposed
determinations. 78 FR 38745. We
provided notice that any supplemental
information we received could lead us
to select BART control technologies or
compliance deadlines that differed from
our proposal. In response to this
request, we received extensive
comments on the visibility modeling
and cost estimates that we provided in
the proposal for NOX BART control
technologies. As a result of these
comments, we have revised our
visibility modeling and cost estimates.
The details of these changes and our
reasons for making them are provided
elsewhere in this document and in our
responses to the comments. Based on
these changes, we have reassessed our
proposed action on the State’s NOX
BART determinations for each of the
subject-to-BART sources by reevaluating the five statutory factors.16
We have also reassessed our proposed
action on the State’s NOX reasonable
progress determination for Dave
Johnston Units 1 and 2. In this section,
we describe in detail our reassessment
of the statutory factors for these sources
based on our revised visibility modeling
and cost estimates. For two sources—
Jim Bridger and Wyodak—we also
received additional comments,
explained below, that caused us to
16 We are finalizing our proposed approval of the
State’s PM BART determinations. We did not
receive any adverse comments that were sufficient
to convince us that reexamination of the State’s
control costs was warranted.
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reconsider certain aspects of our
decision for those sources.
EPA notes that, in considering the
visibility improvements reflected in our
revised modeling, EPA interprets the
BART Guidelines to require
consideration of the visibility
improvement from BART applied to the
entire BART-eligible source. The BART
Guidelines explain that, ‘‘[i]f the
emissions from the list of emissions
units at a stationary source exceed a
potential to emit of 250 tons per year for
any visibility-impairing pollutant, then
that collection of emissions units is a
BART-eligible source.’’ In other words,
the BART-eligible source (the list of
BART emissions units at a source) is the
collection of units for which one must
make a BART determination. The BART
Guidelines state ‘‘you must conduct a
visibility improvement determination
for the source(s) as part of the BART
determination.’’ This requires
consideration of the visibility
improvement from BART applied to the
BART-eligible source as a whole.
We note, however, that while our
regulations require states and EPA to
assess visibility improvement on a
source-wide basis, they provide
flexibility to also consider unit-specific
visibility improvement in order to more
fully inform the reasonableness of a
BART determination, but that does not
replace the consideration of visibility
benefit from the source (facility) as a
whole. In making the BART
determinations in this final action we
have considered visibility
improvements at the source, and then
also at the units that comprise the
source.
As explained in more detail later in
this decision, we received during the
comment period significant input on
expected costs associated with different
control technologies. We discuss in the
section above and in our response to
comments, the changes we made in
response to comments received on costs
of different control technologies. As
discussed above and in our response to
comments, we have revised our
modeling analysis in light of the input
we received during the public comment
period. This additional information and
analysis result in different costs and
visibility benefits, two of the five BART
factors. In some cases this leads us to
finalize our proposal, and in other cases
to reach a different conclusion.
This decision, which addresses
multiple facilities in a state where
numerous Class 1 areas are impacted to
a greater or lesser degree, illustrates
clearly the case-by-case nature of the
BART determination process. The
interplay among the five factors, and in
particular the cost and visibility factors,
is highly significant and determinative
of the outcome. In considering this
information, as we have noted in prior
decisions, our first assessment is
whether the state’s determination is
reasonable in light of the facts and
consistent with the requirements of the
Clean Air Act and implementing
regulations. If we determine that it is,
even if we might have reached a
different outcome if it were our decision
5047
to make in the first instance, we will
approve the SIP.
Below is a more specific discussion of
our determinations in the final decision.
As stated above more detailed
information on our determinations can
be found in the response to comments
sections of this rulemaking.
A. Laramie River
The State’s regional haze SIP
determined that NOX BART for Laramie
River Units 1, 2, and 3 is new LNB/
SOFA. We proposed to disapprove the
State’s determination because the State
neglected to reasonably assess the costs
of compliance and visibility
improvement in accordance with the
BART Guidelines. 78 FR 34766. After
revising the State’s costs and modeling
and re-evaluating the statutory factors,
we proposed to determine that NOX
BART is LNB/SOFA + SCR, with an
emissions limit of 0.07 lb/MMBtu for
each unit. We sought comment
generally on the BART factors and our
control determinations and indicated
that we could revise our control
determinations depending on any new
information that we received.
As the result of the comments
received on our proposal, we have
further revised our calculation of the
costs of compliance and visibility
modeling. We have considered any
comments on the other BART factors
but we have not changed our assessment
of the other BART factors. The revised
visibility modeling for the most
impacted Class I area (Badlands) is
presented in the following table.
TABLE 18—VISIBILITY MODELING FOR LARAMIE RIVER STATION
Laramie River Station
LNB/SOFA
LNB/SOFA + SNCR
LNB/SOFA + SCR
Unit 1 .....................................................
Unit 2 .....................................................
Unit 3 .....................................................
0.18 deciviews ......................................
0.18 deciviews ......................................
0.18 deciviews ......................................
0.28 deciviews ......................................
0.27 deciviews ......................................
0.27 deciviews ......................................
0.57 deciviews
0.53 deciviews
0.52 deciviews
Total * ..............................................
0.54 deciviews ......................................
0.82 deciviews ......................................
1.62 deciviews
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* The total visibility improvement was estimated as the sum of the visibility improvement from each unit.
We also considered the visibility
improvement at other impacted Class I
areas (Wind Cave, Rawah, and Rocky
Mountain), which range from 0.25 to
0.47 deciviews, 0.26 to 0.43 deciviews,
and 0.23 to 0.44 deciviews, for Units 1,
2, and 3, respectively. Further details
regarding our revised visibility
modeling and cost estimates were
provided in section III.A.
After re-evaluating the BART factors,
we continue to find that LNB/SOFA +
SCR is reasonable as BART and are
therefore finalizing our proposal. The
visibility improvement associated with
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LNB/SOFA + SCR at the most impacted
Class I area is significant on both a
source-wide (1.62 deciviews) and unitspecific (0.52–0.57 deciviews) basis.
The significant visibility improvement
at three other impacted Class I areas also
supports the selection of this option.
Finally, we believe that the incremental
visibility improvement at the most
impacted Class I area of SCR over SNCR
(nearly double in all cases) warrants the
selection of the most stringent control.
In regards to the costs of compliance,
we found that the revised average and
incremental cost-effectiveness of LNB/
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Fmt 4701
Sfmt 4700
SOFA + SCR is in line with what we
have found to be acceptable in our other
FIPs. The average cost-effectiveness per
unit ranges from $4,375 to $4,461/ton,
while the incremental cost-effectiveness
ranges from $5,449 to $5,871/ton. We
believe that these costs are reasonable,
especially in light of the significant
visibility improvement associated with
LNB/SOFA + SCR. As a result, we are
finalizing our proposed disapproval of
the State’s NOX BART determination for
Laramie River Station and finalizing our
proposed FIP that includes a NOX BART
determination of LNB/SOFA + SCR,
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with an emission limit of 0.07 lb/
MMBtu (30-day rolling average).
B. Jim Bridger
The State’s regional haze SIP
determined that NOX BART for Jim
Bridger Units 1–4 is new LNBs with
SOFA. The State also determined that
SCR should be installed at each unit as
part of the State’s long-term strategy to
achieve reasonable progress at several
Class I areas, and set compliance dates
of December 31, 2022, December 31,
2021, December 31, 2015, and December
31, 2016 for Units 1–4, respectively.
In our proposal, we indicated that the
State had neglected to reasonably assess
the costs of compliance and visibility
improvement for Jim Bridger in
accordance with the BART Guidelines.
We nonetheless proposed to approve the
State’s BART and reasonable progress
determinations for Units 3 and 4
because the compliance deadlines to
install SCR on these units were
sufficient to meet the requirements of
BART. We are now finalizing our
proposed action for Units 3 and 4.
We also proposed to approve the
State’s BART and reasonable progress
determinations for Units 1 and 2, but on
a different basis. There, we indicated
that given the number of SCR retrofits
PacifiCorp had to perform in Wyoming
and in other states, it might not be
affordable for PacifiCorp to install two
additional SCRs on Jim Bridger Units 1
and 2 within the five-year BART
compliance period. We requested
additional information from
commenters regarding whether the
affordability provisions of the BART
Guidelines should be applied to Units 1
and 2. In the alternative, we proposed
to find that NOX BART for Units 1 and
2 was an emission limit of 0.07 lb/
MMBtu (30-day rolling average) based
on the installation of LNB/SOFA + SCR
with a compliance deadline of five
years. Under this scenario, we
acknowledged that the costeffectiveness of LNB/SOFA + SCR at
Units 1 and 2 was within the range of
what EPA and the State itself had found
reasonable in other BART
determinations. We also considered the
significant visibility improvement
demonstrated by the State’s modeling to
warrant LNB/SOFA + SCR as BART.
Finally, we sought comment generally
on the BART factors and our control
determinations and indicated that we
could revise our control determinations
depending on any new information that
we received.
In response to our proposal, we
received both supportive and adverse
comments regarding whether the
affordability provisions of the BART
Guidelines should apply to Units 1 and
2. As explained in more detail in our
responses to these comments, we agree
that PacifiCorp did not make a sufficient
showing that it could not afford to
install LNB/SOFA + SCR on Units 1 and
2 within the five-year compliance
period. Nevertheless, we also received
new information regarding the costs of
compliance and visibility benefits
associated with Jim Bridger and have
revised our cost estimates and visibility
modeling for all four units accordingly.
We have considered any comments on
the other BART factors but we have not
changed our assessment of the other
BART factors.
The revised visibility modeling for the
most impacted Class I area (Bridger) is
presented in the following table (with
straight font representing modeled
results using an ammonia background
based on a monitored monthly varying
concentration, italicized font
representing modeled results using
IWAQM default 0.5 ppb background
ammonia).17
TABLE 19—VISIBILITY MODELING FOR JIM BRIDGER
Jim Bridger
Unit
Unit
Unit
Unit
1
2
3
4
LNB/SOFA
.................................................
.................................................
.................................................
.................................................
Total * .........................................
0.17/0.23
0.16/0.21
0.14/0.19
0.25/0.23
deciviews
deciviews
deciviews
deciviews
LNB/SOFA + SNCR
..........................
..........................
..........................
..........................
0.72/0.86 deciviews ..........................
0.20/0.27
0.19/0.25
0.17/0.23
0.30/0.28
deciviews
deciviews
deciviews
deciviews
..........................
..........................
..........................
..........................
0.86/1.03 deciviews ..........................
LNB/SOFA + SCR
0.27/0.37
0.27/0.36
0.26/0.35
0.45/0.42
deciviews
deciviews
deciviews
deciviews
1.25/1.5 deciviews
mstockstill on DSK4VPTVN1PROD with RULES2
* The total visibility improvement was estimated as the sum of the visibility improvement from each unit.
We also considered the visibility
improvements at other impacted Class I
areas (Bridger, Fitzpatrick, Rawah,
Rocky Mountain, Grand Teton, Teton,
Washakie, and Yellowstone), which
range from 0.26 to 0.91 deciviews, 0.26
to 0.89 deciviews, 0.24 to 0.87
deciviews, and 0.27 to 1.0 deciviews, for
Units 1–4, respectively. Further details
regarding our revised visibility
modeling and cost estimates are
provided in section III.A.
After re-evaluating the BART factors,
we are approving the State’s
determination that LNB/SOFA is NOX
BART for Units 1–4. The visibility
improvement associated with LNB/
SOFA + SCR at the most impacted Class
I area is significant on a source-wide
basis (1.25 to 1.5 deciviews). The fact
that Jim Bridger Station affects a number
of other Class I areas, which also would
see appreciable visibility improvement
with the installation of LNB/SOFA +
SCR, also weighs in favor of selecting
this option as BART. The unit-specific
benefits for Units 1 and 2 are somewhat
more modest (0.27–0.37 deciviews),
however, especially considering the low
incremental improvement over SNCR
(0.07–0.11 deciviews). The incremental
visibility improvement of SNCR over
LNB/SOFA is even smaller (0.03–0.04
deciviews).
In regards to the costs of compliance,
we found that the revised average costeffectiveness of LNB/SOFA + SCR is in
line with what we have found to be
acceptable in our other FIPs. The
average cost-effectiveness is $4,088 and
$4,461/ton at Units 1 and 2,
respectively. The incremental costeffectiveness, on the other hand, is on
the high end of what we have found to
be reasonable in our other FIPs. The
incremental cost-effectiveness is $7,477
and $8,986/ ton at Units 1 and 2,
respectively.
Ultimately however, while we believe
that these costs and visibility
improvements could potentially justify
LNB/SOFA + SCR as BART, because
this is a close call and because the State
has chosen to require SCR as a
reasonable progress control, we believe
deference to the State is appropriate in
this instance. We are therefore finalizing
17 Air Quality Modeling Protocol: Wyoming
Regional Haze Federal Implementation Plan, U.S.
EPA, January, 2014.
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our approval of the State’s
determination to require SCR at Jim
Bridger Units 1–4, with an emission
limit of 0.07 lb/MMBtu (30-day rolling
average), as part of its long-term
strategy. We are also finalizing our
approval of the compliance dates of
December 31, 2022, December 31, 2021,
December 31, 2015, and December 31,
2016 for Units 1- 4 respectively.
C. Dave Johnston Units 3 and 4
The State’s regional haze SIP
determined that NOX BART for Dave
Johnston Units 3 and 4 is LNB/OFA. We
proposed to disapprove the State’s
determination because the State
neglected to reasonably assess the costs
of compliance and visibility
improvement in accordance with the
BART Guidelines. 78 FR 34778. After
revising the State’s costs and modeling
and re-evaluating the statutory factors,
we proposed to determine that NOX
BART for Unit 3 is LNB/SOFA + SCR,
with an emission limit of 0.07 lb/
MMBtu (30-day rolling average). We
proposed that NOX BART for Unit 4 is
LNB/SOFA + SNCR, with an emission
limit of 0.12 lb/ MMBtu. We sought
comment generally on the BART factors
5049
and our control determinations and
indicated that we could revise our
control determinations depending on
any new information that we received.
As the result of the comments
received on our proposal, we have
further revised our calculation of the
costs of compliance and visibility
modeling. We have considered any
comments on the other BART factors
but we have not changed our assessment
of the other BART factors. The revised
visibility modeling for the most
impacted Class I area (Wind Cave) is
presented in the following table.
TABLE 20—VISIBILITY MODELING FOR DAVE JOHNSTON (BART UNITS)
Dave Johnston
LNB/OFA
LNB/OFA + SNCR
LNB/OFA + SCR
Unit 3 .....................................................
Unit 4 .....................................................
0.33 deciviews ......................................
0.41 deciviews ......................................
0.39 deciviews ......................................
0.46 deciviews ......................................
0.51 deciviews
0.57 deciviews
Total * ..............................................
0.74 deciviews ......................................
0.85 deciviews ......................................
1.08 deciviews
mstockstill on DSK4VPTVN1PROD with RULES2
* The total visibility improvement was estimated as the sum of the visibility improvement from each unit.
We also considered the visibility
improvement at other impacted Class I
areas (Badlands, Mt Zirkel, Rawah, and
Rocky Mountain), which range from
0.20 to 0.47 deciviews and 0.24 to 0.55
deciviews, for Units 3 and 4,
respectively. Further details regarding
our revised visibility modeling and cost
estimates were provided in section III.A.
After re-evaluating the BART factors,
we no longer believe that LNB/OFA +
SNCR is NOX BART for Dave Johnston
Unit 4. As we explained in the proposal,
the incremental cost-effectiveness of
LNB/OFA + SCR was and continues to
be excessive ($13,312), so we have
eliminated this control option. While
the revised average and incremental
costs of LNB/OFA + SNCR continue to
be reasonable, the incremental visibility
improvement of SNCR over LNB/OFA is
now only 0.05 deciviews. In light of this
new visibility information, we believe
that the State’s determination that LNB/
OFA is NOX BART for Unit 4 was
reasonable and are approving it
accordingly.
In regards to Dave Johnston Unit 3, we
continue to believe that LNB/OFA +
SCR is NOX BART. The visibility
improvement associated with LNB/
SOFA + SCR at the most impacted Class
I area is significant (0.51 deciviews).
The visibility improvement at several
other impacted Class I areas also
supports the selection of this option.
Finally, we do not believe that the
incremental visibility improvement at
the most impacted Class I area of SCR
over SNCR (0.12 deciviews) is
sufficiently insignificant to warrant the
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elimination of the most stringent control
in this instance.
In regards to the costs of compliance,
we found that the revised average and
incremental cost-effectiveness of LNB/
SOFA + SCR is in line with what we
have found to be acceptable in our other
FIPs. The average cost-effectiveness is
$2,635/ton, while the incremental costeffectiveness is $7,583/ton. We believe
that these costs are reasonable,
especially in light of the significant
visibility improvement associated with
LNB/SOFA + SCR.
In response to other comments we
received, we also considered an
alternative BART analysis for Unit 3
based on PacifiCorp’s commitment to
retire Unit 3 by 2027 in lieu of installing
SCR. Using a 9-year remaining useful
life as the amortization period for Unit
3, the incremental cost-effectiveness of
LNB/OFA + SCR becomes excessive
($11,781). Furthermore, the incremental
visibility improvement at the most
impacted Class I area from use of LNB/
OFA to use of LNB/OFA+ SNCR is only
0.06 deciviews. Thus, taking all five
factors into account, including the
remaining useful life of nine years, we
conclude that the NOX BART would be
LNB/OFA in this scenario.
To provide flexibility, we are
finalizing both scenarios in a FIP for
Dave Johnston Unit 3. Under the first
scenario, we are finalizing a NOX BART
determination of LNB/OFA + SCR, with
an emission limit of 0.07 lbs/ MMBtu
(30-day rolling average). Under the
alternative scenario, based on a
commitment to retire Unit 3 by 2027, we
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are finalizing a NOX BART
determination of LNB/OFA, with an
emission limit of 0.28 lbs/ MMBtu (30day rolling average).
D. Naughton
The State’s regional haze SIP
determined that NOX BART is new
LNB/OFA for Naughton Units 1 and 2
and LNB/OFA + SCR for Naughton Unit
3. We proposed to approve the State’s
determination for Unit 3, but proposed
to disapprove the State’s determination
for Units 1 and 2 because the State
neglected to reasonably assess the costs
of compliance and visibility
improvement in accordance with the
BART Guidelines. 78 FR 34748. After
revising the State’s costs and modeling
and re-evaluating the statutory factors,
we proposed to determine that NOX
BART for Units 1 and 2 is LNB/SOFA
+ SCR, with an emissions limit of 0.07
lb/MMBtu for each unit. We sought
comment generally on the BART factors
and our control determinations and
indicated that we could revise our
control determinations depending on
any new information that we received.
As the result of the comments
received on our proposal, we have
further revised our calculation of the
costs of compliance and visibility
modeling. We have considered any
comments on the other BART factors
but we have not changed our assessment
of the other BART factors. The revised
visibility modeling for the most
impacted Class I area (Bridger) is
presented in the following table (with
straight font representing modeled
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results using an ammonia background
based on a monitored monthly varying
concentration, italicized font
representing modeled results using
IWAQM default 0.5 ppb background
ammonia).
TABLE 21—VISIBILITY MODELING FOR NAUGHTON
Naughton
LNB/OFA
LNB/OFA + SNCR
LNB/OFA + SCR
Unit 1 .............................................
Unit 2 .............................................
Unit 3 .............................................
0.22/0.26 deciviews ......................
0.28/0.32 deciviews ......................
0.05/0.07 deciviews ......................
0.26/0.30 deciviews ......................
0.34/0.38 deciviews ......................
0.20/0.29 deciviews ......................
0.33/0.39 deciviews.
0.42/0.46 deciviews.
0.49/0.60 deciviews.
Total * ......................................
0.55/0.65 deciviews ......................
0.80/0.97 deciviews ......................
1.24/1.45 deciviews
* The total visibility improvement was estimated as the sum of the visibility improvement from each unit.
We also considered the visibility
improvement at other impacted Class I
areas (Fitzpatrick, North Absaroka,
Washakie, Teton, Grand Teton, and
Yellowstone), which range from 0.10 to
0.30 deciviews, 0.08 to 0.42 deciviews,
and 0.13 to 0.49 deciviews, for Units 1,
2, and 3, respectively. Further details
regarding our revised visibility
modeling and cost estimates were
provided in section III.A.
After re-evaluating the BART factors,
we no longer believe that LNB/OFA +
SCR is NOX BART for Naughton Units
1 and 2. The visibility improvement
associated with LNB/SOFA + SCR at the
most impacted Class I area remains
significant on a source-wide basis (1.24–
1.45 deciviews) but more modest on a
unit-specific basis (0.33–0.46
deciviews). The visibility improvement
at six other impacted Class I areas
continues to support the selection of
this option as well. In regards to the
costs of compliance, however, we found
that while the revised average costeffectiveness values for LNB/OFA + SCR
were acceptable, the revised
incremental cost-effectiveness values
were beyond the upper end of the range
(higher even than Jim Bridger) of what
we have found to be acceptable in our
other FIPs. For Units 1 and 2,
respectively, the average costeffectiveness per unit is $3,109 and
$2,566/ ton, while the incremental costeffectiveness is $10,384 and $8,440/ ton.
Consequently, we believe that it was not
unreasonable for the State to reject LNB/
OFA + SCR as BART. Furthermore, we
cannot say the State acted unreasonably
in rejecting LNB/OFA + SNCR at Units
1 and 2 because the incremental
visibility improvement of SNCR over
LNB/OFA, while possibly appreciable,
is very low at just 0.10 deciviews across
both units. Therefore, based on our
analysis we believe that the State’s
determination that LNB/OFA is NOX
BART for Units 1 and 2, with an
emission limit of 0.28 lbs/ MMBtu, was
ultimately reasonable and are approving
it accordingly.
E. Wyodak
The State’s regional haze SIP
determined that NOX BART for Wyodak
Unit 1 is new LNBs with OFA. We
proposed to disapprove the State’s
determination because the State
neglected to reasonably assess the costs
of compliance and visibility
improvement in accordance with the
BART Guidelines. 78 FR 34784–34785.
As a result, we also proposed a FIP for
NOX BART. After considering the BART
factors, we noted that the costeffectiveness and visibility
improvement of the most stringent
control option, LNB/OFA + SCR, were
within the range of values that EPA had
found reasonable in other FIPs.
However, we proposed not to require
LNB/OFA + SCR as NOX BART for
Wyodak Unit 1. Instead, we proposed to
require LNB/OFA + SNCR based on the
reasoning that the cumulative visibility
improvement of SCR across all Class I
areas was low when compared to the
cumulative visibility improvement
associated with SCR at Dave Johnston
Unit 3, Laramie River Units 1–3, and
Naughton Units 1 and 2. We sought
comment generally on the BART factors
and our control determinations and
indicated that we could revise our
control determinations depending on
any new information that we received.
Based on our discussion of LNB/OFA +
SCR at Wyodak, that control option was
among those that we invited comment
on.
In response to our proposal for
Wyodak, we received comments that
cumulative visibility improvement
should not be used as a basis to reject
a control option that has already been
deemed reasonable based on visibility
improvement at the most impacted
Class I area. The commenters pointed
out that such an approach would have
the illogical effect of allowing an added
benefit (visibility improvement at
multiple Class I areas) to weigh in favor
of less stringent controls. We agree with
this criticism and want to make clear
today that where a control is warranted
as BART based on the costs of controls
and visibility benefits at the most
impacted area alone, cumulative
visibility benefits can only strengthen
the case for that control, not suggest that
it is unwarranted. Similarly, where a
control might not be warranted as BART
based on the improvement at a single
Class I area, significant cumulative
benefits are an additional consideration
that could warrant that the control be
selected as BART.
In addition, we have further revised
our calculation of the costs of
compliance and visibility modeling for
Wyodak Unit 1. We have not changed
our assessment of the other BART
factors. The revised visibility modeling
for the most impacted Class I area (Wind
Cave) is presented in the following
table.
TABLE 22—VISIBILITY MODELING FOR WYODAK
mstockstill on DSK4VPTVN1PROD with RULES2
Wyodak
LNB/SOFA
LNB/SOFA + SNCR
Unit 1 .....................................................
0.21 deciviews ......................................
0.32 deciviews ......................................
We also considered the visibility
improvement at a second impacted
Class I area (Badlands), which is a
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maximum of 0.38 deciviews for LNB/
SOFA + SCR. Further details regarding
our revised visibility modeling and cost
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LNB/SOFA + SCR
0.61 deciviews.
estimates were provided in the previous
section.
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After re-evaluating the BART factors
and dismissing our earlier rationale for
rejecting an otherwise reasonable
control, we find that LNB/SOFA + SCR
is reasonable as BART. As the BARTeligible source in this case is a single
unit, the source-wide and unit-specific
visibility improvements associated with
the various control options are the same.
The visibility improvement associated
with LNB/SOFA + SCR at the most
impacted Class I area (0.61 deciviews) is
significant. There is also a more modest
visibility improvement (0.38 deciviews)
at a second impacted Class I area that
supports the selection of this option.
Finally, we believe that the incremental
visibility improvement at the most
impacted Class I area of SCR over SNCR
(nearly double) warrants the selection of
the most stringent control.
In regards to the costs of compliance,
we found that the revised average and
incremental cost-effectiveness of LNB/
SOFA + SCR is in line with what we
have found to be acceptable in our other
FIPs. The average cost-effectiveness is
$4,036/ton, while the incremental costeffectiveness of SCR over SNCR is
$6,223/ton. We believe that these costs
are reasonable, especially in light of the
significant visibility improvement
associated with LNB/SOFA + SCR at
Wind Cave. As a result, we are
finalizing our proposed disapproval of
the State’s NOX BART determination for
Wyodak Unit 1. Additionally, after
carefully considering adverse
comments, we have decided not to
finalize our proposed NOX
determination of LNB/SOFA + SNCR,
but rather are finalizing a NOX BART
determination of LNB/SOFA + SCR,
with an emission limit of 0.07 lb/
MMBtu (30-day rolling average).
F. Dave Johnston Units 1 and 2
(Reasonable Progress)
We proposed to disapprove the State’s
determination to not impose LNB/OFA
as reasonable progress controls for NOX
at Dave Johnston Units 1 and 2. Based
on our original cost estimates and
visibility modeling, we also proposed to
require PacifiCorp Dave Johnston Units
1 and 2 to meet a FIP emission limit of
0.22 lb/MMBtu (30-day rolling average)
(assuming the installation of LNB/OFA).
Based on our revised cost estimates and
visibility modeling that we developed in
response to comments, however, we no
longer conclude that reasonable
progress controls are warranted this
planning period. While we continue to
disagree with the State’s reasoning for
not imposing controls (as detailed in our
response to comments), we are not
prepared to say the State’s ultimate
decision was unreasonable. In
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evaluating the four reasonable progress
factors and the visibility improvement
associated with potential controls, we
found that the average and incremental
cost-effectiveness of LNB/OFA ($990/
ton and $1,221/ton, respectively), while
reasonable if viewed in isolation, was
not necessarily justified this planning
period in light of the relatively modest
visibility improvement predicted by the
revised modeling (0.11 deciviews—0.12
deciviews at the most impacted Class I
area). As a result, we are approving the
State’s reasonable progress
determination of no new controls for
Dave Johnston Units 1 and 2, but we
expect the State to revisit the issue
during the next planning period.
V. Issues Raised by Commenters and
EPA’s Responses
A. Legal Issues
1. EPA Authority and State Discretion
Comment: Multiple commenters
stated that CAA Section 169A and the
Regional Haze Rule (RHR) give the
states the lead in developing their
regional haze SIPs. Some commenters
went further in stating that Wyoming is
given almost complete discretion in
creating its regional haze SIP. These
commenters argued that, because
Wyoming is given such discretion, EPA
lacks the statutory authority to
disapprove the State’s regional haze SIP.
Specifically, some commenters pointed
to the flexibility the State is granted in
developing its BART determinations
and other RHR requirements. The
commenters stated that the CAA
anticipates that EPA will create
guidance and that the states, using their
discretion, will use this guidance to
develop regional haze SIPs. The State of
Wyoming and other parties argued that
each factor in the five-factor analysis
used to make its BART determinations
was appropriately weighed based on the
State’s own discretion. The commenters
therefore argue that EPA has no basis on
which to disapprove the five-factor
analysis and that EPA does not have
authority to reject a state’s BART
determination solely because EPA
would have conducted the analysis in a
different way or reached a different
conclusion. The commenters went on to
say that the State, after considering all
statutory factors, made BART
determinations for all subject-to-BART
sources in a manner consistent with 40
CFR Part 51 Appendix Y, the
established CAA requirements, and the
interests of the State of Wyoming.
Numerous commenters went on to say
that the U.S. Court of Appeals for the
D.C. Circuit has affirmed that EPA’s role
in determining BART is limited and that
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5051
a state’s role is paramount. The court
found that the CAA ‘‘calls for states to
play the lead role in designing and
implementing regional haze programs.’’
Am. Corn Growers Ass’n v. EPA, 291
F.3d 1, 2 (D.C. Cir. 2002). The
commenters stated that the court also
reversed a portion of EPA’s original
RHR because it found that EPA’s
method of analyzing visibility
improvements distorted the statutory
BART factors and was ‘‘inconsistent
with the Act’s provisions giving the
states broad authority over BART
determinations.’’ Id., see also Utility Air
Regulatory Group v. EPA, 471 F.3d
1333, 1336 (D.C. Cir. 2006) (The second
step in a BART determination ‘‘requires
states to determine the particular
technology that an individual source
‘subject to BART’ must install.’’).
The commenters asserted that states
have the primary responsibility for
preventing air pollution under the CAA.
CAA section 101(a)(3), 42 U.S.C.
7401(a)(3). Pursuant to this principle,
states, not EPA, have always had
primary control over decisions to
impose specific emission limits (and
therefore specific pollution control
technologies) for individual facilities.
By congressional design, EPA ‘‘is
relegated . . . to a secondary role in the
process of determining and enforcing
the specific, source-by-source emission
limitations which are necessary [to
meet] national standards.’’ Train v.
NRDC, 421 U.S. 60, 79 (1975). This
basic division of responsibilities
between EPA and the states remained
unchanged when Congress amended the
Act in 1977 and again in 1990. See
Virginia v. EPA, 108 F.3d 1397, 1408–
09 (D.C. Cir. 1997).
Response: Congress crafted the CAA
to provide for states to take the lead in
developing SIPs, but balanced that
decision by requiring EPA to review the
SIPs to determine whether they meet the
requirements of the CAA. EPA’s review
of SIPs is not limited to a ministerial
type of automatic approval of a state’s
decisions. See North Dakota v. EPA, 730
F.3d 750, 760–61 (8th Cir. 2013)
(‘‘Although the CAA grants states the
primary role of determining the
appropriate pollution controls within
their borders, EPA is left with more than
the ministerial task of routinely
approving SIP submissions.’’)
(hereinafter ‘‘North Dakota’’). EPA must
consider not only whether the State
considered the appropriate factors, but
whether the State acted reasonably in
doing so. In undertaking such a review,
EPA does not ‘‘usurp’’ the State’s
authority, but ensures that such
authority is reasonably exercised. EPA
has the authority to issue a FIP either
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when EPA has made a finding that the
state has failed to timely submit a SIP
or when EPA has found a SIP deficient.
Here, EPA has authority on both
grounds, and we have approved as
much of the Wyoming regional haze SIP
as possible, while promulgating a FIP
only to fill the remaining gaps. Our
action today is consistent with the
statute.
Our action does not contradict the
Supreme Court’s decision in Train.
States have significant responsibilities
in the implementation of the CAA and
meeting the requirements of the RHR.
We recognize that states have the
primary responsibility of drafting a SIP
to address the requirements of the
CAA’s visibility program. We also
recognize that we have the
responsibility of ensuring that SIPs,
including regional haze SIPs, conform to
CAA requirements. We cannot approve
a regional haze SIP that fails to address
BART with a reasoned consideration of
the statutory and regulatory
requirements of the CAA and the RHR.
See Oklahoma v. EPA, 723 F.3d 1201,
1207 (10th Cir. 2013) (‘‘We agree with
the EPA that the statute provides the
agency with the power to review
Oklahoma’s BART determination for
these four units.’’) (hereinafter
‘‘Oklahoma’’).
Contrary to the commenters’
assertions, we recognize the State’s
primary responsibility in drafting a SIP.
In fact, we have approved many of the
State’s determinations, including the
entirety of Wyoming’s Section 309
BART alternative for SO2 emissions. We
are disapproving the State’s NOX BART
determinations, as the CAA requires,
because the State neglected to properly
consider the costs of compliance and
the visibility benefits associated with
several of the available control options.
We also disagree that our proposal is
inconsistent with the American Corn
Growers and Utility Air Regulatory
Group decisions. These cases dealt with
EPA’s authority to issue broad
regulations that prescribed how states
must conduct their BART
determinations. They did not address
EPA’s authority to review regional haze
SIPs for compliance with the mandates
of the CAA or EPA’s now finalized
implementing regulations. The Tenth
Circuit, in concluding that EPA had
authority to disapprove a BART
determination that did not follow the
BART Guidelines, stated that the
American Corn Growers opinion ‘‘does
not alter this conclusion.’’ Oklahoma v.
EPA, 723 F.3d 1201, 1208 (10th Cir.
2013).
Because the CAA sets certain
mandatory statutory deadlines and
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provides for citizen suits when the
Administrator fails to perform a
mandatory duty, we are required by the
terms of a consent decree to ensure that
Wyoming’s CAA requirements for
regional haze are finalized by January
10, 2014. Because we have found that
the State’s regional haze SIP did not
satisfy CAA and RHR requirements in
full and because we have previously
found that Wyoming failed to timely
submit its regional haze SIP, we have
not only the authority, but a statutory
duty to promulgate a FIP that meets
those requirements. We have reviewed
this decision in light of other decisions
made by us, as well as decisions made
in other states SIPs. Our action today in
large part approves the regional haze
SIP submitted by Wyoming. Our
disapproval of Wyoming’s NOX BART
and reasonable progress determinations
and imposition of a FIP is not intended
to encroach on State authority. Rather,
our action today is required by the CAA
to ensure that the State has a complete
plan in place to address the CAA’s
visibility requirements.
Comment: The fact that Congress gave
states primacy in making BART
determinations is noteworthy and
related to the fact that the regional haze
program is focused on an aesthetic
benefit, not a public health standard.
Under other sections of the CAA,
primarily those dealing with healthbased standards, Congress directed EPA
to establish standards that do not take
costs into consideration. States then
develop plans to meet those healthbased standards. Under the New Source
Performance Standards program (section
111 of the CAA) and National Emission
Standards for Hazardous Air Pollutants
program (section 112), EPA routinely
establishes specific emission limits for
large industrial sources. The regional
haze program, which deals with an
aesthetic standard, was clearly laid out
by Congress to be different in its
approach, to avoid establishing
emission limits, to give states authority
to decide appropriate controls, and
allow states to weigh the costs against
the benefits.
Response: We do not agree with this
commenter’s characterization of the
regional haze program or the CAA’s
visibility requirements. While it is true
that the goal of CAA sections 169A and
169B is to improve visibility in national
parks and wilderness areas rather than
to prevent adverse human health effects,
Congress structured the program so that
states’ decisions had to be made in the
form of SIPs, which EPA has the
authority to review for compliance with
all CAA requirements. Furthermore,
Congress did not create an approach
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that would allow states to avoid
establishing emission limits. On the
contrary, Congress specifically directed
EPA’s regulations to require states to
devise ‘‘emission limits . . . necessary
to make reasonable progress,’’ CAA
section 169A(b)(2), including the
requirement to establish BART, which
the RHR defines as ‘‘an emission
limitation.’’ 40 CFR 51.301.
Comment: EPA’s actions leave
nothing under the CAA’s framework by
which Wyoming could make an
approvable BART determination. EPA
has overreached and exceeded its
statutory authority by proposing a FIP
that replaces Wyoming’s considered
judgment with EPA’s priorities and
policy choices.
Response: We disagree with this
comment. EPA is not substituting its
judgment for that of the State of
Wyoming or issuing a FIP merely to
advance priorities and policy choices.
Rather, we have determined that
Wyoming did not properly follow the
BART Guidelines or the CCM in
conducting its BART analyses and,
therefore, did not correctly consider the
costs of compliance or the visibility
benefits associated with available
control technologies as the CAA
requires. Consequently, we are
finalizing a FIP in today’s action to
remedy the gaps left by these
inadequacies. We note, however, that
the CAA’s framework provides
Wyoming with the opportunity to
submit a SIP revision at any time that
could replace all or a portion of EPA’s
FIP, and we encourage Wyoming to do
so.
Comment: EPA clearly gave the states
more discretion through rulemaking
when it split the universe of BART
sources impacted by the BART
Guidelines into power plants greater
than 750 megawatts (MW) and all
others. States were merely encouraged
to follow the BART Guidelines for the
smaller BART sources. EPA says in the
preamble ‘‘that states should view the
guidelines as helpful guidance for these
other categories.’’ In saying this, EPA is
affording even more discretion to the
states in making BART determinations
for the smaller BART sources. EPA has
proposed disapproval of Wyoming’s
BART determination and proposed a
FIP for one of these smaller sources, the
Wyodak Unit 1 335 MW power plant.
The State believes that the EPA is again
overreaching in its action by proposing
a FIP for Wyodak Unit 1, where
Wyoming was not even required to
follow the BART Guidelines in arriving
at its BART determination.
Response: We agree that the BART
Guidelines are only mandatory for
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‘‘fossil-fuel fired power plants having a
total generating capacity greater than
750 megawatts.’’ 40 CFR
51.308(e)(1)(ii)(B). However, the fact
that a state may deviate from the
procedures in the BART Guidelines
when selecting BART for smaller EGUs
does not mean that a state has
unfettered discretion to act
unreasonably or inconsistently with the
CAA or the RHR. Ultimately, a state
must still adopt the ‘‘best available
retrofit technology,’’ CAA section
169A(b)(2)B); 40 CFR 51.308(e)(1)(ii)(A),
while reasonably considering the five
statutory factors.
The RHR further defines BART to
mean ‘‘an emission limitation based on
the degree of reduction achievable
through the application of the best
system of continuous emission
reduction for each pollutant which is
emitted by an existing stationary
facility.’’ 40 CFR 51.301 (emphasis
added). We do not interpret this
requirement to allow a state to dismiss
the best system of continuous emission
reduction under the mantle of unlimited
state discretion. As we discuss
elsewhere in this document, Wyoming
erroneously evaluated costs and
visibility benefits when analyzing the
various control options available for
Wyodak, and thereby did not reasonably
consider the statutory factors and select
the best system of control.
Comment: EPA’s RHR gave states the
flexibility to choose alternatives to the
BART process, such as participation in
a trading program. EPA spells out in the
preamble that this ‘‘substantial
flexibility’’ provides the ‘‘states the
ability to choose the least costly and
least burdensome alternative.’’ EPA and
28 states on the east coast took
advantage of this flexibility when it
declared that the cap and trade program
for ozone nonattainment would, for the
most part, satisfy the requirements of
BART. The important point here is that
EPA wanted and pushed for flexible,
cost-savings approaches to address
regional haze. EPA is still pushing for
approval of the Cross States Air
Pollution Rule (CSAPR) as a solution to
regional haze problems on the east
coast.
There appears to be a consistency
issue within the EPA over the
application of flexibility. Wyoming does
not think EPA meant for an approach to
promote costs savings and less
burdensome solutions to be restricted to
one area of the country or certain types
of solutions. However, EPA’s proposal
to partially disapprove Wyoming’s
regional haze SIP and impose more
costly and burdensome FIP
requirements for seven BART units in
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the State of Wyoming appear to be
inconsistent with EPA’s purported
‘‘substantial flexibility.’’ EPA’s failure to
recognize Wyoming’s discretion in these
areas is arbitrary and capricious.
Response: Wyoming had the
opportunity to submit better-than-BART
alternatives in lieu of source-specific
NOX BART determinations. Wyoming
did not do so. Because Wyoming did not
take advantage of the flexibility afforded
by better-than-BART alternatives, we
must review Wyoming’s BART
determinations for compliance with the
applicable requirements of the CAA,
RHR, and BART Guidelines. Our
proposal clearly laid out the bases for
our proposed disapproval of the State’s
NOX BART determinations, and we
have relied on the standards contained
in our regulations and the authority that
Congress granted us to review and
determine whether Wyoming’s regional
haze SIP complied with the minimum
statutory and regulatory requirements.
To the extent a cost analysis relies on
values that are inaccurate, a state has
not considered cost in a reasoned or
reasonable fashion. To the extent a state
has considered visibility improvement
from potential emissions controls in a
way that substantially understates the
improvement or does so in a way that
is not consistent with the CAA, the state
has not considered visibility
improvement in a reasoned or
reasonable fashion. In these
circumstances—as discussed in more
detail in the proposed notice and this
final notice—EPA is required to
disapprove the relevant aspects of the
SIP. In determining SIP adequacy, we
must exercise our judgment and
expertise regarding complex technical
issues, and it is entirely appropriate that
we do so. Courts have recognized this
necessity and deferred to our exercise of
discretion when reviewing SIPs. See,
e.g., Connecticut Fund for the Env’t.,
Inc. v. EPA, 696 F.2d 169 (2nd Cir.
1982); Michigan Dep’t. of Envtl. Quality
v. Browner, 230 F.3d 181 (6th Cir. 2000);
Mont. Sulphur & Chem. Co. v. EPA,
2012 U.S. App. LEXIS 1056 (9th Cir.
Jan. 19, 2012).
Comment: One commenter asserted
that the U.S. Court of Appeals for the
D.C. Circuit’s decision to vacate CSAPR
is relevant to the Wyoming FIP. EME
Homer City Generation, L.P. v. EPA.,
696 F.3d 7 (D.C. Cir. 2012), cert. granted
570 U.S. (June 24, 2013) (No. 12–1182)
(CSPAR Decision), and stated that EPA’s
proposed Wyoming FIP exceeds EPA’s
statutory authority. The commenter also
states that in vacating CSAPR, the D.C.
Circuit held that EPA’s ‘‘FIP-first’’
approach exceeds EPA’s authority
because EPA issued a FIP at the same
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5053
time it determined the emission
reduction parameters that the states
were supposed to implement. The
commenter stated that EPA’s theory was
that EPA can define the end goals and
simultaneously issue federal plans to
implement them, upending that process
and placing the Federal Government
firmly in the driver’s seat at both steps.
Other commenters stated that the D.C.
Circuit’s rejection of the CSAPR rule is
irrelevant to EPA’s regional haze
rulemaking for Wyoming. They asserted
that the regional haze program differs
from the CAA’s good-neighbor provision
in fundamental ways that make the
court’s rejection of CSAPR irrelevant to
EPA’s action on Wyoming’s regional
haze plan. The commenters stated that
the CAA’s visibility provisions establish
a technology-based standard for eligible
major sources, including PacifiCorp’s
coal-fired power plants in Wyoming.
See 42 U.S.C. 7491(b)(2)(A). To help
achieve ‘‘reasonable progress’’ toward
the national visibility goal, eligible
sources must install BART for hazecausing pollutants. Id. BART is defined
as: ‘‘an emission limitation based on the
degree of reduction achievable through
the application of the best system of
continuous emission reduction for each
pollutant which is emitted by an
existing stationary facility.’’ 40 CFR
51.301. The emission limitation must be
established on a case-by-case basis,
taking into consideration the technology
available, the costs of compliance, the
energy and non-air quality
environmental impacts of compliance,
any pollution control equipment in use
or in existence at the source, the
remaining useful life of the source, and
the degree of improvement in visibility
which may reasonably be anticipated to
result from the use of such technology.
Unlike the D.C. Circuit’s interpretation
of the good-neighbor provision, the
BART definition establishes a floor for
emissions reductions, but no ceiling.
States must ensure that eligible sources
install the best pollution control
devices.
These commenters also argued that
when a SIP fails to establish a program
that meets CAA requirements, then EPA
has an obligation to promulgate a FIP.
Here, they argued, EPA carried out its
statutory duty in proposing a partial FIP
for Wyoming. EPA’s role is not mere
‘‘rubber-stamping’’ of poor SIPs. EPA
‘‘has a duty to evaluate the adequacy of
the existing SIP as a whole when
approving SIP revisions.’’ Ass’n of
Irritated Residents v. EPA, 632 F.3d 584,
591 (9th Cir. 2011). A FIP ‘‘fill[s] all or
a portion of a gap or otherwise correct[s]
all or a portion of an inadequacy in a
State implementation plan.’’ 42 U.S.C.
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7602(y) (emphasis added). In proposing
to reject many of Wyoming’s inadequate
BART determinations, and proposing a
partial FIP, EPA is merely acting to
fulfill its own regulatory obligations
under the Act.
Response: With respect to the
comment that we lacked authority to
promulgate a FIP due to the D.C.
Circuit’s decision in EME Homer City,
we disagree. In EME Homer City, the
D.C. Circuit vacated CSAPR, which was
promulgated by EPA to address
interstate transport of SO2 and NOX
under CAA section 110(a)(2)(D). The
court found that CSAPR exceeded EPA’s
authority under section 110 because the
rule had the potential to require upwind
States to reduce emissions by more than
their own significant contributions to
downwind nonattainment and because
EPA had not given states an opportunity
to submit SIPs after EPA had quantified
their obligations for emissions
reductions.
In the regional haze context, by
contrast, EPA defined states’ obligations
under the RHR and the BART
Guidelines well in advance of its
findings of failure to submit and
subsequent SIP disapprovals. EPA
promulgated the original RHR on July 1,
1999 (64 FR 35714). Following the D.C.
Circuit’s decision in American Corn
Growers, EPA revised the RHR and
issued the final BART Guidelines on
July 6, 2005. (70 FR 39104). The revised
RHR and the BART Guidelines were
upheld by the D.C. Circuit in Utility Air
Regulatory Group v. EPA, 471 F.3d 1333
(D.C. Cir. 2006).18 As explained in our
proposal and elsewhere in this
document, the BART Guidelines
provide detailed instructions to states
on how to determine which sources are
subject to BART and how to analyze the
five statutory factors in order to set
emissions limits representing BART for
each subject-to-BART source.19 In 2006,
responding to specific questions from
various states and Regional Planning
Organizations (RPOs), EPA issued
18 In response to another D.C. Circuit decision,
Center for Energy and Economic Development v.
EPA, 398 F.3d 653 (D.C. Cir. 2005), EPA revised the
RHR’s provisions governing alternatives to sourcespecific BART determinations on October 13, 2006.
These revisions did not alter the requirements for
source-specific BART determinations that apply to
Wyoming’s BART determinations at issue here.
19 40 CFR Part 51, Appendix Y. While the
Guidelines are only mandatory for fossil fuel-fired
electric generating plants with a total generating
capacity in excess of 750 megawatts, States are
encouraged to follow the BART Guidelines in
making BART determinations for other types of
sources. Id. section I.H. The Guidelines also set
specific presumptive limits for SO2 and NOX for
these large power plants, but allow states to apply
more or less stringent limits based upon sourcespecific five-factor analyses. 70 FR 39131–39132.
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further guidance to help states
implement the RHR and BART
Guidelines.20
As noted in prior responses, EPA
issued a finding of failure to submit for
regional haze SIPs on January 15, 2009
(74 FR 2392), triggering a FIP clock
under CAA section 110(c). By this time,
states already had more than three years
since issuance of the final BART
Guidelines to develop their regional
haze SIPs. By the time the FIP clock
actually ran out in January 2011, EPA
had received regional haze SIPs from
nearly every state. EPA has since
proposed and approved, in part or in
whole, the vast majority of these
SIPs.21 22 This stands in contrast to the
situation in EME Homer City, where the
court noted that, ‘‘every Transport Rule
State that submitted a good neighbor SIP
for the 2006 24-hour PM2.5 NAAQS was
disapproved.’’ Thus, it is clear that
states had ample opportunity to submit
approvable regional haze SIPs before
EPA was obligated to promulgate
regional haze FIPs under CAA section
110(c).
One commenter also pointed to the
D.C. Circuit’s general statements
concerning state and federal roles under
the CAA and argues that EPA has
exceeded its statutorily mandated role
in proposing to disapprove portions of
Wyoming’s regional haze SIP and
promulgate a FIP. While we agree that
the general principles concerning state
and federal roles under Title I of the
CAA apply to our action here, we do not
agree that our action is inconsistent
with those principles. In this action, we
are fulfilling our statutory duty to
review Wyoming’s regional haze SIP,
including its BART determinations, for
20 Memo from Joseph W. Paise Regarding
Regional Haze Regulations and Guidelines for
BART (July 19, 2006); Additional Regional Haze
Questions (Guidance) (Sept. 27, 2006). In addition,
EPA issued final ‘‘Guidance for Setting Reasonable
Progress Goals Under the Regional Haze Program’’
on June 1, 2007, but this Guidance is not directly
relevant for individual BART determinations.
21 See, e.g., 76 FR 36450 (Nevada); 77 FR 24794
(New York); 76 FR 13944 (California); 77 FR 11798
(Rhode Island); 76 FR 27973 (Delaware); 77 FR
12770 (Nebraska); 77 FR 18052 (Colorado); 76 FR
16168 (Oklahoma); 77 FR 11914 (Vermont); 77 FR
11928 (Wisconsin); 76 FR 52604 (Kansas); 76 FR
64186 (Arkansas); 77 FR 11839 (Maryland); 76 FR
58570 (North Dakota); 77 FR 3966 (Illinois); 76 FR
76646 (South Dakota). EPA proposed limited
approval and limited disapproval of the Regional
Haze SIPs of states covered by the Clean Air
Interstate Rule (CAIR), due to the remand of CAIR
by the D.C. Circuit. See, e.g. 77 FR 3691 (Jan. 25,
2012) (proposing limited approval and limited
disapproval of Virginia’s Regional Haze SIP).
22 See, e.g., 76 FR 34608 (California); 76 FR 42557
(Delaware); 76 FR 80754 (Kansas); 77 FR 19 (New
Jersey); 77 FR 5191 (District of Columbia); 77 FR
14604 (Arkansas); 77 FR 17334 (Nevada); 77 FR
24845 (South Dakota); 77 FR 40150 (Nebraska); 77
FR 51915 (New York).
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compliance with the applicable
requirements of the CAA and the RHR,
and to disapprove any portions of the
plan that do not meet those
requirements. Based on our review of
the SIP, we proposed to determine that
certain elements of Wyoming’s regional
haze SIP did meet the requirements of
the CAA and the RHR, and we proposed
to approve those elements. However, for
the reasons explained in detail in our
proposed notices and elsewhere in this
document, we have concluded that five
of Wyoming’s BART determinations 23
and four elements of the regional haze
SIP 24 did not comply with the
requirements of the CAA and the RHR.
Based on these findings, we are required
to disapprove these portions of
Wyoming’s regional haze SIP. As
discussed in detail in several below
responses, the CAA provides EPA with
the authority to review and reject an
inadequate regional haze SIP. Oklahoma
v. EPA, 723 F.3d 1201, 1207 (10th Cir.
2013).
Comment: One commenter stated that
the limits on EPA’s authority to reject a
SIP were affirmed by the Fifth Circuit in
Texas v. EPA, 690 F.3d 670 (5th Cir.
2012), vacating EPA’s rejection of a
Texas SIP revision implementing its
minor new source review program (i.e.,
the Texas Flexible Permit Program). In
the Texas decision, the court reaffirmed
the principle that if a SIP or SIP revision
meets the statutory criteria of the CAA,
then EPA must approve it. The
Wyoming regional haze SIP meets the
statutory criteria of the CAA. Therefore,
EPA’s disapproval of the Wyoming
regional haze SIP exceeds EPA’s
statutory authority.
Response: In Texas, the Fifth Circuit
found that EPA had failed to tie its
disapproval to any specific requirement
in the CAA or EPA’s implementing
regulations.25 In this action, our
disapproval is based explicitly and
squarely on the SIP’s failure to comply
with the CAA section 169A(b)(2)(A), as
implemented through the RHR and the
23 As presented elsewhere in this final notice and
in the docket, the five NOX BART determinations
we are disapproving are for the following:
PacifiCorp Dave Johnston Unit 3, PacifiCorp
Wyodak Unit 1, and Basin Electric Laramie River
Units 1, 2, and 3.
24 As presented elsewhere in this final notice and
in the docket, the four elements of the State SIP we
are disapproving include: (1) Wyoming’s RPGs; (2)
The State’s monitoring, recordkeeping, and
reporting requirements in Chapter 6.4 of the SIP; (3)
portions of the State’s long term strategy (LTS) that
rely on or reflect other aspects of the regional haze
SIP that we are disapproving; and (4) the provisions
necessary to meet the requirements for the
coordination of the review of the reasonably
attributable visibility impairment (RAVI) and the
regional haze LTS.
25 690 F.3d at 679, 682, 686.
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BART Guidelines. Just because a court
found EPA’s disapproval invalid in one
case does not mean that finding applies
in all cases. This situation involves a
very different program under the CAA
and a very different state submittal and
review. The Texas case does not involve
BART or the CAA’s regional haze
provisions at all. Rather, it involved
EPA’s disapproval of SIP revisions
involving Texas’s minor new source
review program. There are a limited
number of specific requirements in EPA
rules for minor source review programs.
In contrast, regional haze SIPs and
BART determinations are subject to the
detailed requirements set forth in CAA
section 169A, the RHR, and the BART
Guidelines.
Comment: One commenter stated that
the CSAPR decision criticized the
CSAPR’s FIP-first approach because it
forces states to ‘‘take a stab in the dark’’
on their compliance obligations only to
be judged later whether they hit the
mark. As the D.C. Circuit explained in
the CSAPR decision, a ‘‘SIP logically
cannot be deemed to lack a required
submission or deemed to be deficient
for failure to meet . . . [an] obligation
before EPA quantifies the . . .
obligation.’’ EME Homer City
Generation, L.P. v. EPA., 696 F.3d 7, 49
(D.C. Cir. 2012), cert. granted 570 U.S.
(June 24, 2013) (No. 12–1182)
(hereinafter ‘‘CSPAR Decision’’).
Other commenters reject this
assertion, explaining that Wyoming was
not forced to take a ‘‘stab in the dark’’
in developing its regional haze SIP. In
EME Homer City, the D.C. Circuit
accepted the state petitioners’ argument
that they had no obligation to submit
SIPs until after EPA defined each state‘s
contribution to interstate pollution and
the necessary emissions reductions to
address that contribution. EME Homer
City, 2012 WL 3570721, at *18
(‘‘[L]ogically, a SIP cannot be deemed to
lack a required submission . . . until
after EPA has defined the State‘s good
neighbor obligation.’’; ‘‘There is no way
for an upwind State to know its
obligation . . . until EPA defines it.’’).
Response: We do not agree that
Wyoming was forced to take a ‘‘stab in
the dark’’ in developing its regional
haze SIP. The regional haze program
and the interstate transport obligations
under the CAA are quite different. The
states’ regional haze obligations have
been clearly defined. EPA issued BART
Guidelines establishing detailed
parameters for state BART
determinations in 2005. Commenter’s
charge that EPA may never issue a FIP
in such circumstances is incorrect. We
explain in detail above how the CAA’s
visibility provisions and EPA’s
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implementing regulations differ from
the good-neighbor provision at issue in
EME Homer City. Wyoming was well
aware of these requirements as it
developed its regional haze SIP, through
EPA comment letters and meetings
between EPA and the State. Finally,
unlike the petitioners in EME Homer
City, none of the commenters here
dispute that Wyoming’s regional haze
SIP and BART determinations were
‘‘required submission[s].’’
Comment: One commenter stated that
the CSAPR decision also made clear that
any FIP issued by EPA must be related
to the ‘‘end goal of the statute.’’ The D.C.
Circuit stated in the CSAPR decision:
‘‘[T]he end goal of the statute is
attainment in the downwind state.
EPA’s authority to force reductions on
upwind states ends at the point where
the affected downwind State achieves
attainment.’’ CSAPR Decision at p. 25.
The ‘‘end goal’’ of the regional haze
statutory requirements is to gradually
achieve ‘‘natural visibility’’ conditions
by the year 2064 under an emission
reduction approach known as
reasonable progress as determined by
the states. EPA’s rush in the proposed
Wyoming FIP to front-load as many
emission reductions as possible in the
first five years of this decades-long
program is a clear indication that EPA
has lost sight of the ‘‘end goal’’ of the
regional haze program. Likewise, EPA’s
failure to account for, and properly
address, other causes of visibility
impairment in its FIP, such as natural
causes (forest fires), out of state sources,
oil and gas sources, etc., demonstrates
that EPA has lost focus on the ‘‘end
goal’’ of the regional haze program.
EPA’s proposed Wyoming FIP violates
this ‘‘end goal’’ principle espoused by
the CSAPR decision.
Response: EPA is required to evaluate
BART factors included in state SIPs
(e.g., ultimately rejecting
methodological flaws and data flaws in
estimating costs of compliance and
visibility, as we have done in this final
action), where the flaws in the analysis
prevented the State of Wyoming from
conducting meaningful consideration of
the BART factors, as required by the
BART Guidelines, and moored to the
CAA’s BART and SIP provisions. North
Dakota v. EPA, 730 F.3d 750, 761 (8th
Cir. 2013).
Furthermore, we do not agree that one
provision of the CAA should be read
and applied in isolation. The
commenter’s position would ignore the
rest of the CAA’s statutory requirements
and violate the ‘‘fundamental canon of
statutory construction that the words of
a statute must be read in their context
and with a view to their place in the
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5055
overall statutory scheme.’’ A court must
therefore interpret the statute ‘‘as a
symmetrical and coherent regulatory
scheme,’’ and ‘‘fit, if possible, all parts
into an harmonious whole.’’ FDA v.
Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000) (quoting Davis v.
Michigan Depart of Treasury, 489 U.S.
803, 809 (1989); Gustafson v. Alloyd
Co., 513 U.S. 561, 569 (1995); and FTC
v. Mandel Brothers, Inc., 359 U.S. 385,
389 (1959)). The commenter’s claim that
one provision in the CAA overrides all
other statutory provisions is unfounded
and not supported by the CAA. In
particular, the statutory requirements
for BART are separate and distinct from
the statutory requirements for
reasonable progress.
Moreover, as explained elsewhere in
this document, EPA’s action fully
accounts for other causes of visibility
impairment. With respect to wildfires,
we explain in detail elsewhere in this
document the role that fires play in
determining natural background
conditions. With respect to oil and gas
sources, we are approving the State’s
determination to not impose controls on
this source category during this
planning period, in part because the
State already applies minor source
BACT to many of them through the
State’s SIP-approved minor NSR
program, and in part because controls
on these sources are not so cost-effective
that we are prepared to say the State
was unreasonable. With respect to
accounting for out-of-state sources, we
cited sources outside the Western
Regional Air Partnership (WRAP)
domain as one factor that made it
reasonable for our RPGs to fall short of
the uniform rate of progress (URP) and
unreasonable to achieve the URP.
Finally, we note that we are approving
some of Wyoming’s BART
determinations and all of Wyoming’s
reasonable progress determinations.
Additionally, BART is required in the
first planning period, which ends in
2018, and is required to be installed as
expeditiously as practicable, but in no
event later than five years after the
effective date of this final notice. In light
of the fact that many of Wyoming’s
Class I areas are not even expected to
meet the URP this planning period, the
notion that EPA has required ‘‘frontloading’’ of controls is utterly without
merit.
Comment: Some commenters stated
that the CSAPR decision considered,
and then rejected, a ‘‘reasonableness’’
standard put forth by EPA as the only
limit on its authority to impose
emission reductions under the CSAPR.
CSAPR Decision at p. 37, ftnt. 23. EPA
likewise purports to impose a
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reasonableness standard as adequate
justification for rejecting the Wyoming
regional haze SIP and imposing a FIP.
The CSAPR decision makes clear that
such a reasonableness standard, not
included in the CAA itself, does not
have a place in justifying EPA’s actions
in issuing a FIP. For this added reason,
the CSAPR decision makes clear the FIP
exceeds EPA’s statutory authority.
Response: EPA disagrees with this
comment. First, the commenters
misunderstand the cited footnote in the
CSAPR decision. In the D.C. Circuit’s
view, EPA ignored statutory limits on its
authority and instead claimed that
reasonableness was the only bound on
EPA’s authority. Here, EPA makes no
such claim. EPA, of course, has the
authority and the duty to review
Wyoming’s SIP for compliance with the
CAA and the RHR.
In reviewing the Wyoming regional
haze SIP, EPA has determined that a
‘‘reasonableness’’ standard is in fact
harmonious with the CAA and the RHR,
and the courts have agreed. Oklahoma
v. EPA, 723 F.3d 1201, 1207 (10th Cir.
2013) (‘‘The EPA therefore had a
reasonable basis for rejecting the 2008
Cost Estimates [that were based on the
overnight costing method] as not
complying with the guidelines.’’); see
also North Dakota v. EPA, 730 F.3d 750,
761 (8th Cir. 2013) (explaining EPA is
not required to ‘‘approve a BART
determination that is based upon an
analysis that is neither reasoned nor
moored to the CAA’s provisions’’).
The CAA requires states to submit
SIPs that contain such measures as may
be necessary to make reasonable
progress toward achieving natural
visibility conditions, including BART.
The CAA accordingly requires the states
to submit a regional haze SIP that
includes BART as one necessary
measure for achieving natural visibility
conditions. See Alaska Dep’t of Envtl.
Conservation v. EPA, 540 U.S. 461, 500
(2004) (in a related context, holding that
EPA validly issued stop work orders
because the state’s BACT determination
‘‘simply did not qualify as reasonable in
light of the statutory guides.’’ (emphasis
added)) (hereinafter ‘‘ADEC’’). Thus we
are not establishing a new
reasonableness standard, as the
commenter asserts.
Comment: In the CSPAR decision, the
D.C. Circuit found it ‘‘inconceivable’’
that Congress would bury in the CAA
‘‘an open-ended authorization for EPA
to effectively force every power plant in
the upwind States to install every
emissions control technology EPA
deems ‘cost effective’.’’ CSAPR Decision
at p. 40. In so finding, the court refused
to transform a ‘‘narrow’’ provision into
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a ‘‘broad and unusual’’ authority that
would overtake other core provisions of
the Act.’’ Id. Similarly, it is
inconceivable in the regional haze
context that Congress would bury an
open-ended authorization allowing EPA
to ignore its own BART Guidelines,
overrun carefully crafted state regional
haze SIPs and BART determinations,
and require the installation of expensive
emission controls which result in
minimal regional haze improvements.
This principle espoused in the CSAPR
decision is particularly applicable in the
regional haze context where, just like in
the CSAPR, EPA’s BART determinations
in the Wyoming FIP are ‘‘not a clear
numerical target—far from it—until EPA
defines the target.’’ CSAPR Decision at
p. 48. And in spite of EPA initially
helping to define ‘‘the target’’ by issuing
its BART Guidelines (which EPA
subsequently ignored), EPA did not
begin to redefine the target until it began
to issue various determinations around
the country in reaction to various state
regional haze SIPs. Even then, EPA’s
‘‘target’’ is not clear and certainly is
impossible to determine, on a state or
source-by-source basis, until EPA sets
the target in a state-specific FIP.
Like the upwind states in the CSAPR
decision, it was ‘‘impossible’’ for
Wyoming to determine its regional haze
obligation ‘‘until EPA defined it.’’ Id.
This process effectively allows EPA to
impose any standard it wants with little
ability for the states (or sources) to
achieve the redefined target through a
state-led process because of the tight
deadlines imposed by EPA as a result of
negotiated consent decree deadlines.
Response: We do not agree that we
have ignored the CAA and BART
Guidelines. As explained in our
proposed notice and elsewhere in this
document, our decisions are firmly
grounded on the CAA provisions and
BART Guidelines, and Wyoming was
well aware of these requirements as it
developed its SIP. In addition, the
comparison of BART determinations
and the CSAPR decision is not
appropriate. In contrast to CSPAR, the
CAA and RHR do not set specific
numerical targets for BART
determinations. Instead, they require
states to reasonably consider the five
statutory factors, which, as we have
detailed in our proposal and in our
response to comments, Wyoming did
not do. Furthermore, EPA provided
extensive comments to the State on the
proposed regional haze SIP and met
with the State on numerous occasions,
so the State was aware of EPA’s
concerns regarding approvability before
the SIP was submitted to EPA. As
explained below in greater detail, the
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Consent Decree that covers this action
has not hindered Wyoming’s ability to
develop and submit an approvable SIP.
Wyoming can submit new SIP revisions,
and request that EPA review and
approve them, to replace the FIP
elements at any time.
To the extent that the comment argues
that the RHR itself is invalid for similar
reasons to those for which the D.C.
Circuit vacated CSAPR, the time to
make those arguments has passed.
Finally, in establishing the BART
requirements, Congress was addressing
a category of large sources that predated the modern NSR affected sources,
which were determined to significantly
contribute to regional haze and set an
expectation that included consideration
of cost, feasibility, and effect on regional
haze (as well as the other five factors)
for those sources, many of which did
not have modern pollution controls
because of their age and because they
hadn’t been addressed through ozone
SIPs the way so many eastern sources
had. This is one of the reasons why the
western regional haze SIPs are seeing
emission controls.
Comment: One of the commenters
stated that one of the key conclusions of
the CSAPR decision was that EPA
exceeded the scope of its authority by
requiring emission reductions beyond
the statutory or regulatory requirements.
In the CSAPR decision, the court looked
at the fact that once EPA had
determined that an upwind emission
source contributed ‘‘significantly’’ to
nonattainment or maintenance of the
standard in a downwind state; it was
‘‘in’’ for purposes of requiring emission
reductions. The emission reduction
requirements were then based on costeffectiveness thresholds that were
applied uniformly throughout the
CSAPR region. In other words, all
emissions that could be reduced, for
example, for a cost between $1 and $500
per ton were effectively required. The
court held that this approach resulted in
a situation where some sources had to
bear a disproportionate amount of costs,
based on their relative contribution to
the nonattainment or maintenance
problem.
Similarly in the regional haze context,
EPA established an ‘‘in or out’’ criteria
of a 0.5 deciview impact. Sources with
modeling results that suggested the
impact was greater than 0.5 were ‘‘in’’
and required further analysis. If, under
EPA’s FIP approach, the facilities could
cost-effectively (as determined by EPA,
not the states) control emissions, they
were required to do so. Oftentimes, EPA
has required the controls
notwithstanding the negligible
contribution the emission reductions
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will have towards meeting the
requirement of the RHR. EPA’s
conclusions requiring individual
sources to reduce emissions under its
subjective cost-effectiveness criteria
have no relationship to visibility
impacts or improvements, and EPA
failing to conduct that modeling, but
supporting a determination of
reasonableness of controls ‘‘based on the
high cost effectiveness at each of the
units.’’ 77 FR at 33034, 33038 and
33055.
EPA’s conclusions regarding emission
reductions that are based on the costeffectiveness of controls without an
appropriate linkage to visibility
improvement and meeting the goals and
objectives of the RHR exceed EPA’s
statutory authority as suggested by the
CSAPR decision.
Response: We agree with some of this
comment and disagree with other
portions. As an initial matter, as we
explained in our proposed notice, we
note that:
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Wyoming used a contribution threshold of
0.5 deciviews for determining which sources
are subject-to-BART. By using a contribution
threshold of 0.5 deciviews, Wyoming
exempted seven of the fourteen BARTeligible sources in the State from further
review under the BART requirements. Based
on the modeling results, the State determined
that P4 Production, FMC Granger, and OCI
Wyoming had an impact of .07 deciview,
0.39 deciview, and 0.07 deciview,
respectively, at Bridger Wilderness. Black
Hills Neil Simpson 1, Sinclair Casper
Refinery, and Sinclair—Sinclair Refinery
have an impact of 0.27 deciview, 0.06
deciview, and 0.12 deciview, respectively, at
Wind Cave. Dyno-Nobel had an impact of
0.22 deciview at Rocky Mountain National
Park. These sources’ modeled visibility
impacts fell below the State’s threshold of 0.5
deciview and were determined not to be
subject-to-BART. 78 FR 34747
Since the State’s approach is consistent
with the BART Guidelines 26 and given
the relatively limited impact on
visibility from these seven sources, as
explained earlier in this document and
in our proposals, we are finalizing our
proposal to approve Wyoming’s
threshold of 0.5 deciviews as reasonable
for determining whether its BARTeligible sources are subject-to-BART. 78
FR 34734, 34747
We do not agree that our decision
exceeds our statutory authority and the
goals and objectives of the RHR. CAA
section 110(a)(2)(J) requires each plan
submitted by a state to ‘‘meet the
applicable requirements’’ of Part C of
Title I of the CAA, including those for
‘‘visibility protection.’’ In the case of a
regional haze SIP submittal, the
26 40
CFR part 51, appendix Y, section III.A.1.
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‘‘applicable requirements’’ include the
requirement that each source found
subject-to-BART, ‘‘procure, install, and
operate, as expeditiously as practicable
(and maintain thereafter) the best
available retrofit technology . . .’’ 27
Section 169A(g)(2) further provides that:
In determining best available retrofit
technology the State (or the Administrator in
determining emission limitations which
reflect such technology) shall take into
consideration the costs of compliance, the
energy and non-air quality environmental
impacts of compliance, any existing
pollution control technology in use at the
source, the remaining useful life of the
source, and the degree of improvement in
visibility which may reasonably be
anticipated to result from the use of such
technology.28
Similarly, the RHR provides that:
The determination of BART must be based
on an analysis of the best system of
continuous emission control technology
available and associated emission reductions
achievable for each BART-eligible source that
is subject to BART within the State. In this
analysis, the State must take into
consideration the technology available, the
costs of compliance, the energy and non-air
quality environmental impacts of
compliance, any pollution control equipment
in use at the source, the remaining useful life
of the source, and the degree of improvement
in visibility which may reasonably be
anticipated to result from the use of such
technology.29
Wyoming’s BART determinations for
NOX at five BART units fall short of
these requirements in several respects.
First, Wyoming did not analyze the
‘‘best system of continuous emission
control technology available and
associated emission reductions
achievable.’’ This is explained in detail
in our proposed rulemaking, the docket
for this action, and elsewhere in this
document. Therefore, Wyoming has not
demonstrated that its BART
determinations were ‘‘based on an
analysis of the best system of
continuous emission control technology
available and associated emission
reductions achievable.’’
For example, as we explained in our
proposed notices and elsewhere in this
final action, Wyoming did not
appropriately consider the ‘‘degree of
improvement in visibility which may
reasonably be anticipated’’ from
installation of BART because it did not
provide visibility improvement
modeling from which the benefits of
individual NOX controls could be
ascertained. Thus Wyoming’s BART
27 CAA section 169A(b)(2)(A), 42 U.S.C.
7491(b)(2)(A).
28 42 U.S.C. 7491(g)(2).
29 40 CFR 51.308(e)(1)(ii)(A).
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determinations for NOX do not meet the
requirements of CAA section 169A(g)(2)
or 40 CFR 51.308(e)(1)(ii)(A).
Additionally, as explained in our
proposed notices and elsewhere in the
modeling section of this final action, it
was not possible to ascertain the
visibility improvement from the NOX
control options as the State modeled
emission reductions for multiple
pollutants together. For this reason, in
the modeling conducted by EPA, we
held SO2 and PM emission rates
constant (reflecting the ‘‘committed
controls’’ for those pollutants identified
by Wyoming), and varied only the NOX
emission rate. This allowed us to isolate
the degree of visibility improvement
attributable to the NOX control option.
In addition, 40 CFR 51.308(e)(1)(ii)(B)
provides that the determination of
BART for fossil-fuel fired power plants
having a total generating capacity
greater than 750 megawatts must be
made pursuant to the guidelines in
appendix Y of part 51 (Guidelines for
BART Determinations under the
Regional Haze Rule).
All of the Wyoming BART sources,
except Wyodak, each have a generating
capacity greater than 750 megawatts.
Therefore, the BART determinations for
these BART sources must be made
pursuant to the BART Guidelines.
However, Wyoming’s BART
determinations for these sources did not
fully comply with the BART Guidelines.
In particular, as explained more fully
elsewhere in this document, contrary to
the Guidelines’ admonition that ‘‘cost
estimates should be based on the CCM,
where possible,’’ the control cost
calculations supplied by the utilities
and relied upon by Wyoming included
costs not allowed by the CCM, such as
owner’s costs and Allowance for Funds
Utilized During Construction (AFUDC).
Thus, Wyoming’s consideration of the
‘‘cost of compliance’’ for these units was
not consistent with the Guidelines.
Furthermore, as explained elsewhere in
this document, Wyoming’s
consideration of visibility benefits was
inconsistent with the Guidelines
because the State did not provide
visibility modeling from which the
visibility improvement from individual
controls could be ascertained. Finally,
for all pollutants at all units covered by
today’s action, Wyoming’s regional haze
SIP does not meet the requirements of
40 CFR 51.308(e)(1)(iv) and (v) because
it lacks the following elements:
• A requirement that each source
subject to BART be required to install
and operate BART as expeditiously as
practicable, but in no event later than 5
years after approval of the
implementation plan revision.
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• A requirement that each source
subject to BART maintain the control
equipment required by this subpart and
establish procedures to ensure such
equipment is properly operated and
maintained.
These two requirements are
mandatory elements of the RHR and are
necessary to ensure that BART is
procured, installed, and operated as
expeditiously as practicable and
maintained thereafter, as required under
CAA section 169A(b)(2)(A).
Moreover, the CAA and regional haze
rule require that SIPs contain provisions
that make emissions limits, including
BART limits, practically enforceable.
CAA section 110(a)(2)(A)–(B) require
that emissions limits such as BART be
‘‘practically enforceable’’ and SIPs
provide for establishment, methods and
procedures necessary to monitor,
compile, and analyze data. CAA section
302(k) requires emissions limits to be
met on a continuous basis. Additionally,
CAA section 169A(b)(2) requires that
regional haze SIPs include ‘‘such
emission limits, schedules of
compliance and other reasonable
measures’’ necessary to meet the goals
of the regional haze program.’’ As
discussed in our proposed notices and
elsewhere in this final notice,
Wyoming’s regional haze SIP lacks
requirements for monitoring,
recordkeeping, and reporting sufficient
to ensure that the BART limits are
enforceable and are met on a continuous
basis.
Therefore, Wyoming’s BART
determinations for these five units
covered by the FIP do not meet the
BART requirements of the CAA, the
RHR and the BART Guidelines.
Additionally, Wyoming’s SIP
requirements do not ensure the BART
limits are enforceable for all BART
sources for which there is a SIP or FIP
emissions limit, and therefore do not
meet the requirements of the CAA and
RHR. Accordingly, we are compelled to
partially approve and partially
disapprove Wyoming’s regional haze
SIP.
Comment: EPA cannot invoke its
Section 110 SIP approval authority as
grounds for rejecting state BART
determinations with which it disagrees.
The CAA does not require any specific
degree of visibility improvement in the
determination and only requires BART
for the purpose of eliminating or
reducing impairment to visibility. See
CAA Section 169A, 42 U.S.C. 7491.
Consistent with the long-recognized
principle that EPA may not ‘‘condition
approval of the plan of any State, on the
State’s adoption of a specific control
measure,’’ Virginia, 108 F.3d at 1408,
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EPA has no statutory authority to
disapprove a SIP that contains a BART
determination for an individual facility
that complies with the statutory BART
factors. Any other result would allow
EPA to employ its generalized SIP
approval authority to ‘‘run roughshod
over the procedural prerogatives that the
Act has reserved to the States.’’
Bethlehem Steel Corp., 742 F.2d at 1036.
The fact that states must propose SIP
revisions ‘‘as may be necessary’’ to
achieve reasonable progress does not
mean EPA has authority to countermand
the textual commitment of specific
BART decisions to the states. The D.C.
Circuit interpreted similar language in
Section 110(k)(5) to constrain EPA’s
authority over SIP approval and
disapproval. See Virginia, 108 F.3d at
1409. The SIP call provisions of Section
110(k)(5) state that when a SIP is
inadequate ‘‘the Administrator shall
require the State to revise the plan as
necessary to correct such inadequacies.’’
But the Virginia court rejected the
agency’s expansive view of this phrase
as authority to impose specific control
measures for specific emission sources.
Response: States are required by the
CAA to address the BART requirements
in their SIP. Our disapproval of the NOX
BART determinations in the Wyoming
regional haze SIP is authorized under
the CAA because the State’s NOX BART
determinations for the five units do not
satisfy the statutory criteria. The State’s
analysis of the cost effectiveness of
controls and visibility analyses were
flawed due to reasons discussed
elsewhere in the proposed and final
notices. While states have authority to
exercise different choices in
determining BART, the determinations
must be reasonably supported.
Wyoming’s errors in taking into
consideration the costs of compliance
were significant enough that we cannot
conclude the State determined BART
according to CAA standards. The cases
cited by the commenters stress
important limits on EPA authority in
reviewing SIP submissions, but our
disapproval of these NOX BART
determinations for the five units has an
appropriate basis in our CAA authority.
We did not require Wyoming to adopt
specific control measures for specific
emission sources. Instead, we
disapproved some of Wyoming’s BART
determinations for reasons described in
detail in our proposal and elsewhere in
our response to comments. To
promulgate our FIP, EPA then had both
the authority and the duty to determine
specific control measures for specific
sources.
Finally, contrary to the commenter’s
assertion, the Bethlehem Steel case is
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inapplicable here. We are promulgating
BART emission limitations and other
FIP elements described elsewhere in
this document under the authority of
CAA section 110(c), not through our
action on Wyoming’s SIP. We have
authority to promulgate our FIP under
110(c) on two separate grounds: first,
based on our January 2009 finding of
failure to submit the regional haze plan
elements required by 40 CFR 51.309(g),
the reasonable progress requirements for
areas other than the 16 Class I areas
covered by the Grand Canyon Visibility
Transport Commission Report; and
second, based on our partial disapproval
of the regional haze SIP.
Comment: We received comments
that EPA does not have the authority
under the CAA to issue a regional haze
FIP in this instance. Commenters
contend that EPA’s role under Section
110 in reviewing states’ regional haze
SIPs is narrow and that the CAA
confines EPA to the ministerial function
of reviewing SIPs for consistency with
the CAA’s requirements. Commenters
assert that Wyoming submitted a
regional haze SIP that met the
requirements of Section 51.309 and
included all the required elements and
that EPA admits that Wyoming has
considered all five BART factors.
Therefore, commenters go on to say that
EPA’s sole function was to review
whether Wyoming followed the regional
haze requirements, including Appendix
Y, in preparing the Wyoming regional
haze SIP, and Congress did not
authorize EPA to ‘‘second guess’’
Wyoming’s BART decision making, or
to substitute its own judgment, simply
because EPA would prefer different
BART and reasonable progress NOX
controls. Commenters go on to point out
that courts have consistently held that
states are primarily responsible for SIP
development; EPA’s role is ministerial.
Commenters cite that the Supreme
Court has recognized the states’ primary
role in developing SIPs, holding ‘‘so
long as the ultimate effect of a State’s
choice of emission limitations is in
compliance with the national standards
for ambient air, the State is at liberty to
adopt whatever mix of emission
limitations it deems best suited to its
particular situation.’’ Train v. NRDC,
421 U.S. 60, 79 (1975). Commenters
argue that EPA is going beyond its
ministerial function of reviewing
Wyoming’s regional haze SIP for
consistency with the CAA’s
requirements; it is attempting to design
Wyoming’s SIP by establishing new
NOX emission limits, contrary to its
promulgated BART regulations.
Commenters go on to say that EPA
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should follow the structure of the CAA
and give deference to the State’s
judgment in determining BART in
Wyoming’s regional haze SIP.
Response: States are required by the
CAA to address the BART requirements
in their SIP. Our disapproval of the NOX
BART determinations in the Wyoming
regional haze SIP is authorized under
the CAA because the State’s NOX BART
determinations for the five units do not
satisfy the statutory criteria. The State’s
analyses of the cost effectiveness of
controls and visibility analyses were
flawed due to reasons discussed in the
introduction and BART sections of this
document. While states have the
authority to exercise different choices in
determining BART, the determinations
must be reasonably supported.
Wyoming’s errors in taking into
consideration the costs of compliance
and visibility analyses were significant
enough that we cannot conclude the
State determined BART according to
CAA standards. The cases cited by the
commenters stress important limits on
EPA authority in reviewing SIP
submissions, but our disapproval of
these NOX BART determinations for the
five units has an appropriate basis in
our CAA authority.
Comment: Under the CAA, both the
federal government and the states have
responsibilities for maintaining and
improving air quality. The federal
government has the authority to set
specific emissions targets, but the states
have the authority to develop and
impose their own regulatory structure to
meet those. As long as the State meets
its specific criteria, which Wyoming can
and will show that it has done, the fact
that EPA does not share the State’s
opinion regarding the best course of
action is immaterial.
This reading of the CAA is the
opinion of the Congress that passed the
regional haze program in 1977.
Committee and floor debate in Congress
at the time makes clear that Congress
fully intended for the states to possess
a high degree of primacy in regional
haze decisions. The primary sponsor of
the CAA and 1977 amendments in the
Senate was the late Senator Edmund
Muskie, a Democrat from Maine. In his
opening address to the Senate on the
Conference Report to the 1977
amendments, Senator Muskie said,
‘‘under this legislation, the
administrator of the EPA will be more
reliant on local and state capabilities to
create the institutional and
infrastructural changes necessary to
achieve clean air. And perhaps this is as
it should be. We have learned that there
is little political support for inartfully
conceived national measures. We have
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learned that where change can be made,
it must be made with the full
understanding and support of the
people who are affected by that
change.’’
While the courts in some instances
may not give adequate weight to the
intent of Congress in drafting
legislation, Congress’s intent in passing
the nation’s law is something that
Congress itself takes very seriously.
Some courts have honored
Congressional intent and upheld the
CAA as a cooperative statute. In
Appalachia Power Company v. EPA
[sic], the courts determined that the
CAA includes a cooperative standard
they call a federalism bar. In Train and
Luminant Generation Co., LLC v. EPA,
675 F.3d 917 (5th Cir. 2012) (hereinafter
‘‘Luminant’’), the courts held that the
EPA had no authority to overturn the
decisions of the states so long as the
basic requirements of Section 110 are
met.
EPA does not have the authority
under the CAA to issue a regional haze
FIP in this instance. EPA contends its
review of the Wyoming SIP is ‘‘pursuant
to section 110 of the CAA.’’ 78 FR
34738. Section 110(a)(2) provides the
general requirements that a SIP must
contain. Importantly, EPA’s role under
Section 110 in reviewing states’ regional
haze SIPs is narrow: ‘‘With regard to
implementation, the (CAA) confines the
EPA to the ministerial function of
reviewing SIPs for consistency with the
(CAA)’s requirements.’’ Luminant
Generation Co., LLC v. EPA, 675 F.3d
917, 921 (5th Cir. 2012) (citing section
110(k)(3)). As the court in Luminant
explained, if the state’s submissions
‘‘satisfy those basic requirements (found
in section 110), the EPA must approve
them,’’ and ‘‘(t)hat is the full extent of
the EPA’s authority in the SIP-approval
process because that is all the authority
that the CAA confers.’’ Id. at 932. Here,
Wyoming submitted a regional haze SIP
that met the requirements of Section 309
and included all the required elements.
The Wyoming SIP submittals are well
developed and comprehensive. EPA
admits that Wyoming considered all five
BART factors. 78 FR 34748. Therefore,
EPA’s role was to review whether
Wyoming followed the regional haze
requirements, including Appendix Y,
and provided factual support for the
Wyoming regional haze SIP. Congress
did not authorize EPA to ‘‘second
guess’’ Wyoming’s BART decision
making, or to substitute its own
judgment, simply because EPA would
prefer different BART and reasonable
progress NOX controls.
More recently, the D.C. Court vacated
the CSAPR. The court’s 2012 opinion in
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the CSAPR case is illustrative for our
purposes because the EPA used very
similar arguments to justify their
authority in CSAPR as they’re using
today for regional haze. In vacating the
CSAPR rule, the D.C. Circuit Court
writes ‘‘under the CAA, the federal
government sets air quality standards,
but states retain the primary
responsibility for choosing how to attain
those standards within their borders.
The Act thus leaves it to the individual
states to determine, in the first instance,
the particular restrictions that will be
imposed on particular emitters within
their borders.’’ The court goes on to
write that ‘‘. . .the statutory federalism
bar prohibits the EPA from using the SIP
process to force states to adopt specific
control measures.’’
Response: We responded to similar
comments above.30 With respect to
EPA’s supposed admission that
Wyoming considered the five BART
factors, the precise language in the
proposal notice is: ‘‘We find that
Wyoming considered all five steps
above in its BART determinations, but
we propose to find that its consideration
of the costs of compliance and visibility
improvement for the EGUs was
inadequate and did not properly follow
the requirements in the BART
Guidelines and statutory requirements,
as explained below.’’ 78 FR 34748. With
respect to the legislative history quoted,
the comment does not provide any
connection between the general remarks
of Senator Muskie regarding the 1977
Amendments and EPA’s interpretation
of the visibility provisions in the Act.
Comment: We received numerous
general comments that EPA has
overstepped its authority and that states
have the responsibility of determining
what controls are necessary for regional
haze.
Response: As explained earlier, the
states have the responsibility to draft the
regional haze SIP and EPA has the
responsibility of ensuring state plans,
including regional haze SIPs, conform to
the CAA. As the drafter of the regional
haze SIP, the State generally has the
authority to decide how each of the
BART factors are taken into account and
weighed. EPA is not disapproving
Wyoming’s BART determinations
because we disagree with how Wyoming
weighed the relevant factors, such as the
cost of controls or the degree of
visibility improvement resulting from
30 As the commenter mentions, we agree that we
did approve Wyoming’s regional haze SIP
submitted under Section 309 of the RHR (40 CFR
51.309) (77 FR 73926 (Dec. 12, 2012)), as in that
action we determined the State met the
requirements of 40 CFR 51.309 and related
provisions.
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the use of controls. EPA is disapproving
certain Wyoming BART determinations
because the State did not consider these
factors in its BART determinations in
accordance with the RHR and the Act.
Comment: EPA’s regional haze FIP
failed to afford the required deference to
the technical, policy and other
discretion granted to Wyoming under
the CAA and regional haze program.
Congress added section 169A to the
CAA in order to address the
‘‘impairment of visibility’’ in Class I
areas that ‘‘results from man-made air
pollution.’’ This provision of the CAA,
in turn, describes separate roles for EPA,
the states, and major sources such as
PacifiCorp’s BART Units.
EPA’s roles are to create a report, see
CAA section 169A(a)(2)–(3), create
regional haze regulations, see CAA
section 169A(a)(4), provide guidelines
for the states, see CAA section
169A(b)(1), and determine whether
regional haze SIPs submitted by the
states follow the regulations and
guidelines, and contain the required
elements. CAA section 110. The states’
roles, which are central to the regional
haze program, are intended to be
accomplished using substantial
discretion which, in turn, requires
significant deference from EPA. States
are required to submit a regional haze
SIP that contains ‘‘emission limits,
schedules of compliance and other
measures as may be necessary to make
reasonable progress toward meeting the
national goal.’’ CAA section 169A(b)(2).
States also must ‘‘determine[*thnsp;]’’
BART for ‘‘each major stationary
source.’’ CAA 169A(b)(2)(A). BART
sources, such as PacifiCorp’s BART
units, are required to ‘‘procure, install,
and operate (BART) as expeditiously as
practicable.’’ CAA section
169A(b)(2)(A).
Thus, the CAA mandates that states
have the primary role in developing
regional haze SIPs to protect visibility in
Class I areas. Likewise, the RHR makes
clear that states have the responsibility
to create and implement regional haze
SIPs. In contrast, EPA’s role is to
develop ‘‘guidelines’’ for the states to
use in implementing regional haze SIPs
and to determine whether states
followed those guidelines. CAA section
169A(b)(1). In short, the CAA
anticipates that states, using their
discretion, develop regional haze SIPs
using EPA guidelines. This is exactly
what Wyoming did in issuing BART
permits and developing the Wyoming
regional haze SIP.
In issuing regional haze guidelines,
EPA recognized the broad discretion
granted to the states by the CAA.
Specifically, EPA adopted guidance to
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address BART determinations for
certain large electrical generating
facilities, referred to as ‘‘Appendix Y.’’
EPA created further guidance in the
Federal Register responding to
comments concerning the thenproposed Appendix Y, referred to as the
‘‘Preamble.’’ EPA recognized in the
Preamble that ‘‘how states make BART
determinations or how they determine
which sources are subject to BART’’ are
among the issues ‘‘where the Act and
legislative history indicate that Congress
evinced a special concern with insuring
that states would be the decision
makers.’’ 70 FR 39104, 39137 (July 6,
2005).
Likewise, in analyzing the
applicability of certain executive orders,
EPA stated that ‘‘ultimately states will
determine the sources subject to BART
and the appropriate level of control for
such sources’’ and that ‘‘states will
accordingly exercise substantial
intervening discretion in implementing
the final rule.’’ Id. at 39155. The U.S.
Court of Appeals for the D.C. Circuit has
affirmed that EPA’s role regarding
regional haze programs is limited and
that a state’s role is paramount. Indeed,
the Court found that the CAA ‘‘calls for
states to play the lead role in designing
and implementing regional haze
programs.’’ American Corn Growers
Ass’n v. E.P.A., 291 F.3d 1, 2 (D.C. Cir.
2002). The court also reversed a portion
of EPA’s original RHR because it found
that EPA’s method of analyzing
visibility improvements distorted the
statutory BART factors and was
‘‘inconsistent with the Act’s provisions
giving the states broad authority over
BART determinations.’’ Id. at 8; (see
also Utility Air Regulatory Group v.
EPA, 471 F.3d 1333, 1336 (D.C. Cir.
2006) (The second step in a BART
determination ‘‘requires states to
determine the particular technology that
an individual source ‘subject to BART’
must install.’’)). The court in American
Corn Growers emphasized that Congress
specifically entrusted states with
making BART five-factor analysis
decisions: ‘‘[t]o treat one of the five
statutory factors in such a dramatically
different fashion distorts the judgment
Congress directed the states to make for
each BART-eligible source.’’ American
Corn Growers, 291 F.3d at 6.
The court in American Corn Growers
also outlined the relevant legislative
history that recounts a specific
agreement reached in Congress which
granted this authority to the states: ‘‘The
‘agreement’ to which the Conference
Report refers was an agreement to reject
the House bill’s provisions giving EPA
the power to determine whether a
source contributes to visibility
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impairment and, if so, what BART
controls should be applied to that
source. Pursuant to the agreement,
language was inserted to make it clear
that the states—not EPA—would make
these BART determinations. The
Conference Report thus confirms that
Congress intended the states to decide
which sources impair visibility and
what BART controls should apply to
those sources. The RHR attempts to
deprive the states of some of this
statutory authority, in contravention of
the Act.’’ Id. at 8. EPA’s FIP action
makes the same mistake and, if
finalized, will be similarly reversible.
In sum, based on the language in the
CAA, the RHR, EPA’s own guidelines,
and case law, the states have significant
discretion when creating regional haze
SIPs.
Response: We responded to similar
comments above and elsewhere in this
document.
Comment: EPA failed to properly
account for that discretion in analyzing
the Wyoming regional haze SIP. EPA
should have acknowledged that the
Wyoming regional haze SIP followed
the law and was supported by the facts.
Examples of EPA ignoring Wyoming’s
discretion include: Visibility
improvement; cost effectiveness
analysis; modeling; application of the
five BART factors; and reasonable
progress analyses.
Response: We responded to similar
comments above and elsewhere in this
document.
Comment: EPA’s proposed action
ignores the congressional commitment
to have local decisions under the CAA—
particularly those relating to BART—
made by the states. States have the
primary responsibility for preventing air
pollution under the CAA. CAA section
101(a)(3), 42 U.S.C. 7401(a)(3). Pursuant
to this principle, states, not EPA, have
always had primary control over
decisions to impose specific emission
limits (and therefore specific pollution
control technologies) for individual
facilities. By congressional design,
under the CAA EPA ‘‘is relegated . . .
to a secondary role in the process of
determining and enforcing the specific,
source-by-source emission limitations
which are necessary [to meet] national
standards.’’ Train v. NRDC, 421 U.S. 60,
79 (1975) (hereinafter ‘‘Train’’). This
basic division of responsibilities
between EPA and the States remained
unchanged when Congress amended the
Act in 1977 and again in 1990. See
Virginia v. EPA, 108 F.3d 1397, 1408–
10 (D.C. Cir. 1997).
Congress took this principle a step
further under the regional haze program,
specifically directing that BART is to be
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‘‘determined by the State.’’ CAA section
169A(b)(2)(A), 42 U.S.C. section
7491(b)(2)(A). Congress adopted the
BART provisions to address visibility,
rather than health concerns. See H.R.
Rep. 95–294, at 529 (1977) (‘‘It should
be made clear at the outset that this
provision [concerning BART] is totally
unrelated to any question involving
public health.’’) (separate views of
Messrs. Devine, Krueger, Broyhill,
Gammage, Clarence J. Brown, Collins,
Moore and Stockman). Congress
therefore sensibly left decisions relating
to the imposition of costly visibility
control technologies on certain existing
sources entirely to the states, where
local factors could be properly
considered and implemented:
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The agreement clarifies that the state,
rather than the Administrator, identifies the
source that impairs visibility in the Federal
class I areas. ‘‘. . . In establishing emission
limitations for any source which impairs
visibility, the State shall determine what
constitutes ‘best available retrofit technology’
. . .’’ H.R. Conf. Rep. 95–564, at 155 (1977).
While the original House bill would have
given EPA the power to determine what
BART controls should be applied to
individual sources, Congress eventually
inserted the current statutory language to
make it clear that the States, rather than EPA,
would make BART determinations. See id.; 5
Leg. History of CAA Amendments 1997 P.L.
95–95, H8663 (1997) (‘‘The provision [in the
original bill] was modified to give States a
greater role in identifying sources which are
contributing (or may in the future contribute)
to visibility problems and in establishing
control requirements for those sources.’’).
Senator Muskie confirmed during the floor
debate that ‘‘the State, not the Administrator,
identifies a source that may impair visibility’’
and that ‘‘it is the State which determines
what constitutes ‘Best Available Retrofit
Technology.’ ’’ 123 Cong. Rec. 26,854 (1977).
The federal courts have enforced this
legislative intent. In American Corn
Growers, the D.C. Circuit quoted at
length from the legislative history of
section 169A to conclude that it was
‘‘clear that the States—not EPA—would
make these BART determinations.’’ 291
F.3d at 8; see also id. at 8 (‘‘The
Conference Report . . . confirms that
Congress intended the States to decide
which sources impair visibility and
what BART controls should apply to
those sources.’’). American Corn
Growers reaffirms that the states have
‘‘broad authority’’ to make their own
BART determinations. Id. It also
reaffirms that EPA cannot ‘‘deprive the
states of some of this statutory
authority,’’ nor can EPA ‘‘constrain[ ]
authority Congress conferred on the
states’’ with respect to BART
determinations. Id. at 8–9. It was for this
reason that the court struck EPA’s first
attempt at the Regional Haze Rule: it
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purported to tell the states how to make
BART determinations. Id. at 6–7. The
same court later reiterated that BART
‘‘requires States to determine the
particular technology that an individual
source ‘subject to BART’ must install.’’
Utility Air Regulatory Grp. v. EPA, 471
F.3d 1333, 1336 (D.C. Cir. 2006).
Other federal courts have recognized
the cooperative federalism policies on
which the CAA in general—and the
regional haze provisions in particular—
are based. See, e.g., Texas v. EPA, 690
F.3d 670, 684 (5th Cir. 2012); Ellis v.
Gallatin Steel Co., 390 F.3d 461, 467
(6th Cir. 2004); Sierra Club v. EPA, 315
F.3d 1295, 1300 (11th Cir. 2002); Am.
Lung Ass’n of N.J. v. Kean, 871 F.2d 319,
322 (3d Cir. 1989). Under cooperative
federalism, states retain the discretion
and flexibility to make their own
choices based on local conditions,
histories, and policies. See, e.g., Budget
Prepay, Inc. v. AT&T Corp., 605 F.3d
273, 281 (5th Cir. 2010) (‘‘ ‘cooperative
federalism’ . . . necessarily implies that
states may reach differing conclusions
on specific issues relating to the
implementation of the [statute]’’); Global
NAPs, Inc. v. Mass. Dep’t of Telecom. &
Energy, 427 F.3d 34, 46 (1st Cir. 2005)
(cooperative federalism has ‘‘the
intended effect of leaving state
commissions free, where warranted, to
reflect the policy choices made by their
states’’ and to implement statutory
provisions ‘‘fairly and with due regard
to . . . local conditions . . . and . . .
historical circumstances’’); Taylor v. Vt.
Dep’t of Educ., 313 F.3d 768, 777 (2d
Cir. 2002) (‘‘‘[c]ooperative federalism
. . . allows some substantive
differentiation among the states in the
determination of which . . . theories,
practices, and approaches will be
utilized’’’) (citation omitted).
In sum, Congress directed that BART
determinations are to be made by the
states, allowing the states to make their
own BART choices based on local
conditions and other considerations.
Because EPA may not exercise authority
‘‘in a manner that is inconsistent with
the administrative structure that
Congress enacted into law,’’ ETSI
Pipeline Project v. Missouri, 484 U.S.
495, 517 (1998), EPA may not
disapprove a state BART determination
that complies with the CAA, whether or
not EPA agrees with the state’s decision.
Here, EPA has not demonstrated that
Wyoming’s BART determination
violates the CAA, and for that reason
EPA must approve the BART
determination in the SIP even if it
‘‘disagrees’’ with it. Instead, just as in its
rulemaking at issue in Texas, EPA’s
Proposed Rule ‘‘transgresses the CAA’s
delineated boundaries of [the]
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5061
cooperative relationship’’ between EPA
and the states. 690 F.3d at 686.
Response: EPA disagrees with this
comment. First, the legislative history of
the 1977 Amendments cited by the
commenter is incomplete. The complete
legislative history, when fairly read,
contradicts the commenter and confirms
EPA’s supervisory role in reviewing
state regional haze SIP submittals,
including the state’s initial BART
determinations.
The 1977 Amendments resulted from
a conference agreement that reconciled
the House bill, H.R. 6161, and the
Senate bill, S. 252. The conference
committee agreed to adopt the visibility
protection provisions of section 116 of
the House bill, with certain
modifications. With respect to the BART
provision in what is now section
169A(b)(2)(A) of the Act, the conference
agreement inserted the phrase ‘‘as
determined by the State (or the
Administrator in the case of a plan
promulgated under [section 110(c) of
the Act])’’ in the two places it now
appears in that section.31 The
conference agreement inserted similar
language into the definition of BART in
section 169A(g)(2). The 1977
Amendments also added section
110(a)(2)(J) to the Act, which makes
(among other things) a regional haze SIP
that meets the requirements of part C
relating to visibility protection a
required part of a state’s SIP.
Thus, H.R. 6161 required states to
submit regional haze SIPs containing
BART determinations, but did not
explicitly specify that the BART
determinations should, in the first
instance, be made by the state. The
conference agreement language clarified
that states should make BART
determinations as part of their SIP
submittals, as explained in the
conference report:
The agreement clarifies that the State,
rather than the Administrator, identifies the
source that impairs visibility in the Federal
class I areas identified and thereby fall
within the requirements of this section. . . .
In establishing emission limitations for any
source which impairs visibility, the State
shall determine what constitutes ‘‘best
available retrofit technology’’ (as defined in
this section) in establishing emission
limitations on a source-by-source basis to be
included in the State implementation plan so
as to carry out the requirements of this
section.
31 The conference agreement also revised the
language ‘‘except as otherwise provided pursuant to
subsection (c), a requirement that each major
stationary source (as defined in section 302(o))
which is in existence on the date of enactment of
this section, but which has not been in operation
for more than 15 years as of such date’’ in H.R. 6161
to its present form. This revision does not affect any
issue raised by the commenter.
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H.R. Conf. Rep. 95–564, at 155 (1977)
(emphasis added). In other words,
BART determinations are a required
element (‘‘the State shall determine’’) of
a state’s regional haze SIP submittal (‘‘to
be included in the State implementation
plan’’). However, the conference report
does not say that the state’s
determination is final. For example, it
does not say: ‘‘The State shall
determine, and EPA shall abide by . . .’’
Thus, all the conference report says is
that states must provide BART
determinations as part of the state’s
required regional haze submittal. As the
Tenth Circuit Court of Appeals stated,
‘‘All the conference agreement
referenced by the D.C. Circuit did was
shift the initial responsibility for making
BART determinations from the EPA to
the state. But that does not differ from
other parts of the CAA—states have the
ability to create SIPs, but they are
subject to EPA review.’’ Oklahoma v.
EPA, 723 F.3d 1201, 1209 (10th Cir.
2013).
Another portion of the legislative
history, only partially quoted by the
commenter, confirms EPA’s supervisory
role. Congressman Rogers inserted into
the Congressional Record a Clean Air
Conference Report (1977): Statement of
Intent; Clarification of Select Principles.
123 Cong. Rec. 27070 (daily ed. Aug. 4,
1977) (statement of Cong. Rogers). The
Statement of Intent clarified ‘‘some
important points on the intention and
effect of the conferees action [that] may
have been overlooked or may be unclear
in the text of the conference bill or the
accompanying statement of managers.’’
Id. Under section ‘‘D. Visibility
protection,’’ the first full paragraph
states:
The conferees essentially agreed to the
House provision for visibility protection. The
provision was modified to give States a
greater role in identifying sources which are
contributing (or may in the future contribute)
to visibility problems and in establishing
control requirements for those sources.
However, the conferees rejected a motion to
delete the national goal. The conferees also
rejected a motion to delete EPA’s supervisory
role under section 110 to assure that the
required progress toward that goal will be
achieved by the revised State plan. If a State
visibility protection plan is not adequate to
assure such progress, then the Administrator
must disapprove that portion of the SIP and
promulgate a visibility protection plan under
section 110(c). Thus, visibility protection in
most mandatory federal Class I areas remains
a national commitment, which is nationally
enforceable.
Id. (emphasis added). Thus, the
Statement of Intent, instead of
supporting the commenter’s arguments,
confirms EPA’s supervisory role over
states’ regional haze SIPs, as the
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conferees deliberately rejected a
proposal to remove that supervisory
role.32 The Statement of Intent also only
describes states as having a ‘‘greater
role’’ in determining BART; it does not
describe that role as exclusive.
With respect to Senator Muskie’s
statements, the comment omits a
portion of the legislative history
regarding application of the BART
Guidelines. Oklahoma v. EPA, 723 F.3d
1201, 1209–10 (10th Cir. 2013). The
Tenth Circuit considered those
statements in context and confirmed
EPA’s authority to ensure that state
BART determinations for fossil-fuel
fired power plants having a total
generating capacity greater than 750
MW complied with the BART
Guidelines. Id. With respect to the
separate views of several
Representatives regarding visibility
protection as unrelated to public health,
those views are of a small minority that
opposed any provisions for visibility
protection whatsoever. H.R. Rep. 95–
294, at 530 (1977). Their views did not
carry the day and, in any case, are
irrelevant to the question of EPA’s
supervisory role.
With respect to the remainder of the
comment regarding various court
opinions, we have responded to similar
comments elsewhere. EPA’s action here
violates neither the holdings in
American Corn Growers and UARG
regarding the RHR, nor the generic
remarks regarding cooperative
federalism in the other cited cases.
Comment: Although EPA cites
‘‘errors’’ made by Wyoming in its BART
determination for Laramie River Station,
EPA has not—and cannot—demonstrate
that any of these alleged ‘‘errors’’
represents a violation of the CAA. These
are technical disagreements over
judgments committed by Congress to the
states—not grounds for EPA to step in
and dictate a technology choice. Section
169A does not confer any authority
upon EPA to make a BART
determination when the state has made
one. Once the state makes a BART
determination, EPA’s authority to
review it in the SIP review process is
very limited. Section 110 mandates that
‘‘[EPA] shall approve such [SIP]
submittal as a whole if it meets all of the
applicable requirements of this
chapter.’’ 42 U.S.C. 7410(k)(3). See also
32 In context, the statement regarding ‘‘required
progress’’ must be understood to include BART.
First, the preceding portion of the statement
discusses States’ roles in determining controls
generally under 169A(b)(2), ‘‘including’’ the BART
requirements in 169A(b)(2)(A). The portion about
EPA’s supervisory role in assuring ‘‘required
progress’’ should be understood to apply to all of
169A(b)(2), including subsection 169A(b)(2)(A).
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Forest Guardians v. Babbitt, 174 F.3d
1178, 1187 (10th Cir. 1999) (‘‘The
Supreme Court and this circuit have
made clear that when a statute uses the
word ‘shall,’ Congress has imposed a
mandatory duty upon the subject of the
command.’’).
As the Fifth Circuit recently
expressed, ‘‘the Act confines the EPA to
the ministerial function of reviewing
SIPs for consistency with the Act’s
requirements,’’ and ‘‘[t]h[e] statutory
imperative [of section 110(k)(3)] leaves
the agency no discretion to do anything
other than ensure that a state’s
submission meets the CAA’s
requirements and, if it does, approve it.’’
Luminant, 675 F.3d at 921, 926. See also
id. at 932 (‘‘If [the State’s] regulations
satisfy th[e] basic requirements [of the
CAA], the EPA must approve them, as
section 7410(k)(3) requires. That is the
full extent of the EPA’s authority in the
SIP-approval process because that is all
the authority that the CAA confers.’’)
Texas, 690 F.3d at 676 (‘‘[I]f a SIP or a
revised SIP meets the statutory criteria
of the CAA, then the EPA must approve
it.’’); Bethlehem Steel Corp. v. Gorsuch,
742 F.2d 1028, 1036 (7th Cir. 1984)
(EPA’s SIP disapproval power is
‘‘constrained by the substantive criteria
in 42 U.S.C. 7410(a)(2)(A)–(K)’’); Fla.
Power & Light Co. v. Costle,650 F.2d
579, 581 (5th Cir. 1981) (‘‘If a SIP or a
revised SIP meets the statutory criteria.
. . the EPA must approve it.’’)
(citations omitted).
Since Wyoming’s BART decision for
Laramie River Station, along with its
associated SIP revision, meets the
requirements set forth in the CAA, EPA
has no discretion and must approve it
in its entirety. As the Supreme Court
explained in the NAAQS context: The
Act gives the Agency no authority to
question the wisdom of a state’s choices
of emission limitations if they are part
of a plan which satisfies the standards
of section 110(a)(2), and the Agency
may devise and promulgate a specific
plan of its own only if a state fails to
submit an implementation plan which
satisfies those standards. Section 110(c).
Thus, so long as the ultimate effect of a
state’s choice of emission limitations is
compliance with the national standards
for ambient air, the state is at liberty to
adopt whatever mix of emission
limitations it deems best suited to its
particular situation. Train, 421 U.S. at
79; see also Virginia, 108 F.3d at 1408–
10 (confirming that the 1977
Amendments to section 110 did not
alter the division of responsibilities
recognized in Train). Accord Union
Elec. Co. v. EPA, 427 U.S. 246, 267
(1976) (‘‘[T]he State has virtually
absolute power in allocating emission
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limitations so long as national standards
are met.’’).
The fact that states must propose SIP
revisions ‘‘as may be necessary’’ to
achieve reasonable progress does not
mean that EPA has authority to
countermand the textual commitment to
leave BART decisions to the states. The
D.C. Circuit interpreted similar language
in Section 110(k)(5) to constrain EPA’s
authority over SIP approval and
disapproval. See Virginia, 108 F.3d at
1409. The SIP call provisions of Section
110(k)(5) similarly state that when a SIP
is inadequate ‘‘[EPA] shall require the
State to revise the plan as necessary to
correct such inadequacies.’’ But the
Virginia court rejected the agency’s
expansive view of this phrase as
authority to impose specific control
measures for specific emission sources:
EPA apparently thinks the ‘‘as
necessary’’ language in section 110(k)(5)
altered the division of responsibilities
between the states and the agency. We
suppose the idea is that because section
110(k)(5) empowers EPA to ‘‘require the
State to revise the plan as necessary to
correct’’ inadequacies, it empowers EPA
to require the state to include particular
control measures in the revised plan.
There is nothing to this. Id. at 1409.
Instead, the court concluded that this
phrase ‘‘keep[s] EPA within bounds.’’
Id. at 1410. Imposition of a FIP is
intended to be a drastic penalty,
imposed only where a state fails to
provide the air pollution reductions
required by the CAA, as ‘‘it rescinds
state authority to make the many
sensitive and policy choices that a
pollution control regime demands.’’’ Id.
at 1406–07 (citation omitted). The court
also expressed, in rejecting EPA’s
interpretation of Section 110(k)(5), that
‘‘[w]e would have to see much clearer
language to believe a statute allowed a
federal agency to intrude so deeply into
state political processes.’’ Id. at 1410.
EPA must therefore approve the
Wyoming SIP as it relates to BART at
Laramie River Station, as compliance
with the law is all that is required. See
Luminant, 675 F.3d at 926 (EPA’s
reliance on factors other than
compliance with the CAA in
disapproving a SIP violated the
Administrative Procedures Act (APA),
as it was ‘‘in excess of statutory
authority,’’ and was arbitrary and
capricious, as it considered ‘‘a ‘factor[ ]
which Congress has not intended [the
EPA] to consider’ ’’) (quoting 5 U.S.C.
706(2)(C) and State Farm, 463 U.S. at
43) (alteration in original).
Response: EPA is not substituting its
judgment on required technology for the
State’s in this decision. Rather, we have
determined that Wyoming’s analysis
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and determinations were not performed
consistent with the CAA and
implementing regulations. EPA
considered the State’s SIP as well as the
most recent information submitted by
Basin Electric and others for the
Laramie River BART units. As
explained in detail in our response to
similar comments in the BART section
of this document, we found Basin
Electric’s estimates of SCR capital cost
deficient in a number of respects,
specifically: (1) Inadequate explanation
for the high labor rates that were
assumed when compared to published
labor rates; (2) High overtime and per
diem costs without sufficient
explanation; (3) Apparent duplication of
costs associated with General Facilities;
(4) Inclusion of AFUDC; (5) Apparent
duplication of contingencies and other
cost adders; and (6) Addition of
unnecessary SO3 mitigation system. All
of these contributed to excessively high
capital cost. Sargent & Lundy also
assumed excessively high cost for
replacement catalyst, which contributes
to high operating cost. As we explain
elsewhere, these deficiencies are
inconsistent with the CAA and RHR.
We responded to similar comments
regarding the remaining comments
above and elsewhere in this document.
Comment: To the extent that the
Supreme Court in ADEC suggested it
was adopting a ‘‘reasonableness’’
standard, and did not expressly state
that what it was doing was adopting an
‘‘arbitrary and capricious’’ standard, the
Supreme Court and other federal courts
have confirmed that these two standards
are nearly interchangeable. Moreover, to
the extent that there is any perceivable
difference between the two standards,
these cases confirm that ‘‘reasonable’’
means something more like ‘‘not
arbitrary and capricious’’ than ‘‘not
what EPA would prefer.’’ See, e.g.,
Marsh v. Ore. Nat. Res. Council, 490
U.S. 360, 377 n.23 (1989) (‘‘as some of
the[ ] courts have recognized, the
difference between the ‘arbitrary and
capricious’ and ‘reasonableness’
standards is not of great pragmatic
consequence’’) (citing cases); Ridenour
v. Kaiser-Hill Co., 397 F.3d 925, 939
(10th Cir. 2005) (‘‘When a party
challenges agency action as arbitrary
and capricious the reasonableness of the
agency’s action is judged in accordance
with its stated reasons.’’) (citation
omitted); Amisub (PSL), Inc. v. Colo.
Dep’t of Social Servs., 879 F.2d 789, 800
(10th Cir. 1989) (the court’s role in
applying the arbitrary and capricious
review standard is ‘‘to determine if there
was a reasonable factual basis to
support’’ the agency’s findings); United
States v. Minnkota Power Co-Op Inc.,
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831 F. Supp.2d 1109, 1119 (D.N.D.
2001) (expressing that the
‘‘reasonableness’’ standard employed by
the ADEC Court is the same as the
‘‘arbitrary and capricious’’ standard).
Under the APA’s arbitrary and
capricious review standard,
administrative action is presumed valid,
and review of that action is ‘‘ ‘narrow in
scope.’ ’’ Copar Pumice Co. v. Tidwell,
603 F.3d 780, 793 (10th Cir. 2010)
(citation omitted). ‘‘Agency action is
arbitrary and capricious only if the
agency ‘has relied on factors which
Congress has not intended it to
consider, entirely failed to consider an
important aspect of the problem, offered
an explanation for its decision that runs
counter to the evidence before the
agency,’ or if the agency action ‘is so
implausible that it could not be ascribed
to a difference in view or the product of
agency expertise.’ ’’ Id. (quoting State
Farm, 463 U.S. at 43). A court will not
‘‘substitute [its] judgment for that of the
agency,’’ but will only consider whether
the agency provided a ‘‘reasoned basis’’
for its action. Id. at 793–94 (quoting
State Farm, 463 U.S. at 43). The courts
also have developed a series of related
standards designed to ensure that courts
afford appropriate deference to an
agency’s technical and policy choices,
and refrain from substituting the courts’
judgment for that of the agency. For the
same reasons that arbitrary and
capricious review should apply to EPA’s
review of a state BART determination,
these related standards also should
apply: (1) The State’s BART decision is
presumed valid, and EPA bears the
burden of proving otherwise, see
Hillsdale Envt’l Loss Prevention, Inc. v.
U.S. Army Corps of Eng’rs, 702 F.3d
1156, 1165 (10th Cir. 2012); (2) the
State’s decision may be set aside ‘‘ ‘only
for substantial procedural or substantive
reasons,’ ’’ id. (citation omitted); and (3)
where experts might disagree about a
technical issue, EPA must defer to the
‘‘reasonable opinions’’ of the States’
experts, see Colo. Wild v. U.S. Forest
Serv., 435 F.3d 1204, 1214 (10th Cir.
2011). See also Minnkota Power, 831 F.
Supp.2d at 1119–20 (the same
principles that apply to court review of
agency action under the APA apply to
EPA challenges to state BACT
determinations).
EPA’s proposal does not formulate or
apply these standards, and thus does
not establish grounds to overrule the
State’s BART determination for Basin
Electric’s Laramie River Station. EPA
has not found that Wyoming ‘‘entirely
failed to consider an important aspect of
the problem,’’ considered factors
Congress did not intend it to consider,
or reached a decision ‘‘so implausible’’
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as to be arbitrary. Nor has EPA found
that Wyoming’s explanation for its
decision runs counter to the evidence
that was before it. Instead, EPA
complains of minor alleged deviations
from broadly worded and highly flexible
guidelines deliberately designed to be
consulted but not rigidly adhered to in
any event. EPA therefore must approve
the State’s BART decision for Laramie
River, as any other result represents
EPA’s substitution of its judgment over
Wyoming’s, which EPA has no statutory
authority to do.
Response: EPA disagrees with this
comment, which is based on a
fundamental misunderstanding of EPA’s
role. In acting on a state’s SIP submittal,
EPA does not sit in the position of a
reviewing federal court. Instead, EPA is
the agency entrusted by Congress with
administering the CAA. Thus Congress
has ‘‘vested EPA with explicit and
sweeping authority to enforce CAA
requirements’’ and requires that ‘‘EPA
step in to ensure that the statutory
requirements are honored.’’ Alaska
Dep’t of Envtl. Conservation v. EPA, 540
U.S. 461, 490 (2004). Reviewing courts,
on the other hand, ‘‘are not experts in
the field’’ and thus defer to decisions by
‘‘the agency charged with the
administration of the statute.’’ Chevron,
Inc. v. Natural Res. Def. Council, 467
U.S. 837, 866 (1984).
In the context of acting on a regional
haze SIP, EPA must assure that it meets
the requirements of the Act and the
RHR, including requirements regarding
BART. EPA—unlike a reviewing court—
is not required to defer to the state’s
technical judgments. Instead, EPA is not
only authorized, but required to exercise
independent technical judgment in
evaluating the adequacy of a state’s
regional haze SIP, including its BART
determinations, just as EPA must
exercise such judgment in evaluating
other SIPs. In evaluating other SIPs,
EPA’s role is always to make a judgment
about SIP adequacy, not just to meet and
maintain the NAAQS, but also to meet
other requirements that do not have a
numeric value. In this case, Congress
did not establish NAAQS by which to
measure visibility improvement;
instead, it established a reasonable
progress standard and required that EPA
assure that such progress be achieved.
Here, contrary to the commenter’s
assertion, we are exercising judgment
within the parameters laid out in the
CAA and our regulations. Our
interpretation of our regulations and of
the CAA, and our technical judgments,
are entitled to deference. See, e.g.,
Michigan Dep’t. of Envtl. Quality v.
Browner, 230 F.3d 181 (6th Cir. 2000);
Connecticut Fund for the Env’t., Inc. v.
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EPA, 696 F.2d 169 (2nd Cir. 1982);
Voyageurs Nat’l Park Ass’n v. Norton,
381 F.3d 759 (8th Cir. 2004); Mont.
Sulphur & Chem. Co. v. EPA, 666 F.3d
1174 (9th Cir. 2012).
The comment does not cite to
anything in the ADEC opinion (or, for
that matter, in the CAA itself) that
suggests EPA must, in reviewing a SIP
submittal, adopt the APA standards of
review. Instead, in ADEC the Supreme
Court upheld EPA’s position that the
State permitting agency’s BACT
determination ‘‘did not qualify as
reasonable in light of the statutory
guides.’’ Alaska Dep’t of Envtl.
Conservation v. EPA, 540 U.S. 461, 484
(2004). The mere coincidence that some
courts have described the APA
standards of review as essentially a
‘‘reasonableness’’ standard does not
compel EPA to adopt the APA standards
of review; nor did the ADEC opinion
suggest EPA must do so. As explained
above, a fundamental difference
between EPA and a reviewing court is
that courts lack technical expertise and
so generally defer to agency technical
judgments; on the other hand, EPA is
the expert agency entrusted by Congress
with administering the CAA and
exercising its best technical judgment in
doing so. Another fundamental
difference is that a reviewing court is
limited to the record compiled by the
administrative agency, but EPA in its
review of a SIP submittal is not limited
just to the record compiled by the state
agency, and may supplement the record
with (among other things) EPA’s own
expert reports and analyses. In fact, if
the cases cited by the commenter
discussing the APA standard of review
stand for anything, it is the proposition
that if and when EPA’s action on this
SIP submittal is subject to judicial
review, the court will base its decision
on the record compiled by EPA and give
appropriate deference to EPA’s
technical judgments and interpretations
of the Act and the RHR. Accordingly,
the Eighth and Tenth Circuit Court of
Appeals have applied the APA standard
of review to EPA’s actions on other
regional haze SIP submittals. See
Oklahoma v. EPA, 723 F.3d 1201 (10th
Cir. 2013), North Dakota v. EPA, 730
F.3d 750 (8th Cir. 2013).
The discussion of the standard of
review in the district court’s order and
opinion in United States v. Minnkota
Power Co-op., Inc., 831 F. Supp. 2d
1109 (D.N.D. 2011), cited by commenter,
is not to the contrary. The district
court’s opinion first quotes the ADEC
opinion for the proposition that the
question presented is whether ‘‘the state
agency’s BACT determination was
reasonable, in light of the statutory
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guides and the state administrative
record.’’ Id. at 1119 (emphasis added).
The district court’s opinion then again
quotes the ADEC opinion: ‘‘We apply
the familiar default standard of the
Administrative Procedure Act . . . and
ask whether the Agency’s action was
‘arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law.’ ’’ Id. (emphasis
added). In the context of the ADEC
opinion, the Agency referred to by the
Supreme Court in the second quote is
EPA, not the State agency. The district
court’s opinion then continues by
quoting a separate Supreme Court
opinion discussing the similarities of
the arbitrary and capricious standard
and the reasonableness standard. This
fails to establish any sort of connection
between the APA standard and EPA’s
review of a state determination. In
addition, Minnkota Power took place in
the context of an enforcement action,
not action on a SIP submittal. The EPA
had entered into a consent decree that
(among other things) ‘‘establishe[d] the
standard of review governing the EPA’s
challenge to the North Dakota NOX
BACT Determination.’’ Id. at 1112. The
consent decree provided that ‘‘[t]he
disputing Party shall bear the burden of
proof throughout the dispute resolution
process.’’ Thus, Minnkota Power has
nothing to say about use of the APA
standard in EPA’s review of a state’s
BART determination.
Comment: In applying the arbitrary
and capricious standard, EPA should
accord the same deference to a state’s
BART determination that courts accord
to an agency decision under the
National Environmental Policy Act
(NEPA), which, like section 169A, ‘‘does
not mandate particular results, but
simply prescribes the necessary
process.’’ Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350
(1989). See also 42 U.S.C. 4332(2)(C)
(any agency contemplating a ‘‘major
Federal action [that] significantly
affect[s] the quality of the human
environment’’ must prepare an
environmental impact statement [EIS]
analyzing the action’s environmental
effects). Under NEPA, ‘‘[t]he role of the
courts is simply to ensure that the
agency has adequately considered and
disclosed the environmental impact of
its actions and that its decision is not
arbitrary or capricious.’’ Baltimore Gas
& Elec. Co. v. NRDC, 462 U.S. 87, 97–
98 (1983).
The purpose of this deferential review
standard under NEPA is to prevent a
court from ‘‘substitut[ing] its judgment
for that of the agency.’’ Kleppe v. Sierra
Club, 427 U.S. 390, 410 n.21 (1976). As
the Supreme Court explained in Kleppe,
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‘‘[t]he only role for a court is to insure
that the agency has taken a ‘hard look’
at environmental consequences; it
cannot ‘interject itself within the area of
discretion of the executive as to the
choice of the action to be taken.’’’ Id.
(citing NRDC v. Morton, 458 F.2d 827,
838 (D.C. Cir. 1972)).
Under this review standard, ‘‘even if
[the reviewing court] would have made
a different choice had the matter been
before [the court] de novo,’’ the court
‘‘cannot displace the agencies’ choice’’
between conflicting views, evidence,
data, and scientific opinions. Custer
Cnty. Action Ass’n v. Garvey, 256 F.3d
1024, 1036 (10th Cir. 2001). Thus, even
in the face of technical objections, a
court will uphold the agency’s action so
long as it is supported by substantial
evidence in the administrative record, is
adequate to foster informed public
participation and decision making, and
is not otherwise arbitrary or capricious.
Id.
Moreover, as the courts have
repeatedly recognized, ‘‘[d]eficiencies in
an EIS that are mere ‘flyspecks’ and do
not defeat NEPA’s goals of informed
decision making and informed public
comment will not lead to reversal.’’’
WildEarth Guardians v. NPS, 703 F.3d
1178, 1183 (10th Cir. 2013) (quoting
New Mexico v. BLM, 565 F.3d 683, 704
(10th Cir. 2009)). See also Custer Cnty,
256 F.3d at 1035 (‘‘Our objective is not
to ‘fly speck’ the [EIS], but rather, to
make a ‘pragmatic judgment whether
the [EIS]’s form, content and
preparation foster both informed
decision-making and informed public
participation.’’’) (citation omitted).
The same principles apply here,
where Congress has expressly delegated
the BART decision to the states, did not
mandate the states to reach a specific
outcome, and established only a
decision making process for the states to
follow—not a required outcome. If the
state considered all five statutory factors
to arrive at a result that improves
visibility, and its decision is not
arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law, EPA must affirm
the BART selection—even if EPA would
or could have made a different
selection.
Response: EPA disagrees with this
comment. The comment does not
identify anything in the NEPA court
decisions that demonstrates that those
decisions are applicable to EPA’s review
of a SIP submittal. In fact, Section 7(c)
of the Energy Supply and
Environmental Coordination Act of
1974 (15 U.S.C. 793(c)(1)) exempts
actions under the CAA from the
requirements of NEPA. Specifically, this
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section states that ‘‘[n]o action taken
under the CAA [42 U.S.C. 7401 et seq.]
shall be deemed a major Federal action
significantly affecting the quality of the
human environment within the meaning
of the National Environmental Policy
Act of 1969 [42 U.S.C. 4321 et seq.].’’
While the standard of review for EPA’s
SIP and FIP decisions may be similar to
that under NEPA,33 the NEPA decisions
simply are not applicable in the CAA
context.
Furthermore, NEPA relies solely on
‘‘procedural mechanisms—as opposed
to substantive, result-based standards.’’
Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 353 (1989).
Unlike NEPA, the CAA’s regional haze
program has specific substantive
requirements, and EPA must ensure that
SIP submittals meet the requirements of
the Act, including the substantive
provisions of the regional haze program.
See CAA Section 110(a)(2)(J) (SIP
submittals must meet applicable
requirements of Part C of title I,
including visibility protection). As the
Eighth Circuit Court of Appeals stated:
‘‘EPA is left with more than the
ministerial task of routinely approving
SIP submissions.’’ North Dakota v. EPA,
730 F.3d 750 (8th Cir. 2013) (emphasis
added).
Comment: One commenter asserted
that the U.S. Supreme Court and the
lower federal courts have long
recognized and applied the principle of
‘‘harmless error’’ where an agency may
have committed an error, but that error
did not affect the outcome of its
decision. See, e.g., Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551
U.S. 644, 659 (2007); Hillsdale, 702 F.3d
at 1165. See generally 5 U.S.C. 706
(‘‘[D]ue account shall be taken of the
rule of prejudicial error.’’).
The commenter argued that the courts
also have long recognized the related
principle that agencies may ‘‘overlook
circumstances that in context may fairly
be considered de minimis,’’ as part of
the broad notion that ‘‘the law does not
concern itself with trifling matters.’’
Alabama Power Co. v. Costle, 636 F.2d
323, 360 (D.C. Cir. 1979). Thus, for
instance, the D.C. Circuit rejected a
33 By statute, EPA’s promulgation of a FIP must
be upheld unless the court determines EPA’s action
was ‘‘arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law.’’ CAA
Section 307(d)(1)(B), (9)(A). There is no statutory
standard of review governing EPA’s disapproval of
a SIP, however, the Supreme Court has held that
where the Clean Air Act does not specific a
standard for judicial review, ‘‘we apply the familiar
default standard of the Administrative Procedure
Act . . . and ask whether the agency’s action was
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’’ ADEC at
496–97.
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challenge to a Federal Aviation
Administration rule where the agency
had used ‘‘inappropriate guidelines for
measuring the effects of noise’’ in its
determination that a proposed airport
site would not result in any ‘‘use’’ of a
nearby wildlife refuge. Allison v. Dep’t
of Transp., 908 F.2d 1024, 1026 (D.C.
Cir. 1990). The court cited the APA
provision requiring consideration of
‘‘prejudicial error,’’ and expressed that
‘‘[a] court should not upset a decision
because of errors that are not material.’’
Id. at 1029 (citations omitted). See also
Grunman Data Sys. Corp. v. Widnall, 15
F.3d 1044, 1048 (Fed. Cir. 1994)
(rejecting bid protest although agency
may have violated accounting principles
in its analysis of the best value bid, as
any accounting errors were ‘‘de
minimis,’’ and stating that ‘‘overturning
awards on de minimis errors wastes
resources and time, and is needlessly
disruptive of procurement activities and
governmental programs and
operations’’) (citation omitted).
Finally, the commenter argued, the
courts have repeatedly held that agency
action should not be reversed due to
mere calculation errors that do not
render a rule arbitrary and capricious.
See, e.g., Michigan v. EPA, 213 F.3d
663, 691 (D.C. Cir. 2000) (rejecting
challenge to EPA decision despite error
in calculation); Chem. Mfrs. Ass’n v.
EPA, 870 F.2d 177, 241, clarified on
reh’g, 885 F.2d 253 (5th Cir. 1989)
(same); CPC Int’l, Inc. v. Train, 540 F.2d
1329, 1343–44 (8th Cir. 1976) (same).
The commenter stated that these same
principles should apply to EPA’s review
of the State’s BART determinations,
such that EPA has no authority to
disapprove the State’s decisions if a
deviation from the BART Guidelines
and CCM was merely de minimis and at
most harmless error that did not affect
the State’s selection of BART. Indeed,
EPA’s approach itself suggests that the
BART Guidelines and CCM were
intended to be flexible, and that EPA’s
review of compliance with their
provisions is subject to a materiality
standard. For instance, in the Proposed
Rule, EPA proposes to disapprove
certain BART determinations based on
purported deviations from the BART
Guidelines and CCM in assessing cost
and visibility, yet it also proposes to
approve other BART determinations
‘‘because [it has] determined that the
State’s conclusions were reasonable
despite the cost and visibility errors’’
identified by EPA. 78 FR 34750. And,
while the Tenth Circuit’s decision in
Oklahoma v. EPA is not yet final, as
petitions for rehearing may yet be filed,
that court similarly suggested that there
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was a materiality element to a state’s
compliance with the BART Guidelines,
noting, in particular, that the State’s cost
estimates were ‘‘more than ten times
EPA’s stated average costs per ton for
th[e] technology, and nearly five times
as much as the upper limit of EPA’s
expected cost range.’’ —F.3d—, 2013
U.S. App. LEXIS 14634, at *25 (10th Cir.
July 19, 2013). Notably, that case did not
involve SCR technology, which the
CCM affords a greater amount of
flexibility in assessing, and the State
had failed to note and explain its
deviations from the CCM.
By applying these principles here, the
commenter asserted, any deviation from
the BART Guidelines and CCM was de
minimis, and mere harmless error.
Certainly, EPA has not shown that the
State would have made a different
BART selection had it assessed the cost
and visibility factors in the manner EPA
suggests—particularly as the selection of
BART must be made by weighing all
five factors, and as the differences
between the State’s and EPA’s
assessments of cost and visibility are not
so substantial as to necessitate a
different result. In other states, EPA has
acknowledged that a state’s BART
determination may be disapproved on
account of a claimed error only if the
error would have changed the BART
determination. In approving Colorado’s
regional haze SIP, EPA did not
disapprove the BART determination for
the Martin Drake power plant, despite
EPA’s disagreement regarding the
control efficiency of SCR because the
discrepancy would not have changed
the outcome. 77 FR 76871, 76875–76
(Dec. 31, 2012) (‘‘[We] find that it was
not unreasonable for Colorado to use
0.07 lb/MMBtu to model the predicted
visibility improvement from SCR.
Moreover, while we do agree that
assuming a control efficiency of 0.05 lb/
MMBtu would have resulted in greater
modeled visibility benefits, we do not
agree that the difference in visibility
benefits would have led Colorado to a
different conclusion given the
magnitude of the benefits associated
with SCR.’’). The commenter advocated
that EPA should take a similar approach
in Wyoming.
The commenter finished by stating
that if there is a question as to whether
the State might have made a different
BART selection had it assessed cost and
visibility in the manner suggested by
EPA, EPA should return the issue to the
State to reweigh the BART factors with
that information. See SKF USA Inc. v.
United States, 254 F.3d 1022, 1029 (Fed.
Cir. 2001) (courts may remand matters
to the agency upon request to correct
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‘‘clerical errors, transcription errors, or
erroneous calculations’’).
Response: The cases cited to by the
commenter all concern standards by
which courts evaluate agency action,
not standards by which EPA, an
administrative agency, evaluates SIP
submissions for compliance with the
requirements of the CAA. The cases are
therefore inapposite. Nevertheless, in
situations where a state’s SIP reaches a
reasonable result overall despite
violations of certain statutory or
regulatory requirements, EPA believes
that approving the SIP is sometimes a
better use of scarce administrative
resources and more in line with
principles of cooperative federalism
than promulgating a FIP. This approach
is arguably similar to the principle of
‘‘harmless error’’ that courts adhere to in
the context of judicial review.
In this situation, however, the errors
committed by Wyoming in its regional
haze SIP were neither harmless nor de
minimis. As we have explained
previously, because Wyoming did not
properly calculate the costs of the
various control options or accurately
estimate the visibility improvement
associated with these controls, the
State’s ultimate selection of BART for
several EGUs did not represent the best
system of continuous emission
reduction. As the Eighth and Tenth
Circuits have recently held, EPA acts
within its power under section 169A of
the CAA when it rejects a BART
determination on the basis that a state
did not properly take into consideration
the costs of compliance as a result of
methodological or data flaws. See
Oklahoma v. EPA, 723 F.3d 1201, 1212
(10th Cir. 2013); North Dakota v. EPA,
730 F.3d 750 (8th Cir. 2013). This same
reasoning applies equally to the other
statutory BART factors, such as
visibility improvement.
We also disagree with the commenter
that our action on the Colorado regional
haze SIP implies that a similar outcome
is warranted here. In that action, we
stated that ‘‘it was not unreasonable for
Colorado to use 0.07 lb/MMBtu to
model the predicted visibility
improvement from SCR.’’ 77 FR 76871,
76875 (Dec. 31, 2012). Thus, we did not
disagree with Colorado’s choice of
control efficiency, as the commenter
claims, and the situation bears no
relationship to this one, where we have
carefully explained our disagreement
with multiple aspects of Wyoming’s
NOX BART determinations.
Finally, we decline to ‘‘return the
issue to the State,’’ as the commenter
proposes. At this time, the Wyoming
regional haze SIP is many years
overdue, and the deadline for EPA to
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issue a FIP has long since passed. We
note, however, that Wyoming is free to
submit a SIP revision at any time that,
if approved, could replace all or a
portion of EPA’s FIP.
Comment: EPA’s proposal to
disapprove Wyoming’s BART
determination for Laramie River not
only overrides the State’s technical
judgment but also renders moot with a
stroke of a pen the extensive judicial,
administrative, and political processes
developed by the State to implement its
obligations under the CAA as a separate
sovereign. Wyoming has enacted a
robust and independent set of
administrative and judicial procedures
to review and potentially overturn
BART decisions made by the State.
These procedures are part of the State’s
SIP expressly approved by EPA, 40 CFR
52.2620, making them federally
enforceable.
Wyoming’s air quality regulations
require a source subject to BART to
apply for and obtain a BART permit. In
this case, Laramie River Station’s BART
permit was issued pursuant to Wyoming
Air Quality Standards and Regulations
(WAQSR) Chapter 6, Sections 2 and 9.
The rules requiring BART permits in
Wyoming were adopted on October 9,
2006 as a new section to meet the
requirements of EPA’s RHR. Chapter 6
requires facilities seeking permits to
comply with all the rules and
regulations of Wyoming. Chapter 6,
Section 9 of the Air Quality Division’s
rules and regulations govern BART
permits. Section 9(e)(iv) requires that
the opportunity for public comment on
BART permits follow the procedures
specified in Chapter 6, Section 2(m).
That section, in turn, establishes a
notice and comment procedure that
specifically requires a copy of the public
notice to be sent to EPA. Thus, EPA
approved Wyoming’s plan that
specifically contemplates EPA’s
inclusion in State administrative review
proceedings. See 40 CFR 52.2620; see
also US Magnesium, LLC v. EPA, 690
F.3d 1157, 1159 (10th Cir. 2012) (EPA’s
approval of a State’s SIP gave the SIP
the force and effect of federal law).
Here, EPA received the required
notice at every step of the proceedings.
EPA, however, chose to participate to
only a limited extent. After submitting
August 3, 2009 comments to the State’s
BART Application Analysis and
proposed permit and October 26, 2009
comments to Wyoming’s draft regional
haze SIP, EPA excised itself from the
process. Despite its prior comments on
Basin Electric’s BART permit and the
regional haze SIP, EPA did not seek to
intervene in Basin Electric’s
administrative appeal to the
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Environmental Quality Council or
comment on Basin Electric’s settlement
agreement with the Environmental
Quality Council. EPA could have
advised the Environmental Quality
Council that it believed the proposed
settlement violated the CAA or was
otherwise arbitrary and capricious, but
it did not. Instead, illustrating its
disregard for State primacy, EPA now
proposes to disapprove the NOX BART
emissions limits in the settlement
agreement and final SIP, years after the
administrative process concluded.
As the dissenters in ADEC described,
EPA should not be permitted to avoid a
‘‘more painstaking state process by a
mere stroke of the pen under the
agency’s letterhead.’’ 540 U.S. at 509
(Kennedy, J., dissenting) (discussing an
analogous process for BACT
determinations). The CAA’s ‘‘strict’’
division of authority creates a ‘‘statutory
federalism bar [that] prohibits EPA from
using the SIP process to force States to
adopt specific control measures.’’ EME
Homer City Generation, L.P. v. EPA, 696
F.3d 7, 29 (D.C. Cir. 2012) (citing
Virginia, 108 F.3d at 1410). But that is
precisely what EPA seeks to do here.
EPA’s approach both confuses the CAA
‘‘with a general administrative law
statute like the [APA]’’ and upsets ‘‘the
balance between State and Federal
Governments.’’ See ADEC, 540 U.S. at
507–17 (Kennedy, J., dissenting).
Simply put, it is inappropriate for EPA
to dodge the administrative and judicial
review process established in the State
of Wyoming through overturning of
Wyoming’s BART decision by
administrative fiat. See id. at 510
(Kennedy, J., dissenting). It was only
after Wyoming submitted its regional
haze SIP to EPA that EPA announced it
found the settlement ‘‘unreasonable’’
and something with which it
‘‘disagreed.’’ Based upon these
assertions, and without demonstrating
that the BART permit actually violates
the CAA, EPA now proposes to void all
the extensive administrative
proceedings, processes, comment
periods, and permit finality accorded
under State law.
This improperly impinges upon state
authority. Under the regional haze
program, deference to state authority is
far more compelling than issues related
to public health under the BACT
program, and so the Supreme Court’s
holding in ADEC that EPA may not
require ‘‘recourse to state processes’’ is
inapplicable to BART decisions. ADEC,
541 U.S. at 492. EPA should conduct
itself in accordance with the spirit of its
representation to the Supreme Court
that it has never sought to override a
state court judgment, and should not
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seek to override a state BART decision
that has been litigated to administrative
conclusion under state law, particularly
where, as here, EPA never advised the
State adjudicators or the parties to the
State proceedings that it considered the
permit to be invalid under the CAA.
EPA could have participated in the State
administrative appeal proceeding or, at
a minimum, appeared in the proceeding
to register an objection to the settlement
agreement. Having elected not to do so,
EPA should respect the result of the
State’s process. Alternatively, EPA is
precluded from overruling the Laramie
River BART permit decision that
resulted from that process. ADEC, 540
U.S. at 491 n.14. EPA had notice and
ample opportunity to contest the
appropriateness and legality of the
BART permit in Wyoming, but simply
chose not to do so.
EPA is not free to let parties like Basin
Electric spend thousands of dollars and
years of effort resolving the terms of a
BART permit, only to find the process
wasted because EPA disagrees yet chose
to ignore multiple notices of the State
proceedings. Absent application of
claim preclusion under these
circumstances, EPA could effectively
‘‘rescind[ ] state authority to make the
many sensitive and policy choices that
a pollution control regime demands.’’
Virginia, 108 F.3d at 1406–07 (citation
omitted). Here, EPA does not intrude
upon state political processes; it ignores
them, upsetting ‘‘the balance between
State and Federal Governments.’’ See
ADEC, 540 U.S. at 507–17 (Kennedy, J.,
dissenting).
EPA’s interference with State’s
prerogatives also violates the Tenth
Amendment to the United States
Constitution. ‘‘[T]he Tenth Amendment
confirms that the power of the Federal
Government is subject to limits that
may, in a given instance, reserve power
to the States.’’ New York v. United
States, 505 U.S. 144, 157 (1992). See
also U.S. Const. amend. X (‘‘The powers
not delegated to the United States by the
Constitution, nor prohibited by it to the
States, are reserved to the States
respectively, or to the people.’’). Here,
EPA’s rejection of Wyoming’s BART
decision and imposition of its own not
only overrides Congress’ resolution to
leave localized BART analyses in the
hands of the states, but also infringes on
Wyoming’s (and its citizens’) Tenth
Amendment right to have those
decisions made and adjudicated by the
State. See Arlington, 133 S.Ct. at 1874
(although Chevron deference generally
applies to an agency’s interpretation of
the scope of its authority, ‘‘[w]here
Congress has established a clear line,
the agency cannot go beyond it; and
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5067
where Congress has established an
ambiguous line, the agency can go no
further than the ambiguity will fairly
allow’’); Hodel v. Va. Surface Min. &
Reclamation Ass’n, 452 U.S. 264, 289
(1981) (statute survived Tenth
Amendment scrutiny because it
‘‘establishes a program of cooperative
federalism that allows the States, within
limits established by federal minimum
standards, to enact and administer their
own regulatory programs, structured to
meet their own particular needs,’’
instead of ‘‘commandeer[ing] the
legislative processes of the States by
directly compelling them to enact and
enforce a federal regulatory program’’).
Earlier comments provided similar
arguments, by noting that Wyoming
issued its BART Application Analysis
and proposed permit on May 28, 2009,
and accepted public comments on its
analysis and proposed permit for a
period of 60 days, followed by a public
hearing on August 6, 2009. Numerous
comments were received, including
comments from EPA dated August 3,
2009. EPA did not comment that
Wyoming’s proposed BART
determination violated the CAA. Nor
did EPA identify any action taken by
Wyoming in connection with the permit
that was arbitrary or capricious. While
EPA regularly encouraged Wyoming to
consider both SNCR and SCR
technologies, at no point did EPA advise
Wyoming that BART controls of LNBs
and OFA for the Laramie River Station
would violate the CAA or otherwise be
arbitrary and capricious. Basin Electric
appealed its BART permit to the
Environmental Quality Council, arguing
that Wyoming’s imposition of additional
technology requirements in 2018 as part
of its long term goals exceeded its
authority for terms contained in a BART
permit. In its appeal, Basin Electric
accepted LNB and OFA as BART but
objected to the additional permit
condition related to long term strategies.
Basin Electric served its Petition for
Review before the Environmental
Quality Council on EPA, and EPA
received this notice of appeal, as
indicated by its acceptance of the
certified mail forwarding the appeal.
Thereafter, EPA chose not to comment
or otherwise participate in Basin
Electric’s appeal and never informed the
parties or the Environmental Quality
Council that EPA considered
Wyoming’s BART decision to violate the
CAA. In fact, no contention was made,
by any person or entity, that the BART
permit issued by Wyoming violated the
CAA.
After litigation, Basin Electric’s
appeal was settled. Wyoming agreed to
remove the provision related to future
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control strategies in exchange for Basin
Electric’s agreement to reduce emission
levels further than those proposed in the
original permit and provide even further
reductions by the end of 2017. This
proposed settlement was presented to
the Environmental Quality Council for
approval. No persons or entities
objected to the proposed settlement,
including EPA.
Only after Wyoming’s regional haze
SIP was submitted to EPA did EPA
announce that it found the settlement
‘‘unreasonable’’ and something with
which it ‘‘disagreed.’’ Based upon these
assertions, and without demonstrating
that the BART permit actually violates
the CAA, EPA now proposes to void all
of the extensive administrative
proceedings, processes, comment
periods and permit finality accorded
under state law.
This violates the explicit
representations EPA made to the United
States Supreme Court that decisions to
over-ride state technology choices are
rarely undertaken and therefore do not
pose a threat to state adjudicative
processes. In footnote 14 of the ADEC
decision, the Court quoted EPA for the
proposition that EPA has engaged in
‘‘restrained and moderate’’ use of its
authority to overrule specific technology
choices and has never ‘‘asserted
authority to override a state-court
judgment.’’ Based upon this
understanding, the majority in ADEC
dismissed concerns expressed by the
dissent about state/federal relations,
stating that ‘‘[e]xperience . . . affords
no grounding for the dissent’s
predictions that EPA oversight . . . will
‘rewor[k] . . . the balance between State
and Federal Governments’ and threaten
state courts’ independence.’’ ADEC, 540
U.S. at 493 n. 16. With its proposed
action here, however, EPA is doing
precisely what the dissent in ADEC
predicted, ignoring the extended
contested case process afforded under
state law and the final administrative
litigation resolution reached under state
law.
While Basin Electric’s appeal ended
short of a court proceeding, the
distinction between a litigated judgment
in an administrative appeal and a
judgment in a state court proceeding is
not significant. In both cases, EPA’s
proposed action fails to respect the
cooperative federalism that underlies
the CAA in general. Under the RHR
deference to state authority is far more
compelling than issues related to public
health under the BACT program, and so
the Supreme Court’s holding in ADEC
that EPA may not require ‘‘recourse to
state processes’’ is inapplicable to BART
decisions. ADEC, 541 U.S. at 492. EPA
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should conduct itself in accordance
with the spirit of its representation to
the Supreme Court that it has never
sought to override a state-court
judgment, and should not attempt to
override a state BART decision that has
been litigated to an administrative
conclusion under state law particularly
where, as here, EPA never advised the
state adjudicators or the parties to the
state proceedings that it considered the
permit to be invalid under the CAA.
EPA could have participated in the State
administrative appeal proceeding or at a
minimum appeared therein to register
an objection to the settlement
agreement. Having elected not to do so,
EPA should respect the result of the
State’s process.
Response: EPA disagrees with this
comment. As an initial matter, as
provided in detail elsewhere in this
section and in the docket for this action,
we provided feedback to the State in our
comment letters on the proposed SIP
and in meeting with State and company
officials; therefore, the State and
companies were aware of our
expectations.
That WAQSR Chapter 6, Section 2 has
been approved into the SIP does not
somehow commit EPA to participate in
Wyoming’s BART permit process. The
Act and the RHR do not require that
BART be determined through a permit
process that is subject to administrative
appeal or through a permit process at
all. The SIP-approved provision in
Chapter 6, Section 2 for notice to EPA
of permit actions meets the
requirements of 40 CFR 51.161(d),
regarding public procedures for review
of new or modified sources, not BART
sources. Furthermore, nothing in
Chapter 6, Section 2 suggests that notice
to EPA of a permit process somehow
binds EPA to participate in that process.
The commenter provides no statutory,
regulatory, or judicial authority to
support the proposition that EPA must
participate in state administrative or
judicial procedures. With respect to
state judicial procedures, the Supreme
Court has stated: ‘‘[i]t would be unusual,
to say the least, for Congress to remit a
federal agency enforcing federal law
solely to state court.’’ Alaska Dep’t of
Envtl. Conservation v. EPA, 540 U.S.
461, 493 (2004). Thus the Court
‘‘decline[d] to read such an uncommon
regime into the [CAA].’’ Id. The
commenter’s notion that the ADEC
opinion (which concerned a BACT
determination under the PSD program)
is inapplicable to BART determinations,
merely because BART determination are
part of a program to improve visibility
rather than public health, finds no
support in the ADEC opinion or
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anywhere in the CAA. We elsewhere
respond to comments that argue that the
language of the CAA itself requires a
greater level of deference to states BART
determinations.
With respect to the dissent in ADEC,
that dissent of course does not represent
the opinion of the Supreme Court.
Nonetheless, EPA is not undoing the
State’s process through the ‘‘mere stroke
of a pen on the Agency’s letterhead,’’
but instead is acting on the State’s
regional haze submittal through noticeand-comment rulemaking that is
potentially subject to judicial review.
Furthermore, EPA is not confusing the
CAA with the APA; our authority and
duty to review the State’s regional haze
SIP for compliance with the CAA and
the RHR stems from the CAA itself. As
we discuss elsewhere, EPA’s role in
reviewing SIPs differs in many key
aspects from that of a court reviewing
agency action under the APA.
Under the CAA, states are required to
submit SIPS that contain emissions
limits necessary to protect visibility,
and EPA is required to disapprove of
any inadequate SIPs and promulgate
FIPs in their place. 42 U.S.C. 7491(b)(2);
Section 7410(c)(1)(A). The CAA does
not require EPA to participate in state
proceedings related to its SIP
submission, nor does it preclude EPA
from carrying out its statutory duty to
disapprove an inadequate SIP if EPA
does not participate in state
proceedings. The notion that BART
determinations are insulated from EPA
review simply because the State has an
administrative appeal process not only
has no support in the Act, it is contrary
to the purposes of the Act and EPA’s
express obligation to approve only SIP
submittals that meet the requirements of
the Act.
Moreover, any state BART decisions
made under an unapproved SIP are not
federally enforceable because any SIP
‘‘shall not be treated as meeting the
requirements of this chapter until the
Administrator approves the entire plan
revision as complying with the
applicable requirements.’’ 42 U.S.C.
7410(k)(3); see also Gen. Motors Corp. v.
United States, 496 U.S. 530, 540 (1990)
(holding EPA may bring enforcement
action under an existing SIP while a SIP
proposal is pending).
Finally, this action does not violate
the Tenth Amendment. The Supreme
Court has explained that ‘‘where
Congress has the authority to regulate
private activity under the Commerce
Clause, we have recognized Congress’
power to offer States the choice of
regulating that activity according to
federal standards or having state law
pre-empted by federal regulation.’’ New
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York v. United States, 505 U.S. 144, 167
(1992); see also U.S. Const. Art. I,
Section 8, cl. 3 (commerce clause); id.
Art. VI, cl. 2 (supremacy clause). The
commenter does not argue that the CAA
is outside of Congress’ Commerce
Clause authority. Through the SIP/FIP
mechanism, the Act offered Wyoming
the choice of regulating sources in the
State in accordance with the regional
haze provisions in the CAA and with
rules promulgated by EPA under its
CAA authority; thus the Act itself does
not violate the Tenth Amendment. With
respect to this particular action, our
disapproval of Wyoming’s regional haze
SIP and our FIP compel no action on the
part of the State and are not coercive
vis-a-vis the State. As explained
elsewhere in these responses, EPA has
not required Wyoming to adopt specific
control measures. Instead, our FIP
contains requirements applicable only
to some private companies. The Tenth
Amendment is not implicated by our
action.
Comment: Even if EPA can
contravene the state process, it should
still require compelling circumstances
demonstrating a plain and unambiguous
violation of the CAA before it
countermands a state proceeding. Such
a showing is necessary to preserve the
balance between Federal and state
governments under the CAA. EPA is
undermining the significance and
integrity of the State appeals process as
well as the State’s authority to
determine BART. EPA is also making it
possible for interested parties, including
environmental groups, to ignore their
procedural obligation to voice
objections under State law because they
can wait to raise them when EPA acts
on a proposed SIP. EPA chose not to
participate in the BART permit process
and the resulting appeals, despite
knowing that the very NOX control
equipment at issue in the regional haze
FIP was being determined. Under the
principles of comity, EPA should be
barred from now addressing these issues
at this late period. Under these
circumstances, EPA should not be
allowed to raise complaints with a
BART permit for the first time in the
federal proceeding. Failure to do so
diminishes State law and puts parties
like Basin Electric into a position where
they must pursue State remedies to
avoid finality under State law but find
that such actions mean nothing in the
end under the federal process.
Response: EPA disagrees with this
comment. Nothing in the CAA sets some
sort of ‘‘compelling circumstance’’
standard for disapproval of a SIP.
Instead, we have the duty to ensure that
regional haze SIP submittals meet the
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requirements of the Act and the RHR.
See CAA Section 110(a)(2)(J) (SIP
submittals must meet applicable
requirements of Part C of title I,
including visibility protection). We do
not agree that we are prohibited from
identifying deficiencies in the Wyoming
SIP after the State rulemaking process is
complete, and the commenter cites
nothing in the Act to the contrary.
Furthermore, many of the concerns
raised in this action were
communicated to the State in our
comment letters and in numerous
meetings with State officials. With
respect to comments we have received
from environmental organizations on
our proposed action on Wyoming’s SIP,
the CAA does not require those
organizations to participate in state
processes.34 EPA is taking actions
specified under the CAA in partially
approving and partially disapproving
the Wyoming SIP. The CAA also
specifies the responsibility of EPA to
issue a FIP when states have not met
their requirements under the CAA. EPA
is promulgating this FIP to fill the
regulatory gap created by the partial
disapproval. Under the FIP, the State
retains its authority to submit future
regional haze SIPs consistent with CAA
and RHR requirements; we do not
discount the possibility of a future,
approvable SIP submission that results
in the modification or withdrawal of the
FIP. This rulemaking does not change
the distribution of power between the
states and EPA.
Comment: BART applies to specific
emission sources and requires
consideration of facts applicable to
specific source locations. Unlike a rule,
or a SIP generally, a BART
determination effectively adjudicates
the specific rights and legal obligations
of individual emissions sources. This
typically entitles individual source
owners to substantive procedural rights
and remedies under state law when a
BART determination is made. In
Wyoming, for example, each individual
source is required to apply for a BART
Permit. Wyoming law affords the source
being regulated with special
opportunities to be heard, both as part
of the public review of a permit
application and, in the case of a permit,
in an adjudicative hearing with
opportunities to challenge factual
determinations, call and question
witnesses, and present evidence. When
an applicant applies for a BART
construction permit, the applicant is
34 In contrast, elsewhere in the Act Congress has
made it explicit that participation in state processes
is required in order to raise objections with EPA.
See CAA section 504(b)(2).
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5069
afforded the opportunity to present its
own views and responses to comments
to the state agency. If a permit is issued
or denied, the applicant can appeal the
permit decision to the Environmental
Quality Council, which has statutory
authority to amend, grant, modify, or
deny the permit. Wyo. Stat. Section 35–
11–802. This proceeding is conducted
as a contested case, affording the
applicant the right to cross-examine the
Environmental Quality Council’s
technical experts regarding their BART
assumptions and conclusions.
The applicant also can call its own
experts and witnesses. Wyo. Dep’t of
Envtl. Quality Rules and Regulations,
Wyo. Admin. Code ENV PP Ch. 2
Sections 1–14. With these procedures,
BART permit applicants can challenge
the cost estimates and assumptions
underlying a BART permit decision,
including making a showing, as Basin
Electric does here by comment only,
that EPA’s consultants have ignored
critical site-specific conditions.
EPA’s effort to impose BART
determinations by federal rulemaking
impermissibly deprives source owners
of these substantive procedural rights
afforded under State law. This is one
reason courts have taken a strong stance
against EPA imposing specific control
technologies through partial approval of
a SIP. Leaving site-specific decisions in
the hands of the states provides statesponsored procedural rights for the
individually regulated sources. See
Virginia, 108 F.3d at 1406–10; Michigan
v. Thomas, 805 F.2d 176, 186 (6th Cir.
1986); Bethlehem Steel Corp., 742 F.2d
at 1035–37 (all holding that EPA may
not render a state SIP more stringent
than intended by the state by partial SIP
approval or imposition of control
technologies). A BART determination
requires consideration of complex, casespecific control technologies and makes
fact-dependent determinations for
individual named sources, which
effectively makes the federal BART
determination an administrative order
directed specifically at Basin Electric
rather than a rule generally applicable to
the public. Under these circumstances,
EPA cannot order specific emission
limits and consequent expensive control
technologies without affording Basin
Electric a hearing at which it can cross
examine EPA’s consultants. Basin
Electric must also be given an
opportunity to challenge EPA’s
interpretation of the facts. When EPA
moves from a quasi-legislative function
to a quasi-judicial function, as it has by
making fact-based determinations for
specific, named sources, it must provide
the required procedural protections for
those affected by its actions. See
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Londoner v. City & Cnty. of Denver, 210
U.S. 373, 386 (1908) (requiring an
agency to provide notice and an
adjudicative hearing for individuals
suffering specific injury from an agency
rule); compare Amoco Oil Co. v. EPA,
501 F.2d 722, 734–35 (D.C. Cir. 1974)
(agency action was quasi-legislative
because it did not rely on ‘‘findings of
fact’’ and evidence to make
determinations for a single source).
One administrative law expert
designated the distinction between rule
making and adjudication as ‘‘perhaps
the most critical distinction in all of
administrative law.’’ Gary Lawson,
Federal Administrative Law 10
(American Casebook Series, ThomsonWest 4th ed. 2007). It is an important
distinction because it separates agency
decisions that function as policy from
those that make situational
determinations. ‘‘A plain[ ] instance of
administrative adjudication occurs
where an administrative agency at one
and the same time makes a rule and
applies it to a concrete situation . . .
The essential difference between
legislation and adjudication is not that
one looks to the future and the other to
the past . . . What distinguishes
legislation from adjudication is that the
former affects the rights of individuals
in the abstract and must be applied in
a further proceeding before the legal
position of any particular individual
will be definitely touched by it; while
adjudication operates concretely upon
individuals in their individual
capacity.’’ John Dickinson,
Administrative Justice and the
Supremacy of Law in the United States
16–21 (Harvard University Press 1927),
quoted in Gary Lawson, Federal
Administrative Law 10–11(American
Casebook Series, Thomson-West 4th ed.
2007).
In the Proposed Rule, EPA makes
specific factual findings about
individual sources. EPA relies on its
expert consultant Andover to draw
specific factual conclusions about
retrofit construction costs for Laramie
River, yet it affords Basin Electric no
opportunity to confront its expert over
the Andover Report’s error-filled
findings. In order to provide due
process, a specific party like Basin
Electric who is singled out and
subjected to EPA’s fact-based
determinations must be allowed ‘‘the
right to support his allegations by
argument however brief[,] and, if need
be, by proof, however informal.’’
Londoner, 210 U.S. at 386. In the case
of Laramie River, the requirement for a
hearing is especially strong because
‘‘[t]he extent to which procedural due
process must be afforded the recipient is
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influenced by the extent to which he
may be ‘condemned to suffer grievous
loss.’ ’’ Goldberg v. Kelly, 397 U.S. 254,
262–63 (1970) (citing Joint Anti-Fascist
Refugee Comm. v. McGrath, 341 U.S.
123, 168 (1951)).
EPA must afford these procedural
rights to Basin Electric if EPA is going
to assume control over site-specific
BART determinations, rather than leave
them to the states as Congress intended.
Section 169A’s directive that BART be
determined by the states permits states
to afford individual emissions sources
the procedural and other rights that due
process requires for site-specific
regulation, and EPA must afford these
same rights to source owners if it is
going to federalize the BART program
by rejecting all state determinations
with which its technical consultants
disagree.
Response: EPA disagrees with this
comment. EPA’s procedures did not
deprive Basin Electric of due process.
First, the comment confuses the issues
by arguing that under State law Basin
Electric has ‘‘substantive procedural
rights’’ and that EPA’s procedures
somehow deprived Basin Electric of
these. But due process under the Fifth
Amendment does not require EPA to
give exactly the same process that the
State gave. The commenter provides no
authority for the existence of something
called a state ‘‘substantive procedural
right’’ that the United States is bound by
the Fifth Amendment to respect.35
Instead, federal due process protects
substantive fundamental rights and
procedural rights if the claimant has a
constitutionally protected life, liberty,
or property interest. See U.S. Const.,
Amend. V (‘‘nor be deprived of life,
35 The cases cited by the commenter, Virginia,
108 F.3d at 1406–10; Michigan v. Thomas, 805 F.2d
176, 186 (6th Cir. 1986); Bethlehem Steel Corp., 742
F.2d at 1035–37, lack any reference to a notion of
‘‘state substantive procedural rights’’ or ‘‘statesponsored procedural rights.’’ The opinion in
Virginia concerns the roles EPA and states play
under the Act; the opinion does not discuss due
process for owners of individual sources. The
opinion in Michigan, noting that EPA’s action had
a rational basis, briefly dismisses a claim that the
action violated the due process clause of the Fifth
Amendment by discriminating against business and
industry. Michigan, 805 F.2d at 185 n.1. Although
the opinion does not make it explicit, the claim
there thus seems to have been equal protection as
incorporated into the Fifth Amendment, not
procedural due process. See Bolling v. Sharpe, 347
U.S. 497 (1954). Michigan is not on point. Finally,
the dicta in Bethlehem Steel speculates that, in the
case of a FIP, ‘‘EPA might have had to give
interested persons an opportunity to submit oral as
well as written comments,’’ Bethlehem Steel, 742
F.2d at 1032, which EPA did in this case. The dicta,
which in any case is not binding, does not say that
EPA’s experts must be available for crossexamination or that EPA is bound by state
procedures or that the Fifth Amendment to the U.S.
Constitution recognizes state ‘‘substantive
procedural rights.’’
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liberty, or property, without due process
of law’’). That the comment attempts to
make a state procedure into a
constitutionally protected interest by
calling it a ‘‘substantive procedural
right’’ is of no avail; the comment
identifies no attribute of the state
procedure that makes it into a
constitutionally protected ‘‘life, liberty,
or property’’ interest under either the
text of the Fifth Amendment or the case
law interpreting that Amendment. See
Cleveland Bd. Of Educ. v. Loudermill,
470 U.S. 532, 541 (1985) (‘‘[T]he Due
Process Clause provides that certain
substantive rights—life, liberty, and
property—cannot be deprived except
pursuant to constitutionally adequate
procedures. The categories of substance
and procedure are distinct.’’). Nor does
Basin Electric have a protected interest
in the outcome of the State BART
permit process. There is no ‘‘legitimate
claim of entitlement’’ to that outcome,
Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 577 (1972), as the
State’s BART determination was always
subject to review by EPA under the
CAA. In the end, what the Fifth
Amendment does potentially protect is
Basin Electric’s property interest itself,
not the State procedure. As we now
explain, EPA’s procedures were
sufficient to satisfy the requirements of
due process with respect to Basin
Electric’s property interest.
CAA section 307(d) specifies the
procedures that EPA is required to
follow in promulgating a FIP. Section
307(d) does not require adjudicatory
hearings, nor does it require EPA to
allow for cross-examination of EPA’s
consultants.36 Additionally, the
Administrative Procedure Act only
requires adjudicatory hearings if a
particular statute specifies that a rule
must be made ‘‘on the record after an
opportunity for an agency hearing.’’ 37
No such requirement is contained in
section 307(d).38 The Supreme Court
has explained that courts face an
extremely high burden in order to
impose additional procedures beyond
those specifically required by statute
because ‘‘unwarranted judicial
examination of perceived procedural
shortcomings of a rulemaking
proceeding can do nothing but seriously
interfere with that process prescribed by
Congress.’’ 39 EPA followed the
36 See
42 U.S.C. 7607(d)(5).
5 U.S.C. 553(c); see also U.S. v. AlleghenyLudlum Steel Corp., 406 U.S. 742, 757 (1972).
38 See 42 U.S.C. 7607(d)(5); see also Anaconda
Co. v. Ruckelshaus, 482 F.2d 1301, 1306 (10th Cir.
1973).
39 Vermont Yankee Nuclear Power Corp. v.
Natural Res. Def. Council, Inc., 435 U.S. 519, 548
(1978).
37 See
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procedures required by Congress in the
CAA and EPA believes that no
additional proceedings are warranted.
Moreover, Congress specifically
contemplated and rejected a crossexamination requirement for public
hearings in section 307.40 The House
bill contained an opportunity to crossexamine those who made oral
presentations at the public hearing.
During Conference Committee, this was
deleted and replaced with a requirement
that the rulemaking record remain open
for thirty days after public hearing to
allow interested parties to submit
rebuttal and supplemental
information.41
The comment cites Goldberg v. Kelly,
397 U.S. 254, 262–63 (1970) and argues
that Basin Electric, like the welfare
recipient in Goldberg, has an especially
strong claim to an evidentiary hearing
prior to EPA’s final rulemaking because
Basin Electric may be ‘‘condemned to
suffer grievous loss.’’ The comment fails
to explain why the private interest of
Basin Electric here is identical to the
Goldberg welfare recipient’s private
interest in an evidentiary hearing before
the termination of welfare benefits. The
comment also does not examine the
factors set out in Mathew v. Eldridge,
424 U.S. 319 (1976),42 for determining
what due process requires, and so does
not provide any reason for EPA to think
that the procedures here were
inadequate. In particular, the comment
provides no basis to think that EPA’s
procedures created a serious ‘‘risk of an
erroneous deprivation’’ of Basin
Electric’s interest and that there would
be any ‘‘probable value’’ to crossexamination. With respect to the alleged
errors referred to in the comment, Basin
Electric has made its arguments as to
why they are errors and EPA has
responded why they are not. If Basin
Electric thinks EPA’s responses are
inadequate, then Basin Electric may
seek judicial review of EPA’s action
under section 307(b) of the Act. The risk
of erroneous deprivation appears small,
and Basin Electric’s comment gives no
reason to think otherwise. Basin
Electric’s comment also does not
40 Kennecott Corp. v. EPA, 684 F.2d 1007, 1020
(D.C. Cir. 1982).
41 See H.R. Rep. No.95–564, 95th Cong. (1977).
42 ‘‘[I]dentification of the specific dictates of due
process generally requires consideration of three
distinct factors: First, the private interest that will
be affected by the official action; second, the risk
of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards;
and finally, the Government’s interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would entail.’’
Eldridge, 424 U.S. at 335.
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identify any particular value to crossexamination in this context. As the
comment admits, the matters here are
ones of technical judgment; they are not
(for example) eyewitness accounts that
might benefit from cross-examination.
EPA also notes that the comment fails
to discuss ‘‘the Government’s interest,
including . . . the fiscal and
administrative burdens’’ that crossexamination would entail. Eldridge
alternatively identified this third factor
as ‘‘the public interest.’’ Eldridge, 424
U.S. at 347. In considering the burdens
imposed by a full adjudicatory hearing
on the Government and the public, the
Tenth Circuit Court of Appeals stated
(albeit before Eldridge, so not in the
context of applying the Eldridge factors):
Unending procedure could be produced by
an adjudicatory hearing. This could bring
about unending delay which would not only
impede but completely stifle congressional
policy. We do not, of course, condemn the
trial court’s concern for the rights of [the
petitioner]. Those rights are important and
the court should be sensitive to them, but
those rights are not of such magnitude as to
overcome congressional policy and the rights
of the remainder of the community.
Anaconda Co. v. Ruckelshaus, 482 F.2d
1301, 1307 (10th Cir. 1973). The
comment gives EPA no reason to think
otherwise.
With respect to the comment’s
invocation of the BiMetallic-Londoner
distinction between rulemaking and
adjudication, it is not clear that
Londoner applies here, where the
interests of many parties are at stake.
See Anaconda, 482 F.2d at 1306 (‘‘The
fact that Anaconda alone is involved is
not conclusive on the question as to
whether the hearing should be
adjudicatory, for there are many other
interested parties and groups who are
affected and are entitled to be heard. So
the guidelines enunciated by Mr. Justice
Holmes in Bi-Metallic Investment Co. v.
State Board of Equalization are not
applicable.’’) (citation omitted). Even if
the distinction does apply, due process
does not per se require a full
adjudicatory hearing. As the comment
admits, what due process does require
is that a person ‘‘have the right to
support his allegations by argument,
however brief: and, if need be, by proof,
however informal.’’ Londoner v. City &
Cnty. of Denver, 210 U.S. 373, 386
(1908). Thus the ‘‘core of due process is
the right to notice and a meaningful
opportunity to be heard.’’ 43 With
respect to whether a full evidentiary
hearing is required, ‘‘differences in the
origin and function of administrative
agencies preclude wholesale
43 LaChance
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5071
transplantation of the rules of
procedure, trial, and review which have
evolved from the history and experience
of courts. The judicial model of an
evidentiary hearing is neither a
required, nor even the most effective,
method of decision making in all
circumstances.’’ Eldridge, 424 U.S. at
348 (citations and quotations omitted).
EPA believes Basin Electric was
afforded a meaningful opportunity to be
heard and present evidence to EPA in
support of its position. EPA notified the
public of its proposed rule, held a
public hearing, and accepted public
comments for a period of 60 days.44 In
an effort to provide a greater
opportunity for public comment on the
proposed rule, EPA held two additional
public hearings and extended the
comment period to 75 days, which goes
beyond the procedures required by the
CAA. 45 Basin Electric submitted
extensive comments prior to the first
comment deadline, participated in two
public hearings, and submitted
additional comments during the
extended public comment period.46
Basin Electric took full advantage of its
opportunity to be heard and was not
denied due process.
Comment: Section 169A requires the
State to take into consideration five
different factors when making its BART
determination. 43 U.S.C. 7491(g)(2). But
these factors ‘‘were meant to be
considered together’’ to arrive at a single
judgment committed to the State: A
BART emission limit. American Corn
Growers, 291 F.3d at 6. Moreover, only
Wyoming—not EPA—is entitled to
determine the weight and significance
to assign costs, feasibility, and visibility
improvements. 70 FR 39123 (‘‘The State
makes a BART determination based on
the estimates available for each
criterion, and as the CAA does not
44 Implementation Plans; Approvals,
Disapprovals and Promulgations: Wyoming;
Regional Haze State Implementation Plan; Federal
Implementation Plan for Regional Haze June 10,
2013 Docket EPA–R08–OAR–2012–0026–0093.
45 Air Quality State Implementation Plans;
Approvals, Disapprovals and Promulgations:
Wyoming; Regional Haze State Implementation
Plan; Federal Implementation Plan for Regional
Haze; Public Hearings Jul. 8, 2013 Docket EPA–
R08–OAR–2012–0026–0098; see 42 U.S.C.
7607(d)(5).
46 Basin Electric Power Cooperative Comments,
Aug. 6, 2013 Docket EPA–R08–OAR–2012–0026–
0058; Public Comment from Basin Electric Email
Aug. 9, 2013 Docket EPA–R08–OAR–2012–0026–
0148; Transcript from July 26, 2013 Hearings in
Casper, Wyoming Aug. 8, 2013 Docket EPA–R08–
OAR–2012–0026–0108 pp. 48–83; Transcript from
June 24, 2013 Hearings in Cheyenne, Wyoming
Aug. 15, 2013 Docket EPA–R08–OAR–2012–0026–
0100 pp. 62–67; Additional Public Comment from
Basin Electric Laramie River Station BART
CALPUFF Modeling Analysis Aug. 26, 2013 Docket
EPA–R08–OAR–2012–0026–0227.
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specify how the State should take these
factors into account, the States are free
to determine the weight and
significance to be assigned to each
factor.’’); see also 40 CFR Part 51, App.
Y, Section IV.D.5.
By applying a different assessment of
costs and visibility than those employed
by Wyoming in its BART determination,
and assuming that these assessments
mandate a different BART outcome,
EPA’s proposed FIP rejects the State’s
determinations on cost, feasibility, and
visibility improvement without
considering whether, taken together, the
five statutory factors would compel a
different result than the one reached by
Wyoming. The net result is a decision
imposing a different BART choice than
that selected by the State by splitting the
statutory factors and giving them
separate and independent determinative
significance—the same legal error EPA
made in American Corn Growers. The
‘‘splitting of the statutory factors is
consistent with neither the text nor the
structure of the statute.’’ 291 F.3d at 6.
Wyoming must therefore be afforded
an opportunity to reconsider its BART
determination before EPA imposes a
FIP. This is necessary to preserve State
primacy in the BART determination.
States ‘‘determine what is too costly
(and what is not) for a particular
source.’’ Am. Corn Growers, 291 F.3d at
6–7. The actual BART determination
flows not from any one of the statutory
factors, but instead from consideration
of all of them together. That is why it
is erroneous for EPA to impose its own
BART choice without explaining how it
reached that choice upon consideration
of all five statutory factors. If EPA acts
to correct alleged errors in the State’s
cost assessment or visibility modeling,
EPA must remand the statutory
evaluation back to the State. Section
110(c) contemplates that States should
be given an opportunity to correct any
‘‘deficiencies,’’ and this statutory
opportunity should not be taken from
the State as a result of self-imposed
consent decree deadlines. Doing so
destroys State primacy in the BART
determination.
It also results in a BART
determination from EPA that is not
informed and explained by an
independent assessment of the five
statutory factors. EPA’s failure to
remand the BART determination back to
the State therefore results in neither the
State nor EPA making a BART
assessment that considers all of the
statutory factors together. While Basin
Electric acknowledges that the Tenth
Circuit Court of Appeals recently
reached a different conclusion in
Oklahoma v. EPA, 723 F.3d 1201 (10th
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Cir. 2013), that case is not yet final and
that Court was not presented with, and
did not consider, the fundamental
problem associated with EPA’s effort to
make one of the five statutory factors
outcome determinative. EPA cannot
cause an outcome in which no agency
has actually complied with the statute,
which is what happens when EPA
simultaneously disapproves the State’s
BART assessment on one or two
statutory factors and then imposes a
different BART assessment based upon
cost and visibility factors combined
with the State’s prior consideration of
the other factors, as EPA does here. This
is not a procedural error, but rather an
error that results in no agency—neither
the State nor EPA—actually complying
with the statute by considering all five
statutory factors together before arriving
at a BART emission limit.
Response: EPA does not agree with
this comment. The RHR and the BART
Guidelines allow the reviewing
authority (State, Tribe, or EPA) the
discretion to determine how to weigh
and in what order to evaluate the
statutory factors (cost of compliance, the
energy and non-air quality
environmental impacts of compliance,
any existing pollution control
technology in use at the source, the
remaining useful life of the source, and
the degree of improvement in visibility
which may reasonably be anticipated to
result from the use of such technology),
as long as the reviewing authority
justifies its selection of the ‘‘best’’ level
of control and explains the CAA factors
that led the reviewing authority to
choose that option over other control
levels.47 In this action, having
disapproved the State’s BART
determinations for NOX at five units,
‘‘all of the rights and duties that would
otherwise fall to the State accrue instead
to EPA.’’ 48 This includes a significant
degree of discretion in deciding how to
weigh the five factors, so long as that
weighing is accompanied by reasoned
explanation for adopting the technology
selected as BART, based on the five
factors, and in accordance with the
BART Guidelines. EPA has provided a
detailed explanation of our BART
evaluation process and five-factor
analyses in our proposal, and elsewhere
in this final notice. We have weighed
the potential energy and non-air
environmental quality impacts of the
various control options along with the
other statutory factors in our BART
analyses. We have not, as the
47 See BART Guidelines, 40 CFR Part 51,
appendix Y, section IV.E.2.
48 Central Arizona Water Conservation Dist. v.
EPA, 990 F.2d 1531, 1541 (9th Cir. 1993).
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commenter surmises, approved the
State’s assessment of certain factors and
disapproved the assessment of others,
replacing just the factors we have
disapproved. Instead, for those NOX
BART determinations we are
disapproving, we have disapproved
them in their entirety. Then EPA
independently assessed and weighed
the five factors. That we adopted the
State’s assessment of certain factors as
our own does not change this. Thus the
split in authority that the commenter
suggests simply has not occurred.
We also disagree that our proposal is
inconsistent with the American Corn
Growers decision. In American Corn
Growers, the petitioners challenged the
original RHR because, among other
things, the RHR treated one of the five
statutory factors differently than the
others by requiring states to consider the
degree of visibility improvement from
imposing BART on a group of sources
rather than on a source-specific basis.49
The court concluded that such a
requirement could force states to apply
BART controls at sources without
evidence that the individual sources
contributed to visibility impairment at a
Class I area, which encroached on
states’ primary authority under the
regional haze provisions to determine
which individual sources are subject to
BART and what BART controls are
appropriate for each source.50
Therefore, the court vacated the
visibility improvement part of the
original RHR as contrary to the statute.51
Contrary to some commenters’
suggestions, however, the American
Corn Growers decision did not address
EPA’s authority to reject a state’s BART
determinations for failure to conform to
the CAA, the RHR, or the BART
Guidelines.
Finally, as explained elsewhere in
this final rule, we have the authority to
promulgate a FIP concurrently with a
disapproval action.
Comment: EPA’s FIP is subject to
APA review. Accordingly, it cannot
withstand judicial scrutiny if it is
arbitrary, capricious, an abuse of
discretion, or not in accordance with the
law. See 5 U.S.C. 706(2)(A); Olenhouse,
42 F.3d at 1574. More generally, a court
will set it aside ‘‘if the agency relied on
factors which Congress has not intended
for it to consider, entirely failed to
49 291
F.3d at 5–9.
at 7–8.
51 EPA revised the RHR to address the court’s
decision in American Corn Growers at the same
time as we promulgated the BART Guidelines. 70
FR 39104 (July 6, 2005). The revised RHR and the
Guidelines were upheld by the D.C. Circuit in
Utility Air Regulatory Group v. EPA, 471 F.3d 1333
(D.C. Cir. 2006).
50 Id.
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consider an important aspect of the
problem, offered an explanation for its
decision that runs counter to the
evidence before the agency, or is so
implausible that it could not be ascribed
to a difference in view or the product of
agency expertise.’’ State Farm, 463 U.S.
at 43.
A court reviewing agency action
under the APA must ‘‘ascertain whether
the agency examined the relevant data
and articulated a rational connection
between the facts found and the
decision made.’’ Olenhouse, 42 F.3d at
1574 (citing State Farm, 463 U.S. at 43)
(footnote omitted). A reviewing court
also must review the agency’s
explanation to ‘‘determine whether the
agency considered all relevant factors
and whether there has been a clear error
of judgment.’’ Id. (citing, inter alia,
Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 416 (1971)). The
court ‘‘‘should not attempt itself to make
up for . . . deficiencies’’’ in the
agency’s reasoning and ‘‘may not supply
a reasoned basis for the agency’s action
that the agency itself has not given.’’ Id.
at 1574–75 (quoting State Farm, 463
U.S. at 43) (emphasis removed).
As a result, ‘‘‘an agency’s action must
be upheld, if at all, on the basis
articulated by the agency itself,’’ and
‘‘the grounds upon which the agency
acted must be clearly disclosed in, and
sustained by, the record.’’ Id. at 1575
(quoting State Farm, 463 U.S. at 50). In
its decision, ‘‘[t]he agency must make
plain its course of inquiry, its analysis
and its reasoning.’’ Id. Moreover, its
action must be ‘‘supported by the facts
in the record.’’ Id. This means the action
must be supported by ‘‘substantial
evidence,’’ i.e., ‘‘‘enough to justify, if the
trial were to a jury, a refusal to direct
a verdict when the conclusion to be
drawn is one of fact.’’’ Id. (citation
omitted). In addition to providing a
basis for invalidating the agency action,
an agency’s failure to fully explain and
support its reasoning warrants a court’s
grant of less deference to the agency’s
decisions. See, e.g., Achernar Broad. Co.
v. FCC, 62 F.3d 1441, 1447 (D.C. Cir.
1995) (‘‘no deference is due when the
agency has stopped shy of carefully
considering the disputed facts’’); NLRB
v. P*I*E Nationwide, Inc., 923 F.2d 506,
518 n.16 (7th Cir. 1991) (‘‘deference
given to an agency is not granted freely,
it is purchased; the agency must
exercise its touted expertise and
‘‘explain the rationale and factual basis
for its decision’’) (citation omitted).
Although a court generally will defer
to an agency’s experts when the agency
acts within its area of expertise, a court
will not do so and will invalidate the
agency’s action where its expert’s
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decisions were arbitrary and capricious.
See, e.g., Garvey, 256 F.3d at 1036
(agencies can rely on their own experts
only ‘‘so long as their decisions are not
arbitrary and capricious’’) (citation
omitted). See also NetCoalition v. SEC,
615 F.3d 525, 539 (D.C. Cir. 2010)
(‘‘[W]e do not defer to the agency’s
conclusory or unsupported
suppositions.’’) (citation omitted);
Brower v. Evans, 257 F.3d 1058, 1067
(9th Cir. 2001) (‘‘The deference
accorded to an agency’s scientific or
technical expertise is not unlimited. The
presumption of agency expertise can be
rebutted when its decisions, while
relying on scientific expertise, are not
reasoned.’’) (citation omitted); Nat.
Resources Defense Council, 725 F.2d at
768, 771 (the court owed EPA no
deference where the agency
‘‘complete[ly] fail[ed] to consider the
criteria that should inform [its
decision]’’). Similarly, an agency can
rely on a model ‘‘only so long as it
‘explains the assumptions and
methodology used in preparing the
model’ and ‘provides a complete
analytical defense’ should the model be
challenged.’’ Appalachian Power Co. v.
EPA, 249 F.3d 1032, 1052 (D.C. Cir.
2001) (citation and brackets omitted).
See also Sierra Club v. Costle, 657 F.2d
298, 333 (D.C. Cir. 1981) (although
computer modeling undoubtedly ‘‘is a
useful and often essential tool,’’ an
‘‘agency must sufficiently explain the
assumptions and methodology used in
preparing the model’’ and must
‘‘provide a complete analytic defense of
its model (and) respond to each
objection with a reasoned presentation’’)
(internal quotation marks omitted), rev’d
on other grounds, 463 U.S. 680 (1983);
id. (there must be ‘‘a rational connection
between the factual inputs, modeling
assumptions, modeling results and
conclusions drawn from these results’’).
Here, in promulgating its FIP, EPA was
required to do the same thing Wyoming
did: determine BART by ‘‘tak[ing] into
consideration’’ the five statutory factors,
including the costs of compliance, the
energy and non-air quality
environmental impacts of compliance,
any existing pollution control
technology in use at the source, the
remaining useful life of the source, and
the degree of improvement in visibility
that may reasonably be anticipated to
result from the use of the technology.
CAA Section 169A(g)(2), 42 U.S.C.
7491(g)(2). As the D.C. Circuit explained
in American Corn Growers, ‘‘the factors
were meant to be considered together’’
in determining BART, as ‘‘[t]he language
of section 169A(g)(2) can be read in no
other way.’’ 291 F.3d at 6.
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Accordingly, in order to comply with
the CAA and withstand APA review,
EPA must fully explain how it assessed
and weighed the five BART factors
together, and it must support that
explanation with record facts. EPA has
failed to do so. Additionally, the same
regulations EPA promulgates for state
BART determinations must also apply
to BART determinations made by EPA.
See CAA Section 169A(b)(2)(A), 42
U.S.C. 7491(b)(2)(A). Indeed, it would
be arbitrary and capricious for EPA to
require a state to follow certain specific
guidelines in making a BART
determination, yet to not itself follow
those same guidelines in making that
same determination after taking it out of
the state’s hands. Moreover, EPA has
suggested that the BART Guidelines and
Cost Manual are mandatory provisions
that must be followed in order to
comply with the CAA.
Response: We disagree with this
comment. As detailed elsewhere in this
document and documented in the
supporting record, EPA applied the
BART statutory factors and BART
Guidelines to each and every BART unit
that is covered under this rulemaking;
fully considered all significant
comments submitted on the proposed
notices and incorporated those
comments as appropriate; provided
basis for the decisions; applied models
that are specified in the BART
Guidelines (thus, the opportunity for
commenters to challenge the specified
models has long passed); developed and
provided detailed explanations
regarding EPA’s model inputs and
settings; and rationally applied the
modeling results to the final
determinations in applying the BART
and reasonable progress factors. The
comment does not identify any
deficiency in any portion of this.
Comment: Wyoming developed a SIP
that established reasonable progress
toward meeting the national goal for
regional haze as required under the
CAA Section 169A(a)(1). EPA’s
establishment of a 2064 goal and glide
path requires incremental visibility
improvement for successive planning
periods. EPA also clearly explains in
these requirements that the glide path
and 2064 target date are not binding.
This provides considerable latitude to
the individual states that are responsible
to develop a regional haze SIP that
makes reasonable progress in a way that
works to achieve the visibility goals
over time.
The State developed and submitted a
plan that would make substantial
progress in reducing haze at the affected
Class I areas. The State followed the
process in the EPA’s Regional Haze
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Guidelines, yet because it came to a
different conclusion than EPA, the plan
was rejected and replaced with EPA’s
FIP.
By rejecting the State’s reasonable
approach, EPA has ignored its own
requirements and guidance. EPA’s
issuance of a FIP not only ignores the
flexibility and authority granted the
State, it also ignores EPA’s guidance for
establishing reasonable control
requirements.
Response: EPA disagrees with this
comment. While the RHR does not
require states to achieve the URP, when
a state’s selected RPGs do not meet the
URP, the state must demonstrate, based
on the four reasonable progress factors,
that meeting the URP is not reasonable
and that the selected RPGs are
reasonable. 40 CFR 51.308(d)(1)(ii). As
discussed elsewhere, the State did not
appropriately consider the four
reasonable progress factors for Dave
Johnston Units 1 and 2, and to the
extent that the State relied on its BART
determinations to show reasonable
progress for those sources, we have
disapproved some of those BART
determinations. While the comment
states that EPA ‘‘ignored its own
requirements and guidance,’’ the
comment does not cite any particular
requirement that EPA purportedly
violated.
Comment: The EPA proposal is
deficient in large measure because the
EPA has identified what it views as
deficiencies in the Wyoming SIP and,
rather than ordering reconsideration of
all relevant factors with improved data,
has created a FIP that suffers from
analytical errors and arrogates the EPA’s
role in development and review of SIPs.
If the EPA was convinced Wyoming’s
cost estimates were in error, it should
have directed corrections, rather than
substituting other flawed data and its
own judgment. Indeed, it is apparent the
EPA is not committed to maintaining
the CAA’s deference to states’ authority
to formulate workable haze plans.
Otherwise, the EPA would have
required Wyoming to correct perceived
cost estimate errors and subsequently
reevaluate BART factors. The EPA
instead, substituted its own errors and
performed its own evaluation in pursuit
of its own goals.
Another commenter argued that EPA
should not impose a FIP until it has
issued a final rule disapproving the
Wyoming regional haze SIP. 42 U.S.C.
7410(c)(1)(B). EPA should first conduct
a rulemaking and take public comment
on the Wyoming regional haze SIP
submission, issue its determination on
the regional haze SIP, and then seek
input from the State. (See 42 U.S.C.
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7410(c)(1)(B); see also 42 U.S.C.
7607(d)(B) (rulemaking provisions apply
to ‘‘the promulgation or revision of an
implementation plan by the
Administrator under section 7410(c)’’)
Otherwise, EPA removes the State from
its assigned role as the one determining
BART.
The facts here illustrate this problem.
EPA initially agreed with Wyoming’s
BART determinations for Naughton
Units 1 and 2, and Dave Johnston Unit
3. EPA then reversed itself, supposedly
on the basis of new cost and visibility
information. Without offering Wyoming
any chance to review the new
information and issue a new BART
determination, EPA disapproved
Wyoming’s BART determination for
these units, and instituted new BART
determinations for these units through a
regional haze FIP. EPA’s failure to
provide Wyoming an opportunity to
review this new information, and
address it through a revised BART
determination, violates the applicable
CAA statutes.
The CAA defines a FIP as a plan (or
portion thereof) promulgated by the
(EPA) Administrator to fill all or a
portion of a gap or otherwise correct all
or a portion of an inadequacy in a SIP.
42 U.S.C. 7602(y). Until EPA first
assesses the Wyoming regional haze SIP,
develops a proposed rule to approve or
disapprove the Wyoming regional haze
SIP, solicits and receives public
comment on that proposed rule,
considers the comments and
information, and takes final action on
whether (and to what extent) to approve
the Wyoming SIP, EPA cannot know
whether there is a ‘‘gap’’ in the
Wyoming regional haze SIP that needs
to be filled or whether (and to what
extent) there is an ‘‘inadequacy’’ in the
Wyoming regional haze SIP that needs
to be corrected. Id. Moreover, EPA’s
failure to obtain public comments prior
to proposing a regional haze FIP
deprives Wyoming of an opportunity to
correct any ‘‘deficiencies’’ identified by
EPA. Here, where EPA claims to have
obtained new cost and visibility
information but did not allow Wyoming
an opportunity to review and act on the
new information, EPA’s final
determination regarding the Wyoming
regional haze SIP ignores the State’s
authority under the CAA (including the
regulatory programs implicated by CAA
Section169A) to design and implement
plans to control air pollution control
within its borders. (See 42 U.S.C.
7401(a)(3).) Therefore, EPA illegally
seeks to impose its regional haze FIP
and should withdraw the same.
Earlier comments argued that EPA
cannot impose a regional haze FIP until
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it has issued a final rule disapproving
Wyoming’s regional haze SIP. 42 U.S.C.
7410(c)(1)(B) mandates that disapproval
of all or part of a SIP is a prerequisite
to promulgation of a FIP. EPA must first
conduct a rulemaking and take public
comment on Wyoming’s regional haze
SIP submission, issue its determination
on the regional haze SIP, and then
proceed, or not, with promulgation of a
regional haze FIP. (See 42 U.S.C.
7410(c)(1)(B); see also 42 U.S.C.
7607(d)(B) (rulemaking provisions apply
to ‘‘the promulgation or revision of an
implementation plan by the
Administrator under section 7410(c)’’)
Response: We disagree with this
comment. We have the authority to
promulgate a FIP concurrently with a
disapproval action. Nowhere in the
CAA is there language that limits EPA’s
authority to simultaneously propose a
FIP and propose disapproval of a state’s
SIP where there has been a prior finding
of a failure to submit. This timing for
FIP promulgation is authorized under
CAA section 110(c)(1). As has been
noted in past FIP promulgation actions,
the language of CAA section 110(c)(1),
by its terms, establishes a two-year
period within which we must
promulgate the FIP, and provides no
further constraints on timing. See, e.g.,
76 FR 25178, at 25202. Wyoming failed
to submit the 40 CFR 51.309(g) plan
elements by December 17, 2007, as
required under the CAA and our
implementing regulations. Two years
later, Wyoming still had not submitted
these required plan elements. When we
made the finding in 2009 that Wyoming
had failed to submit these regional haze
SIP elements (see 74 FR 2392), that
created an obligation for us to
promulgate a FIP by January 2011. We
are exercising our discretion to
promulgate the FIP concurrently with
our disapproval action because of the
applicable statutory deadlines requiring
us at this time to promulgate regional
haze BART determinations to the extent
Wyoming’s BART determinations are
not approvable. In these concurrent SIP/
FIP actions, if comments or other
information cause us to reconsider
portions of our proposed disapproval,
and instead approve additional portions
of Wyoming’s SIP, we can readily adjust
our FIP accordingly by not finalizing the
FIP portions that are no longer needed,
as, indeed we are doing in this case.
Thus, the supposed procedural problem
the comment identifies simply does not
exist.
With respect to the argument that the
CAA requires EPA, before promulgating
a FIP, to give additional opportunities to
Wyoming to address the deficiencies
that EPA has identified, in fact the
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opposite is true. Under section 110(c)(1)
of the CAA, EPA must promulgate a FIP
within 2 years of a finding of failure to
submit a required SIP submittal. As
explained above, the requirement for a
FIP promulgation in today’s action was
triggered by a finding published on
January 15, 2009 (74 FR 2392), that
Wyoming (among other states) had
failed to make a submittal to address the
requirements of 40 CFR 51.309(g). Thus,
EPA had an obligation to promulgate a
FIP for the requirements of 40 CFR
51.309(g) by January 15, 2011, unless
the State submitted and EPA approved
a SIP addressing the deficiency.
Although we are approving portions of
Wyoming’s SIP that meet the
requirements of 51.309(g), we are
disapproving other portions and,
therefore, are still under an obligation to
promulgate a FIP for those portions. In
considering a similar argument to that
made by the commenter, the Tenth
Circuit Court of Appeals has stated:
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Once the EPA issued findings that
Oklahoma failed to submit the required SIP
under the Regional Haze Rule, the EPA had
an obligation to promulgate a FIP. The statute
itself makes clear that the mere filing of a SIP
by Oklahoma does not relieve the EPA of its
duty. And the petitioners do not point to any
language that requires the EPA to delay its
promulgation of a FIP until it rules on a
proposed SIP. As the EPA points out, such
a rule would essentially nullify any time
limits the EPA placed on states. States could
forestall the promulgation of a FIP by
submitting one inadequate SIP after another.
Oklahoma v. EPA, 723 F.3d 1201, 1223
(10th Cir. 2013).
Finally, as explained elsewhere,
under the FIP, the State retains its
authority to submit future regional haze
SIPs consistent with CAA and RHR
requirements; which may result in the
modification or withdrawal of the FIP.
Comment: The CAA and the RHR
provide substantial discretion to states
to determine how best to make
reasonable progress toward achieving
natural visibility conditions in
designated areas. Reasonable progress—
the touchstone of the regional haze
program—is a flexible benchmark. See
42 U.S.C. 7491(g)(1). In recognition of
this overarching flexibility and the need
to account for local conditions, Congress
directed EPA to allow states discretion
in how they determine the BART for
improving visibility. Id. Section
7491(b)(2)(A); Am. Corn Grower Ass’n v.
EPA, 291 F.3d 1, 8 (D.C. Cir. 2002)
(‘‘Congress intended the states to decide
which sources impair visibility and
what BART controls should apply to
those source.’’); see also 40 CFR
51.308(e)(1)(ii)(A).
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Against this backdrop of state
discretion, the CAA requires SIPs to
include: generally, ‘‘such emission
limits, schedules of compliance and
other measures as may be necessary to
make reasonable progress toward
meeting the national goal [of natural
visibility conditions in national parks
and wilderness areas],’’ 42 U.S.C.
7491(b)(2); ‘‘a long-term (ten to fifteen
years) strategy for making reasonable
progress toward meeting the national
goal,’’ id. Section 7491(b)(2)(B); and
more specifically, a plan for particular
sources to ‘‘procure, install, and operate,
as expeditiously as practicable (and
maintain thereafter) the best available
retrofit technology,’’ id. Section
7491(b)(2)(A).
Response: The CAA gives states
substantial but not unfettered discretion
in determining BART and reasonable
progress. We have already largely
addressed the assertions in this
comment in our responses to comments
on our legal authority. Furthermore, as
a hypothetical example, EPA would not
defer to a state determination that the
remaining useful life of a source is one
year if relevant evidence indicates the
remaining useful life is 20 years. Limits
on state discretion are inherent in the
CAA and our regulations; otherwise,
states would be free to reach decisions
that are arbitrary and capricious or
inconsistent with the purpose behind
the CAA and EPA’s regulations. As we
have stated, while we have approved
much of Wyoming’s SIP submittal, those
elements which we have disapproved
and for which we are finalizing a FIP
thwart the goals stated by Congress in
CAA section 169A and underlying the
RHR. Those statutory and regulatory
provisions cannot be simply dismissed
under the mantle of state discretion.
Comment: On May 28, 2009,
Wyoming published its BART
application analyses for the PacifiCorp
and Basin Electric facilities subject to
BART. Wyoming solicited public
comments on the analyses and to that
end held public hearings. EPA
commented on Wyoming’s analyses on
August 3, 2009. EPA was fully aware of
Wyoming’s BART proposals, but, at that
time EPA gave no indication that
Wyoming’s BART proposals violated the
CAA or were unreasonable.
Both PacifiCorp and Basin Electric
ultimately challenged Wyoming’s BART
determinations before the Wyoming
Environmental Quality Council. See
Appeal & Pet. for Review of BART
Permits, In re BART Permit Nos. MD–
6040 and MD–6042, No. 10–2801 (Wyo.
Envtl. Quality Council Feb. 26, 2010)
(PacifiCorp Petition); Appeal & Pet. for
Review, In re Basin Electric Power
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5075
Coop., No. 10–2802 (Wyo. Envtl.
Quality Council March 8, 2010) (Basin
Petition). The Environmental Quality
Council is an independent
administrative body charged with
adjudicating issues arising under
Wyoming environmental law, including
BART determinations. See Wyo. Stat.
Ann. Sections 35–11–111, 112.
Both Basin Electric and PacifiCorp
served their petitions for review on EPA
Region 8. EPA was again fully apprised
of Wyoming’s final BART decisions, as
well as the appeals of those decisions.
EPA elected not to participate in those
proceedings, and, again, provided no
indication that EPA viewed Wyoming’s
BART decisions as invalid.
After filing motions for summary
judgment, PacifiCorp and Basin Electric
both ultimately settled their litigation
with the State. The Environmental
Quality Council approved the
settlements after providing an
opportunity for public comment. EPA
did not comment on the settlement
agreements. Because no aggrieved
person appealed the Council’s decision
approving the settlements, the permit
decisions became final by operation of
law. Wyoming therefore incorporated
the BART permits into its SIP.
Years later, when EPA proposed
action on Wyoming’s SIP, EPA raised
for the first time its disagreement with
the BART decisions that PacifiCorp,
Basin, and Wyoming had already
litigated to conclusion. Because EPA
had the opportunity to participate in the
litigation and elected not to, EPA is now
precluded from collaterally attacking
those permit decisions. See, e.g., ADEC,
540 U.S. at 490 n.14. To conclude
otherwise—that EPA can forgo
participation in state adjudications only
to later attack the conclusions of those
state processes—is to give EPA the
power to nullify state court judgments.
Id. at 1015 (Kennedy, J., dissenting).
Congress did not intend to so empower
EPA to turn federalism on its head
through the regional haze program.
Response: EPA disagrees with this
comment. First, the comment does not
identify any way in which EPA is
precluded from exercising its authority
and duty under the CAA to ensure that
SIP submittals meet the requirements of
the Act. The notion that a state BART
determination is insulated from the
requirements of the Act merely because
the state has an administrative appeal
process is contrary to the Act itself as
well as the Supremacy Clause of the
U.S. Constitution. Had Congress wanted
to require EPA to participate in state
rulemaking or permit processes,
Congress would have explicitly stated
this in the Act. With respect to the
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ADEC dissent, it is just that, a dissent.
Even if the dissent were somehow
relevant, EPA is not nullifying a state
court judgment. The Wyoming
Environmental Quality Council is not
within the State judicial branch. It is an
executive agency. The members are
appointed by the Governor and serve at
the Governor’s pleasure. See Wyo. Stat.
Ann. Section 35–11–111(a) (‘‘Council
members shall be appointed by the
governor with the advice and consent of
the senate. The governor may remove
any council member as provided in
W.S. 9–1–202.’’); Section 9–1–202(a)
(‘‘[A]ny person may be removed by the
governor, at the governor’s pleasure, if
appointed by the governor to serve . . .
as a member of a state board or
commission.’’).
Furthermore, EPA’s comments to
Wyoming on its proposed SIP and
BART permits, which are in the docket
for this action, emphasized that we
would only come to a final conclusion
regarding the adequacy of Wyoming’s
BART determinations when we acted on
Wyoming’s regional haze SIP revision,
through public notice and comment
rulemaking. While we may have been
silent on some issues, silence from the
EPA does not signify implicit approval.
Any lack of participation by the EPA in
the state administrative appeal
proceeding or failure to register an
objection to the settlement agreement is
not an indication that a state’s proposed
BART determination will be approved
following its submittal as part of a larger
regional haze SIP, as discussed in
greater detail elsewhere in this
document. Wyoming is required to
adopt a final BART determination as
part of its regional haze SIP. As
explained elsewhere in this document,
once a state submits a SIP to the EPA,
we are authorized to approve, partially
approve, or disapprove the SIP, and we
have the duty to assure that the SIP
submittal complies with the
requirements of the Act. The statutory
scheme explicitly provides for this.
Alaska Depart of Environmental
Conservation v. Environmental
Protection Agency, 540 U.S. 461 (2004)
concerned EPA’s response to ADEC’s
issuance of a permit to a mine that
provided, as BACT, unreasonably low
NOX controls. Accordingly, EPA issued
three orders prohibiting ADEC from
granting the permit unless it
satisfactorily documented its reasoning
behind its BACT determination. The
Ninth Circuit held the three orders were
a proper exercise of EPA’s authority and
discretion. The Supreme Court affirmed.
EPA agrees with the commenter that
EPA made representations to the Court
stating the need to accord ‘‘appropriate
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deference’’ to states’ determinations.
EPA also agrees that we made the
representation that we have never
asserted our authority to override a
state-court judgment, and therefore, the
fear that EPA will threaten state courts’
independence is unfounded.
While EPA did make these
representations, these representations
are not inconsistent with EPA’s decision
to disapprove Wyoming’s BART
determination for Laramie River Station.
As explained above, we are not
overriding a state-court judgment.
Furthermore, the notion that a state
administrative appeal process can
insulate a BART determination from
federal requirements itself ‘‘turns
federalism on its head.’’ See U.S.
Constitution, Art. VI, cl. 2 (supremacy
clause).
In this instance, some of Wyoming’s
BART determinations were
unreasonable in terms of cost
effectiveness and other factors as
detailed elsewhere in this document
(detailed descriptions of the cost
assumption are described in the
comments specific to the units
elsewhere in this document).52 Finding
Wyoming’s BART determinations to be
unreasonable is a ‘‘restrained and
moderate’’ use of EPA’s statutory
authority. See 540 U.S. at n.14.
Following EPA’s issuance of orders to
ADEC for failing to establish a
reasonable BACT, the Court noted,
‘‘Only when a state agency’s BACT
determination is ‘not based on a
reasoned analysis’ . . . may EPA step in
to ensure that the statutory requirements
are honored.’’ 540 U.S. 461, 490. In the
case of Wyoming’s BART
determinations, EPA adhered to a
similar role. Upon finding some of
Wyoming’s BART determinations
unreasonable, EPA disapproved those
determinations and proposed an
alternative standard.
EPA continues to acknowledge the
importance of significant deference to
state authorities regarding their BART
determinations since they are in the best
position to make these determinations
given their close familiarity with the
unique characteristics of their particular
area. This structure encourages
cooperative federalism, a principle that
underlies the CAA. However, this
‘‘initial responsibility’’ does not permit
the state to make unreasonable BART
determinations. See 540 U.S. at 464.
EPA is not using its authority to
disapprove part of a state’s SIP as a way
52 As explained elsewhere in this document, EPA
has accepted some of the costs submitted in
response to the proposed notice developed for
Basin Electric, but not others.
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to override legitimate administrative
litigation reached under state law.
Rather, we are enforcing a requirement
of the CAA concerning anthropogenic
impairment of visibility by ensuring that
reasonable BART controls are
considered. State adjudicative processes
are not threatened because states are
free to use these processes to reach their
own BART determination, provided that
this determination is reasonable and
consistent with the CAA.
Comment: Nowhere does the Act
command national consistency in BART
cost estimates and, to the contrary, by
allowing states to make individualized
BART determinations, Congress
demonstrated that consistency was not
intended to be a component of the
regional haze program, save for the
uniform objective of attaining natural
visibility conditions. The commenter
indicated that the RHR takes the same
approach, allowing states wide
discretion to conduct BART analyses,
and that the BART Guidelines
encourage states to take into account
site-specific conditions that impact
costs. In light of these authorities, the
commenter believes that the EPA cannot
disapprove the State’s cost analyses
simply because they do not fit within
the EPA’s preferred vision of national
uniformity.
Another comment argued that EPA
claimed that the State failed to follow
the CCM, and the EPA supported this
claim by quoting the CCM as saying that
the EPA prefers consistency in control
cost estimates (78 FR 34749). The CAA,
the RHR, the BART Guidelines, and the
fact that different sources have vastly
different designs belie the EPA’s
preference for ‘‘consistency.’’ Nowhere
does the Act command national
consistency in BART cost estimates and,
to the contrary, by allowing states to
make individualized BART
determinations, Congress demonstrated
that consistency was not intended to be
a component of the regional haze
program, save for the uniform objective
of attaining natural visibility conditions.
The commenter indicated that the RHR
takes the same approach, allowing states
wide discretion to conduct BART
analyses, and that the BART Guidelines
encourage states to take into account
site-specific conditions that impact
costs. In light of these authorities, the
commenter believes that the EPA cannot
disapprove the State’s cost analyses
simply because they do not fit within
the EPA’s preferred vision of national
uniformity.
Response: As we explain in our
response to other comments in the legal
issue section, we have authority to
assess the reasonableness of a state’s
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analysis of costs; and a state’s discretion
must be reasonably exercised in
compliance with the applicable
requirements. While we agree that sitespecific challenges must be identified
and factored into the cost effectiveness
analysis, the SIP elements disapproved
elsewhere in this document items are
not ‘‘site-specific conditions,’’ but rather
use of the wrong costing methodology
and improper categorization of costs, as
well as other issues. An erroneous
analysis of costs, whether due to
methodological or to data flaws,
prevents a state from conducting a
meaningful consideration of the cost of
compliance factor. North Dakota v. U.S.
EPA, 730 F.3d 750, 761 (8th Cir. 2013).
EPA is not relegated to a ministerial
role. Id. We have not replaced cost
estimates, modeling analyses and other
SIP elements submitted by the State
solely for the purpose of ensuring
consistency across states. When a state
or source puts forward costs estimates
that are atypical, it is reasonable for us
to scrutinize such estimates more
closely to determine whether they are
reasonable or inflated. Also, given that
the assessment of costs is necessarily a
comparative analysis and one marker of
reasonableness, it is reasonable to insist
that certain standardized and accepted
costing practices be followed absent
unique circumstances. Such consistency
is particularly relevant for BART
determinations at fossil-fuel fired power
plants having a capacity in excess of 750
MW, which must be made pursuant to
the BART Guidelines.53 To the extent a
BART determination for such a power
plant is plainly inconsistent with EPAapproved determinations for similar
sources, it is more likely to be
inconsistent with the RHR and the
BART Guidelines and therefore to
warrant greater scrutiny for compliance
with the applicable requirements.
Comment: Basin Electric submits with
these comments an updated cost
estimate for SNCR and SCR emission
controls at Laramie River Station. That
report states that in Sergeant & Lundy’s
opinion SNCR would likely achieve a
48% reduction from EPA’s input
emission rate. However, when it made
its BART determination the State did
not have the benefit of this report and
made its judgment based on the best
information available at the time. EPA,
in its August 3, 2009 comments on
Wyoming’s BART permit for Laramie
River Station, stated that it estimated
that ‘‘SNCR can reduce NOX by 40%–
50% for most large boilers (EPA Air
Pollutions Control Cost Manual, 2002,
53 CAA section 169A(b) and 40 CFR
51.308(e)(1)(ii)(B).
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Sixth ed., EPA–452–02–001. Section
4.2, Chapter 1, pg. 1–3.).’’ States are
entitled to rely on information available
at the time they make BART
determinations, and EPA may not
disapprove a state’s BART based on
information that becomes available
later. This principle seems particularly
appropriate when at the time EPA itself
asserts the bona fides of information
similar to that relied upon by the State.
Response: We disagree with this
comment. EPA is required to take new
information submitted as part of this
rulemaking into consideration. Indeed,
EPA has taken into consideration the
updated cost estimate information
submitted by Basin Electric for SNCR
and SCR at Laramie River Station,
which was not available to Wyoming.
See Sierra Club v. EPA, 671 F.3d 955,
967 (9th Cir. 2012) (‘‘if new information
indicates to EPA that an existing SIP or
SIP awaiting approval is inaccurate or
not current, then, viewing air quality
and scope of emissions with public
interest in mind, EPA should properly
evaluate the new information and may
not simply ignore it without reasoned
explanation of its choice’’); see also 42
USC 7607(d)(6)(B) (‘‘The promulgated
rule shall also be accompanied by a
response to each of the significant
comments, criticisms, and new data
submitted . . . during the comment
period.’’) (emphasis added). Thus, EPA
is required, at a minimum, to take new
information into account during the SIP
approval process and, if necessary, alter
its final decision accordingly. As
explained in detail elsewhere, section
307(d) of the Act explicitly provides for
the consideration of information
developed after the proposed rule is
published.
EPA considered this new cost
information and the assessment of our
evaluation regarding this information
appears elsewhere in this document.
Comment: EPA is again overstepping
its role in this process. Wyoming
completed its BART analysis in 2009,
more than three years ago, and it would
have been impossible to incorporate the
alleged urea price increases in that
analysis. Simply put, Wyoming’s BART
determination is hardly arbitrary and
capricious simply because it failed to
take into account alleged urea price
increases some three years after
Wyoming completed its BART analysis.
Wyoming did precisely what the
Guidelines instruct: made a BART
determination based on information
available before the close of its public
comment period. 40 CFR Part 51, App.
Y., Section IV(D)(2)(3). To disapprove
Wyoming’s cost analysis based on
information that was not available to the
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5077
State would be to employ a ‘‘gotcha’’
approach that runs contrary to EPA’s
own regulations and counter to EPA’s
commitment to do its job fairly and
objectively. If the urea issue is truly
material, EPA should, at a minimum,
allow Wyoming to consider whether
this new information would affect its
BART determination before
disapproving that determination.
Another commenter suggests that urea
prices are relevant to operating costs for
SNCR but are not relevant to SCR. If the
State’s urea prices were too low, that
would mean the State had
underestimated the cost of SNCR, which
is what EPA claims in its proposal. 78
FR 34748. Such an underestimate would
have no material impact on the State’s
BART determination and thus provides
no basis for EPA’s disapproval. Once
again, this is a fact that in retrospect
supports the State’s BART decision,
rather than demonstrating it to be
arbitrary. If Wyoming’s estimate of the
cost of SNCR should have been higher,
as EPA maintains, the higher cost would
tend to add further support for rejecting
SNCR—the more expensive a control
technology, the stronger the reason to
reject it as BART. So if EPA is correct
in claiming the State’s assumed urea
price was too low, it is incorrect in
claiming this made a difference in the
State’s BART determination. A mistake
in a cost assumption, if there was a
mistake, is not a per se reason to reject
a BART determination. Such a mistake
would help support disapproval of a
cost analysis and resulting BART
determination only if it overstated costs
in a material way and thus tended to
make a technology appear significantly
more costly than it actually would be.
Response: We disagree with portions
of these comments. As we explained in
responses to similar comments below in
the section on Overarching Comments
on BART, we agree that a change in the
market price of urea, in and of itself,
may have not provided EPA sufficient
grounds for rejecting the State’s SNCR
analysis. However, we identified a
number of deficiencies in our proposed
rule, that when taken collectively, led
EPA to conclude that Wyoming’s
consideration of the costs of compliance
and visibility improvement for the EGUs
was inadequate and did not properly
follow the requirements in the BART
Guidelines and statutory requirements.
78 FR 34748. Therefore, regardless of
the market price of urea, EPA would
have reached the same conclusion.
Additionally, EPA is required to take
into account the urea price information
and we have taken that technical
information into account as detailed
elsewhere in this final notice and the
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docket. As explained in detail above,
while this information was not available
to the State, EPA nonetheless had a duty
to consider any new information
submitted during public comment when
reviewing the states’ SIPs. See Sierra
Club v. EPA, 671 F.3d 955, 967 (9th Cir.
2012).
Therefore, while the new urea cost
information was not available to the
State, EPA was nonetheless obligated to
consider any new information
submitted during public comment when
reviewing the states’ SIPs. Thus, EPA is
required, at a minimum, to take new
information into account during the SIP
approval process and, if necessary, alter
its final decision accordingly. Regarding
the comment that Wyoming should get
an opportunity to consider this
information before EPA takes final
action, see responses to similar
comments above.
Comment: EPA relies on its
consultant’s report as a basis for
rejecting Wyoming’s cost analysis for
SNCR and proposing to disapprove the
State’s NOX BART for Laramie River
Station. 78 FR 34748. EPA may not
reject the State’s estimate of the NOX
reduction achievable with SNCR just
because EPA’s consultant disagrees with
the State. Under the appropriate legal
standard, EPA must defer to the State’s
technical assessment absent
demonstration it is arbitrary and
capricious—which EPA has not
attempted to prove. Nor can EPA mount
a credible argument that its consultant’s
report is superior to the State’s. The
report does not comply with EPA’s own
Guidelines, as interpreted by EPA, and
ignores site-specific conditions that
have a huge impact on the cost of NOX
emission controls. Given the flaws in
the report, EPA’s reliance on it is not
only arbitrary and capricious, but
downright astonishing.
Response: We disagree with the
commenter’s assertion that we have
rejected the State’s estimate of cost
analysis for SNCR and the NOX
reduction achievable with SNCR just
because we disagree with the State.
During the public comment period on
our proposed rulemaking, Basin
Electric, as well as other parties,
submitted information concerning cost
estimates. We have placed this
information to the docket and as
explained elsewhere in this document,
taken it into account as part of this final
rulemaking. This final action clearly
explains the basis for our disapproval of
State’s NOX BART for Laramie River
Station, based on comments received
and our cost and visibility analysis, we
are disapproving others. We also
disagree that we are required to defer to
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the State’s technical judgments and to
apply an arbitrary and capricious
standard in reviewing the State’s SIP
submittal. We respond in detail to those
arguments elsewhere.
Comment: This commenter stated that
even if the Wyoming’s cost analyses
were revised to reflect the EPA’s high
urea prices, the average cost
effectiveness of SNCR would still be
consistent with the State’s original
analyses. The commenter noted that the
EPA’s average and incremental cost
effectiveness numbers for SNCR fall
well below the values considered by the
State to be cost effective and therefore
are consistent with the State’s original
conclusion that the costs of compliance
from the application of SNCR to the
EGUs were reasonable. The commenter
added that even if the State-analyzed
urea costs are adjusted to reflect EPA’s
urea costs, the average cost effectiveness
values remain below $2,600 dollars per
ton of NOX reduced and with
incremental cost effectiveness values
below $5,000 dollars per ton of NOX
reduced (citing commenter’s Exhibit
10), and those values are consistent with
the State’s original conclusion. The
commenter believes that it is clear that
the EPA does not take issue with
Wyoming’s cost analyses, but rather
Wyoming’s BART conclusions. The
commenter contended that the EPA’s
allegation that Wyoming incorrectly
analyzed costs is simply an excuse for
EPA to override Wyoming’s BART
determinations because EPA does not
like the result. The commenter asserted
that the EPA must explain why
Wyoming’s ultimate BART
determinations run afoul of the law,
rather than hold up allegations of
technical deficiencies as window
dressing for EPA to take over the role
Congress gave to states to make BART
determinations.
Response: We disagree with this
comment. As we explained earlier in
this final notice, Congress crafted the
CAA to provide for states to take the
lead in developing implementation
plans, but balanced that decision by
requiring EPA to review the plans to
determine whether a SIP meets the
requirements of the CAA. EPA’s review
of SIPs is not limited to a ministerial
type of automatic approval of a state’s
decisions. EPA must consider not only
whether the State considered the
appropriate factors but acted reasonably
in doing so. EPA has the authority to
issue a FIP either when EPA has made
a finding that the State has failed to
timely submit a SIP or where EPA has
found a SIP deficient. Here, EPA has
authority on both grounds, and we have
chosen to approve as much of the
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Wyoming SIP as possible and to adopt
a FIP only to fill the remaining gap. Our
action today is consistent with the
statute. We disagree that technical
deficiencies are mere ‘‘window
dressing’’; instead, appropriate technical
analyses are fundamental to a reasoned
BART determination. Finally, details of
technical issues regarding urea costs are
addressed elsewhere in this rule.
Comment: No single factor justifies
disapproval of the State’s BART. The
authority to determine BART belongs to
states, and BART determinations must
be based on all five BART factors
weighted together. States are
responsible for balancing those factors
and deciding how much weight to give
to each factor. 70 FR 39123, 39130,
39170. To show that Wyoming had been
arbitrary and capricious in making a
BART determination, EPA would bear a
heavy burden—a burden that it does not
even begin to meet based on a
disagreement that the State’s cost
analysis for SCR was in error. EPA’s
own incremental cost effectiveness for
SCR is more than $5000/ton, which is
a high cost even if lower than the
State’s. EPA makes no attempt to argue
that the difference between its
incremental cost effectiveness and the
State’s would have changed the State’s
selection of BART or rendered the
State’s BART arbitrary or illegal.
Response: We responded to similar
comments elsewhere. First, as we
explain in detail elsewhere, we disagree
that EPA’s review of a state’s SIP
submittal is limited to an arbitrary and
capricious standard. Second, as we
explain in detail elsewhere, we disagree
that states have the sole authority to
determine BART. Third, as we explain
in detail elsewhere, we disagree that a
‘‘harmless error’’ standard should be
applied.
Comment: In June of 2012, EPA
issued a proposal that analyzed the cost
effectiveness of various NOX control
technologies at Laramie River Station.
77 FR 33051. Although EPA disagreed
with the State’s NOX BART
determination for Laramie River Station,
EPA accepted and relied on the State’s
cost analysis for NOX controls, which
concluded that SCR would cost $3305
per ton of NOX removed, while SNCR
would cost $2036 per ton of NOX
removed. 77 FR 33051, Table 30 (These
values are for Unit 3. The State’s
conclusions for Units 1 and 2 were
similar.) In light of these estimates, EPA
eliminated SCR from consideration at
Laramie River Station ‘‘because the cost
effectiveness value is significantly
higher than LNBs with OFA and there
is a comparatively small incremental
visibility improvement over LNBs with
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OFA.’’ Id. EPA now expressly disavows
its earlier finding, apparently as a result
of comments that raised questions with
the State’s analysis and a cost analysis
prepared by Andover. 78 FR 34740,
34748. Yet EPA’s own cost analysis—
based entirely on the findings of a
technically infirm and legally
indefensible contractor analysis of the
costs of SNCR and SCR at Laramie River
Station—concludes that the cost
effectiveness of SCR at Laramie River
Station ranges from $3,589 to $3,903,
which exceed Wyoming’s cost
effectiveness demonstrations. Id. at
34774–34775. For EPA to take the
position SCR is now cost effective,
based on a higher estimate of tons NOX
removed that is inconsistent with its
earlier position and without any further
explanation, is arbitrary and capricious.
Cf. W. States Petroleum, 87F.3d at 284
(EPA ‘‘may not depart, sub silentio,
from its usual rules of decision to reach
a different, unexplained result in a
single case’’).
Response: We disagree with this
comment. EPA’s June 2012 Federal
Register notice was a ‘‘proposal,’’ not a
final agency action. Based on additional
information and analyses, on June 10,
2013 we reproposed to partially approve
and partially disapprove the Wyoming
SIP. Therefore, contrary to commenter’s
assertions, we had not taken a final
agency action in June 2012 and the
Western States Petroleum case in not
applicable here. In addition, we fully
explained the reasons for the changes in
our proposed action. We note that
adjustments in cost-effectiveness of SCR
were not the only factor in our proposed
changes. We also revised modeling of
visibility benefits of SNCR and SCR and
cost-effectiveness of SNCR, which
played a role in our reproposed BART
determination.
2. Compliance With Section 307(d)
Comment: EPA cannot adopt a FIP
using a procedure that simultaneously
proposes both disapproval of a SIP
BART determination and a different
BART determination as a FIP. Doing so
results in a violation of Section 307(d),
which requires EPA to first announce
the ‘‘statement of basis and purpose’’
that accompanies the FIP, including a
summary of ‘‘the factual data on which
the . . . rule is based’’ and ‘‘the major
legal interpretations and policy
considerations underlying the . . .
rule.’’ 42 U.S.C. 7607(d)(1)(B), (d)(3)(A)
& (C), (d)(6)(A). The reason is simple.
BART determinations are inherently
technical evaluations that consider
costs, feasibility, potential plant shutdowns, etc. The same requirement
would apply to any BART
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determination undertaken by EPA as
part of a FIP. Thus, any response by
EPA to comments that Basin Electric
and others submit in support of
Wyoming’s BART determination will
necessarily have to deal with new
detailed technical information and data,
particularly when, as here, EPA has
initially proposed to reject a BART
determination as inadequately
supported and thus has invited
extensive comments. EPA’s responses to
comments will then necessarily become
part of the grounds supporting any new
BART determination in a FIP, but will
not have been publicly disclosed until
EPA’s response to comments on the SIP.
Thus, EPA will be unable to provide a
substantive statement of basis and
purpose for the FIP in the same proposal
to disapprove the SIP unless it intends
to ignore comments. Yet this violates
EPA’s statutory obligation to announce
all the facts and grounds supporting a
FIP before adoption. It also wholly
undermines the underlying purposes of
the APA’s notice and comment
obligations. See, e.g., United States v.
Cain, 583 F.3d 408, 420 (6th Cir. 2009)
(these obligations are intended to
‘‘ensure fair treatment for persons to be
affected by regulation’’ and to ‘‘ensure
that affected parties may participate in
decision making at an early stage’’’)
(citations omitted); NRDC v. Thomas,
805 F.2d 410, 437 (D.C. Cir. 1986) (the
purposes of these obligations include
that ‘‘notice improves the quality of
agency rulemaking by ensuring that
agency regulations will be tested by
exposure to diverse public comment,’’
that ‘‘notice and the opportunity to be
heard are an essential component of
fairness to affected parties,’’ and that
‘‘by giving affected parties an
opportunity to develop evidence in the
record to support their objections to a
rule, notice enhances the quality of
judicial review’’) (quoting Small Refiner
Lead Phase-Down Task Force v. EPA,
705 F.2d 506, 547 (D.C. Cir. 1983).
This must be true, unless EPA’s
proposed course of action has already
been determined, meaning that EPA has
already decided to reject the SIP BART
determinations and replace them with
its own regardless of the comments
submitted. Such prejudgment would be
contrary to law. See, e.g., Davis v.
Mineta, 302 F.3d 1104, 1112 (10th Cir.
2002) (plaintiffs were likely to prevail in
showing agency acted arbitrarily and
capriciously, in part because the agency
‘‘prejudged the NEPA issues’’); Metcalf
v. Daley, 214 F.3d 1135, 1146 (9th Cir.
2000) (agencies’ environmental
assessment prepared under NEPA was
‘‘demonstrably suspect’’ and ‘‘fatally
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5079
defective’’ because the agencies ‘‘were
predisposed’’ to a particular finding;
agencies must conduct ‘‘an objective
evaluation free of the previous taint’’).
Yet that is plainly what EPA is
suggesting by its effort to
simultaneously disapprove one BART
determination while proposing another.
Either EPA must ignore the comments
so as not to establish new grounds for
the FIP, or it must reject the comments
on substantive grounds that become
justification for the FIP but have never
been publicly disclosed. Either way, its
action violates APA standards.
This is a consequence of the
procedural posture into which EPA has
put itself by taking no action on the SIP
until the end of the Sections 110(c) FIP
clock. To follow the requirements of
Sections 307(d), EPA must first propose
to disapprove a SIP, take comment, and
then make a decision after full and fair
consideration of the comments. If, after
open-minded consideration of the
comments, EPA continues to believe the
SIP must be disapproved, then and only
then can EPA lawfully propose a
different BART determination in a FIP,
articulating for public comment why the
proposed federal BART determination is
legal and the State BART determination
is not.
Failure to follow this procedure
necessarily results in a violation of the
law, one way or another. Nor does the
existence of a Consent Decree excuse
EPA’s failure to follow the correct
procedure. A court-fashioned decree
may not foreclose the total range of
procedural options available to an
agency. See Watt v. Energy Action Educ.
Found., 454 U.S. 151, 168–69 (1981)
(refusing to limit the procedural options
within the discretion of an agency);
Marina T. Larson, Consent Decrees and
the EPA: Are They Really Enforceable
Against the Agency?, 1 Pace Envt’l L.
Rev. 147, 160–63 (1983) (arguing that
consent decrees may not limit agency
procedural options). EPA waited until
compelled by Court Order to propose
disapproval of the State BART
determination, but could have done so
much earlier. In any event, the
obligations EPA negotiated for itself in
the Consent Decree cannot be used to
deprive Wyoming or Basin Electric the
substantive procedural rights afforded
by the CAA.
Response: EPA disagrees with this
comment, which fundamentally
misunderstands the nature of noticeand-comment rulemaking. As the Ninth
Circuit stated in another context:
Nothing prohibits the Agency from adding
supporting documentation for a final rule in
response to public comments. In fact,
adherence to the [petitioners’] view might
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result in the EPA’s never being able to issue
a final rule capable of standing up to review:
every time the Agency responded to public
comments, such as those in this rulemaking,
it would trigger a new comment period.
Thus, either the comment period would
continue in a never-ending circle, or, if the
EPA chose not to respond to the last set of
public comments, any final rule could be
struck down for lack of support in the record.
Rybachek v. U.S. EPA, 904 F.2d 1276,
1286 (9th Cir. 1990).
In the context of the CAA, the specific
rulemaking provisions in section 307(d)
are in accord with this. Under section
307(d)(3), the notice for the proposed
rule must be accompanied by a
statement of basis and purpose,
including ‘‘a summary of (A) the factual
data on which the proposed rule is
based; (B) the methodology used in
obtaining the data and in analyzing the
data; and (C) the major legal
interpretations and policy
considerations underlying the proposed
rule.’’ 42 USC 7607(d)(3) (emphasis
added). ‘‘All data, information, and
documents referred to in [section
307(d)(3)] on which the proposed rule
relies shall be included in the docket on
the date of publication of the proposed
rule.’’ Id. (emphasis added). Then,
under section 307(d)(6), the
promulgated rule must ‘‘be
accompanied by (i) a statement of basis
and purpose like that referred to in
[section 307(d)(3)] with respect to a
proposed rule.’’ 42 USC 7607(d)(6)(A)
(emphasis added). In other words, the
statement of basis and purpose must
provide a summary of (among other
things) the factual data and
methodologies on which the
promulgated rule is based. In addition,
section 307(d)(6) specifically requires a
‘‘response to each of the significant
comments, criticisms, and new data
submitted . . . during the comment
period.’’ 42 USC 7607(d)(6)(B)
(emphasis added). And finally, ‘‘the
promulgated rule may not be based . . .
on any information or data which has
not been placed in the docket as of the
date of such promulgation,’’ id.
7607(d)(C), which by implication allows
EPA to base the promulgated rule on
information and data that is placed in
the docket before the date of
promulgation. Thus, section 307(d)(6)
specifically contemplates that the
Agency can in its promulgated rule rely
on additional information and data that
EPA develops after the proposed rule
has been published.
In this instance, our FIP proposal was
in accord with the requirements of
section 307(d) of the Act. In particular,
before the proposed rule was published,
we included in the docket all the factual
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data, such as cost estimates and
visibility modeling, on which the
proposed rule was based. The comment
identifies no deficiency in this regard.
Instead, according to the comment the
supposed deficiency is the failure to
include in the docket for the proposal
the data and information that EPA will
develop to respond to comments. But, as
discussed above, this is no deficiency;
instead section 307(d) specifically
contemplates that this will happen.
The argument in the comment
regarding EPA’s alleged prejudgment of
its decision also belies a
misunderstanding of notice-andcomment rulemaking. Under the
comment’s theory, in order to not have
‘‘prejudged’’ the outcome, EPA would
have to avoid proposing any particular
outcome in its notice of proposed
rulemaking. However, under section
307(d)(3), ‘‘the notice of proposed
rulemaking shall be published in the
Federal Register, as provided under
section 553(b) [of the APA].’’ Under
section 553(b) of the APA, the ‘‘notice
shall include’’ (among other things)
‘‘either the terms or substance of the
proposed rule or a description of the
subjects and issues involved.’’ 5 USC
553(b)(3) (emphasis added). Thus it is of
course explicitly permitted under the
CAA and the APA for a proposal notice
to contain EPA’s proposed disapproval
of the State’s BART determinations and
EPA’s proposed FIP BART
determinations. This does not indicate
prejudgment at all; indeed in this action
EPA is adjusting certain determinations
in response to certain comments, and in
fact EPA previously reproposed its
action on Wyoming’s SIP based upon
new information submitted by the
public (77 FR 3302). The cases cited by
the comment regarding prejudgment
concern NEPA analysis and are not on
point.
As the commenter noted, regional
haze requirements apply both to our
action on Wyoming’s SIP submittal and
our FIP. EPA disagrees that the BART
determinations in its FIP, which must
meet the same regional haze
requirements as the BART
determinations in Wyoming’s SIP, must
be published in a separate rulemaking
procedure. To the extent that a comment
on our proposed disapproval was
identified as also relevant to our
proposed FIP, we have responded to it.
The commenter was not deprived of
procedural rights merely because the
commenter could not submit
information twice in two separate
rulemakings. All affected parties had
ample opportunity to submit any
pertinent information to EPA.
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Regarding the consent decree, we
have elsewhere explained that it did not
limit or modify EPA’s substantive
discretion. With respect to the
comment’s argument that it improperly
limited EPA’s procedural discretion,
any such limits are found in the
statutory deadlines and mandatory
duties in the Act itself. The case cited
in the comment, Watt v. Energy Action
Educ. Found., 454 U.S. 151 (1981), did
not concern a consent decree and is not
on point. In it, the Supreme Court was
‘‘unable to find anything, either in the
legislative history or in the 1978
Amendments [to the Outer Continental
Shelf Lands Act] themselves, that
compels the conclusion that the
Congress as a whole intended to limit
the Secretary of the Interior’s
discretion’’ with respect to choice of
bidding systems for oil and gas leases.
Id. at 168. By contrast, the CAA sets
certain statutory deadlines for EPA’s
action on SIP submittals and FIP
promulgations and thereby explicitly
limits the Administrator’s discretion for
final action. We elsewhere respond to
comments that EPA’s promulgation of
its FIP was outside EPA’s authority
under 110(c) of the Act. Finally, the
cited law review article, Marina T.
Larson, Consent Decrees and the EPA:
Are They Really Enforceable Against the
Agency?, 1 Pace Envt’l L. Rev. 147
(1983), is also not on point. It discusses
a settlement agreement which ‘‘set[ ]
forth specific methods and formalized
criteria for the [A]dministrator to use in
assessing the need for regulation. These
rules [would] control the nature of the
data collected and its subsequent
interpretation, and [would] have a
significant influence on the substantive
decisions reached.’’ Id. at 162. No such
constraints have been placed on our
methods and use of data in the
aforementioned consent decree. We
respond elsewhere to comments about
procedural due process rights.
3. Compliance With Section 169A(d)
Comment: One commenter argued
that section 169A(d) of the CAA
requires that before holding a hearing on
a proposed regional haze plan, ‘‘the
State (or the Administrator, in the case
of a [FIP]), shall consult in person with
the appropriate federal land manager
(FLM) or managers and shall include a
summary of the conclusions and
recommendations of the FLMs in the
notice to the public.’’ 42 U.S.C. 7491(d).
In its proposed action, EPA recites this
land manager consultation requirement
as it applies to SIPs, 78 FR 34744, but,
EPA notably ignores that this
requirement applies equally to FIPs.
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The commenter asserted that not once
in any of EPA’s public notices of the
hearings EPA held on its proposed FIP
did EPA include a summary of the
conclusions and recommendations of
the FLMs in the notice to the public. See
78 FR 34738 (June 10, 2013); 78 FR
40654 (July 8, 2013). Consequently, the
commenter argued that EPA cannot rely
on the State’s public notices because the
State held its public hearings years
before EPA proposed its FIP and
because the SIP differs substantially
from the FIP.
The commenter argued that EPA’s
failure to comply with Section 169A(d)
can be understood only as arbitrary and
capricious. The CAA has required
consultation with FLMs, which oversee
the Class I areas the regional haze
program aims to protect, from the very
beginning of the regional haze program,
see 42 U.S.C. 749l(a)(2), and
continuously through the development
of each implementation plan, id.
Sections 749l(d). Congress therefore
understood the importance of working
closely with FLMs in regional haze
planning.
In 1999, EPA plainly understood the
significance of consulting the FLMs
when it promulgated the RHR. See 64
FR 35714, 35747 (July 1, 1999)
(describing land manager consultation
as ‘‘important and necessary’’). Both
times EPA proposed action on
Wyoming’s SIP—in 2012 and again in
2013—EPA reiterated the need to
consult with FLMs when developing a
regional haze implementation plan. 77
FR 33022, 33028 (June 4, 2012); 78 FR
34738, 34744–45 (June 10, 2013).
Against this backdrop, the commenter
explained, EPA’s failure to explain why
EPA believed it did not have to consult
with the FLMs when promulgating its
FIP for Wyoming, let alone comply with
the simple consultation process set forth
in Section 169A(d), is plainly arbitrary
and capricious. Because FLMs play a
critical statutory role in the regional
haze program, there is a substantial
likelihood that EPA’s proposed FIP
would be significantly different if EPA
had complied with Section 169A(d).
Response: EPA agrees that
consultation with the FLMs is an
important aspect of the regional haze
program. EPA has engaged with the
appropriate FLMs on all of its regional
haze actions, including its proposed
actions on the Wyoming regional haze
SIP. While EPA did not include a
summary of the FLMs’ conclusions and
recommendations on the proposed FIP
in the public hearing notices, those
conclusions and recommendations are
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readily available to the public in the
online docket for this rulemaking.54
EPA also disagrees with the
commenter that the consultation
materials contained in the State’s public
notices are irrelevant just because the
State conducted its public hearings
many years ago. The FLMs concluded at
that time that the Wyoming regional
haze SIP did not adequately protect the
State’s Class I areas, and these
conclusions and recommendations
informed EPA when we proposed to
disapprove portions of the Wyoming
regional haze SIP and issue a FIP.
Finally, there is no basis to the
commenter’s claim that EPA’s proposed
FIP would be significantly different if
we had included the FLMs’ conclusions
and recommendations in the public
hearing notices. We carefully
considered the comments of the FLMs
and have responded to them elsewhere
throughout this document. As those
responses explain in more detail, we
have chosen not to change our proposed
NOX BART determinations in all of the
ways in which the FLMs requested. We
point out, however, that had EPA
adopted the FLMs’ recommendations,
we would be requiring SCR on all of the
BART-eligible EGUs in Wyoming, a
result that this particular commenter
has vigorously opposed.
Comment: The processes Congress
required EPA to follow under the
regional haze program were
circumvented. For example, the CAA
requires both states and EPA to consult
with FLMs on regional haze
implementation plans. Public notice of
the FLMs’ conclusions and
recommendations is to occur before
holding a hearing on the plan. While
EPA recites this requirement in its
proposed action, it utterly failed to
include any FLM consultation on behalf
of its agency. EPA held three hearings
and not once in any hearing did the EPA
indicate it had consulted the FLMs in
Wyoming and no conclusions or
recommendations of any consultations
were provided.
Response: See above response.
4. Public Hearings
Comment: EPA’s regional haze plan
promulgation regulations require EPA to
provide public notice at least thirty days
in advance of a hearing on a proposed
implementation plan. 40 CFR 51.102(d)
(a plan hearing ‘‘will be held only after
reasonable notice, which will be
considered to include, at least 30 days
prior to the hearing(s)’’); see also 40 CFR
51.100(i). Although EPA held three
54 EPA–R08–OAR–2012–0026–0134, and EPA–
R08–OAR–2012–0026–0068.
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public hearings on its proposed FIP for
Wyoming, not once did EPA provide the
public at least thirty days advance
notice of the hearing. EPA proposed its
FIP on June 10, 2013 and provided only
fourteen days notice of its hearing on
the proposal. 78 FR 34738, 34738. After
Governor Mead, Wyoming’s
Congressional Delegation, and the
Wyoming Department of Environmental
Quality (DEQ) pointed out to EPA that
fourteen days provided far too
inadequate notice for the public to
understand the proposed FIP and
therefore meaningfully participate in the
public hearing, EPA agreed to hold two
additional hearings. On July 8, 2013,
EPA publicly noticed its plans to hold
the additional hearings on July 17, 2013
and July 26, 2013. 78 FR 40654, 40654.
Thus, although EPA had the
opportunity to correct its errors, it failed
to do so by again providing less than
thirty days notice of its hearings.
Here again, EPA’s noncompliance
with its own regulatory processes is
arbitrary and capricious. EPA cannot
ignore the law for its own benefit
without at least providing a reasoned
justification for doing so. In this case
EPA has provided no such explanation,
thereby rendering its failure an arbitrary
abuse of power. And by shortcutting
public participation, EPA undermined
the central democratic purposes of
notice-and-comment rule-making. Had
EPA honored the law and held itself to
the same standards it holds states, the
public could have more meaningfully
commented on EPA’s proposal. As a
result of that public input, EPA’s
proposed FIP might be considerably
different, assuming, as we must, that
EPA would have considered those
comments with an open mind.
DEQ understands that EPA rushed its
FIP promulgation process in order to
meet the deadlines it consensually
established with a third party in
litigation to which Wyoming was not a
party. But, EPA’s outside arrangements
do not excuse it from complying with
the law, or allow it to shortcut public
participation in the promulgation of a
rule, especially one that will harm
Wyoming. DEQ discourages EPA from
imposing its illegally promulgated FIP
on Wyoming. But, in the event EPA
decides nevertheless to do so, DEQ
encourages EPA to re-propose its FIP in
a manner that complies with the
statutory and regulatory plan
development processes. To do otherwise
is to arbitrarily hold states to a different
plan promulgation standard than EPA
itself adheres to, even though the CAA
makes no such distinction. Such
irrationally unequal treatment is the
essence of arbitrary regulation.
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Response: EPA disagrees with this
comment. First, 40 CFR 51.102(d)
implements the requirement in section
110(a)(2) that state plans ‘‘be adopted by
the State after reasonable notice and
hearing.’’ See 72 FR 38787 (July 16,
2007). When EPA—which is not a
state—promulgates a FIP, EPA instead is
bound by the requirements in section
307(d) of the Act. EPA has not
promulgated specific regulations
governing EPA’s processes under
section 307(d); however, EPA complied
with the public hearing requirements in
307(d) as explained below. The
definition of ‘‘State agency’’ in 51.100(i)
does not contradict this; indeed the
commenter elsewhere protests
vigorously elsewhere that states, not
EPA, are ‘‘primarily responsible for
development and implementation of a
plan under the Act.’’ 40 CFR 51.100(i).
Thus, EPA does not fall under the
definition of ‘‘State agency.’’ We also
note that EPA initially provided a 60day comment period for this action and
then extended it 15 more days; under 40
CFR 51.102. States need only provide a
30-day period for written comments.
See 72 FR at 38788 (‘‘Whether or not a
public hearing is held, the State is
required to provide a 30-day period for
the written submission of comments
from the public.’’).
In promulgating a FIP under CAA
section 110(c), EPA is required to: ‘‘give
interested persons an opportunity for
the oral presentation of data, views, or
arguments, in addition to an
opportunity to make written
submissions; keep a transcript of any
oral presentation; and keep the record of
such proceeding open for thirty days
after completion of the proceeding to
provide an opportunity for submission
of rebuttal and supplementary
information.’’ 55 In this rulemaking, EPA
held three public hearings on its
proposed FIP. In addition to the public
hearing initially scheduled on June 24,
2013 in Cheyenne, Wyoming, additional
public hearings were held on July 17,
2013 in Cheyenne, Wyoming and on
July 26, 2013 in Casper, Wyoming. The
transcripts for those hearings consisted
of 321 pages. These hearings were
announced in the Federal Register on
June 10, 2013 and July 8, 2013,56 and a
pre-publication version of the proposal
was posted on EPA’s Web site prior to
publication in the Federal Register. The
proposal was published in the Federal
Register on June 10, 2013 and was
initially scheduled to close on August 9,
2013. The public comment period was
extended in response to letters received
55 See
56 78
CAA section 307(d).
FR 34738, and 78 FR 40654.
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from the Governor and Congressional
delegation, which are in the docket for
this action, and public comments were
accepted through August 26, 2013, 30
days after the last hearing, as required.
EPA received over 1900 comments on
the reproposal, including over 130
unique comments submitted from
organizations, companies, and
individuals. The major comments
consisted of over 1130 pages, including
attachments. The commenters have not
explained how their ability to comment
was impaired in any way by the
opportunities for public comment that
EPA provided, including three public
hearings and the 75-day comment
period.
Comment: EPA failed to follow its
own rules for providing public notice of
hearings on regional haze
implementation plans. Those rules
require a minimum of 30 days advance
public notice of hearings on
implementation plans. The first notice
in the Federal Register of a public
hearing was issued on June 10, 2013, for
a public hearing to be held on June 24,
2013. EPA issued a second notice for
additional public hearings on July 8,
2013 in the Federal Register. The notice
identified July 17, 2013 and July 26,
2013 as dates set. This provided the
public nine and eighteen days notice of
the respective hearings.
Response: We disagree with this
comment, see above response.
5. RHR and BART Guidelines
Comment: Regardless of the effect of
AFUDC on cost effectiveness as
demonstrated by the Sargent & Lundy
sensitivity analyses, EPA has no
authority, as part of its interpretation of
a non-binding guidance document, to
impose restrictions on the categories of
costs that states can include when
assessing the ‘‘costs of compliance’’ in
a BART determination. EPA has failed
to make a showing that Wyoming’s
compliance with Sections 169A(g)(2) or
otherwise violates governing law.
Including AFUDC is not a lawful ground
for disapproving Laramie River Station
BART, and it is improper to exclude
AFUDC in EPA’s FIP analysis for
Laramie River.
Response: EPA disagrees with this
comment. EPA’s revised costeffectiveness values are consistent with
EPA’s regulations and the parameters
set forth in the Control Cost Manual.
EPA explained in promulgating the
BART Guidelines that ‘‘[s]tates have
flexibility in how they calculate costs.
‘‘See 70 FR at 39127 (July 6, 2005). A
state may deviate from the Control Cost
Manual provided its analysis is
reasonable. EPA independently
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evaluated Sargent & Lundy costeffectiveness calculation, explaining
elsewhere in this document that the
CCM explicitly excludes AFUDC from
control costs, and EPA’s estimates were
correct in excluding AFUDC. See
Oklahoma v. U.S. EPA, 723 F.3d 1201,
1212 (10th Cir. 2013) (‘‘The EPA
therefore had a reasonable basis for
rejecting the 2008 Cost Estimates [that
were based on the overnight costing
method] as not complying with the
guidelines.’’)
Furthermore, as Region 9 explained in
responding to similar comments: 57
EPA disagrees ‘‘with commenters’
assertions that AFUDC is a cost that should
be incorporated into our cost analysis, as it
is inconsistent with CCM methodology. The
utility industry uses a method known as
‘‘levelized costing’’ to conduct its internal
comparisons, which is different from the
methods specified by the CCM. Utilities use
‘‘levelized costing’’ to allow them to recover
project costs over a period of several years
and, as a result, realize a reasonable return
on their investment. The CCM uses an
approach sometimes referred to as overnight
costing, which treats the costs of a project as
if the project were completed ‘‘overnight’’,
with no construction period and no interest
accrual. Since assets under construction do
not provide service to current customers,
utilities cannot charge the interest and
allowed return on equity associated with
these assets to customers while under
construction. Under the ‘‘levelized costing’’
methodology, AFUDC capitalizes the interest
and return on equity that would accrue over
the construction period and adds them to the
rate base when construction is completed
and the assets are used. Although it is
included in capital costs, AFUDC primarily
represents a tool for utilities to capture their
cost of borrowing and return on equity
during construction periods. AFUDC is not
allowed as a capitalized cost associated with
a pollution control device under CCM’s
overnight costing methodology, and is
specifically disallowed for SCRs (i.e., set to
zero) in the CCM.58 Therefore, in reviewing
other BART determinations, EPA has
consistently excluded AFUDC.59
Comment: EPA claims that Wyoming
should have used actual emissions
during the baseline period instead of
calculating baseline emissions from the
actual average heat input and actual
average emission rate. EPA apparently
claims that this deviated from the BART
Guidelines. 78 FR 34773–34774.
57 77 FR 72512, 72531 (Dec. 5, 2012)(BART for
Apache, Cholla and Coronado).
58 CCM (Tables 1.4 and 2.5 show AFUDC value
as zero).
59 See, e.g., 77 FR 20894, 20916–17 (Apr. 6, 2012)
(explaining in support of the North Dakota Regional
Haze FIP, ‘‘we maintain that following the
overnight method ensures equitable BART
determinations . . .’’); 76 FR 52388, 52399–400
(August 22, 2011) (explaining in the New Mexico
Regional Haze FIP that the Manual does not allow
AFUDC).
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However, the Guidelines do not
mandate EPA’s approach. They say,
rather, that the baseline emissions rate
‘‘should represent a realistic depiction
of anticipated annual emissions for the
source’’ and ‘‘in general’’ states should
estimate anticipated emissions based on
actual baseline emissions. 70 FR 39167.
Nothing in the text of the Guidelines
requires states to use any particular
approach to estimate future emissions.
The Guidelines were constructed to
assist the states in making cost
assessments, not to mandate the same
assessment and the same results in
every case by use of mandatory
checklists. The word ‘‘should’’ in the
Guidelines makes clear there is no
mandatory action required. See Aragon
v. United States, 146 F.3d 819, 826
(10th Cir. 1998) (describing Air Force
Manual 85–14’s use of the word
‘‘should’’ as ‘‘suggestive, rather than
mandatory language’’ in a Federal Tort
Claims Act case); In re Glacier Bay, 71
F.3d 1447, 1452–53 (9th Cir. 1995)
(interpreting the National Oceanic and
Atmospheric Administration’s use of
the word ‘‘should’’ in manuals and
instructions as ‘‘suggestive’’ language
conferring hydrographers with
discretion); Culbert v. Young, 834 F.2d
624, 628 (7th Cir. 1987) (holding that
use of the word ‘‘should’’ in a
Wisconsin Administrative Code
provision governing inmate discipline
‘‘only advises the security director on
what criteria to consider but does not
require him to consider them,’’ and
explaining that ‘‘[t]he word ‘should,’
unlike the words ‘shall,’ ‘will,’ or ‘must,’
is permissive rather than mandatory’’).
See also Dickson v. Sec’y of Defense, 68
F.3d 1396, 1401 (D.C. Cir. 1995) (‘‘When
a statute uses a permissive term such as
‘may’ rather than a mandatory term such
as ‘shall,’ this choice of language
suggests that Congress intends to confer
some discretion on the agency, and that
courts should accordingly show
deference to the agency’s
determination.’’) (emphasis omitted).
EPA is therefore merely disagreeing
with a judgment call made by the State,
not pointing to violation of a mandatory
methodology. And, even though not
required to do so, Wyoming did follow
the recommendation in the Guidelines.
Although EPA contends that the State
used a baseline based on annual average
heat input for 2001–2003 and an
emission rate of 0.27 rather than the
‘‘actual annual average’’ emissions, 78
FR 34773–34774, the State’s May 28,
2009 BART Analysis actually says
‘‘[b]aseline emissions [are] based on
continuous emissions monitoring (CEM)
annual averages for 2001–2003.’’
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But even if EPA were correct, EPA
would still be wrong in asserting that
the State failed to follow the BART
Guidelines. The approach that EPA
objects to would be an appropriate
method to realistically depict
anticipated annual emissions. Certainly
it would be reasonable to multiply the
actual annual amount of heat in Laramie
River coal during the baseline period by
the same baseline emission rate of 0.27
lb/MMBtu that was used by EPA’s own
consultant. 78 FR at 34773; Review of
Estimated Compliance Costs for
Wyoming Electric Generating (EGUs)—
Revision of Previous Memo, memo from
Jim Staudt, Andover Technology
Partners, to Doug Grano, EC/R, Inc., Feb.
7, 2013 (‘‘Andover Report’’) at 15 Table
4, EPA docket cite EPA–R08–OAR–
2012–0026–0086. Any estimate of
anticipated emissions is necessarily a
projection, and by definition cannot
require exclusive reliance on past actual
emissions.
That the State’s approach to baseline
emissions was a realistic projection is
borne out by the fact that the annual
baseline emissions the State used to
calculate cost effectiveness for Laramie
River differs from EPA’s baseline by
only the following de minimis amounts:
269 tons higher than EPA’s 6051 tons
for Unit 1, a difference of only 4%; 8
tons lower than EPA’s 6285 tons for
Unit 2, a difference of only 0.1%; and
73 tons higher than EPA’s 6375 tons for
Unit 3, a difference of only 1%. No fair
assessment could conclude that such de
minimis differences violate the
Guidelines or yield an ‘‘implausible’’
result so extreme as to be arbitrary and
capricious. 78 FR 34773–34776.
If EPA’s values are realistic, the
State’s values are realistic. There is no
material difference between them. The
objective of a BART determination is to
arrive at a technology selection that
weighs and takes into account the five
BART factors. The negligible difference
between EPA’s baseline emissions and
the State’s is not material and therefore
is not a valid ground for disapproving
the State’s NOX BART for Laramie
River, and EPA has made no effort to
show otherwise. EPA’s role is not to fly
speck each and every aspect of the
BART process in a search for reasons to
disapprove the State’s determination.
In fact, EPA proposes to approve other
BART determinations made by
Wyoming despite the same alleged
‘‘errors,’’ unequivocally demonstrating
that its disagreement with Wyoming’s
approach to baseline calculations does
not amount to proof of a legal violation
by the State. EPA claims that for several
Wyoming sources subject to BART,
Wyoming committed the same ‘‘cost and
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visibility errors’’ that EPA claims for
Laramie River, but proposes nonetheless
to approve the BART determinations for
these sources ‘‘because we have
determined that the State’s conclusions
were reasonable despite the cost and
visibility errors.’’ 78 FR 34750. EPA
contradicts itself when it overlooks
errors for other sources and yet claims
those same ‘‘errors’’ as per se reasons to
disapprove BART for Laramie River
Station. Such inconsistent treatment is
erroneous. See W. States Petroleum v.
EPA, 87 F.3d 280, 282 (9th Cir. 1996).
EPA’s own behavior therefore
demonstrates that the baseline used for
Laramie River is not a material
departure from any requirement and is
not a basis for disapproval of the State’s
BART determination. EPA is stretching
to find any excuse to impose its own
technology preferences, contrary to law.
Wyoming’s choice of baseline
emissions is neither inconsistent with
the BART Guidelines nor materially
different from EPA’s allegedly correct
baseline emissions, and therefore is not
a valid ground for disapproving
Wyoming’s NOX BART for Laramie
River.
Response: We disagree with some
aspects of this comment, but agree with
others. First, we disagree with the
commenter’s characterization of the
BART Guidelines as other than
mandatory in the case of Laramie River
Station, including in regard to how
baseline emissions are calculated. The
generating capacity of Laramie River
Station of 1,705 MW surpasses the
threshold of 750 MW used to determine
whether the BART Guidelines must be
applied. As stated in the RHR: ‘‘The
determination of BART for fossil-fuel
fired power plants having a total
generating capacity greater than 750
megawatts must be made pursuant to
the guidelines in appendix Y of this part
(Guidelines for BART Determinations
Under the Regional Haze Rule).’’ 60
Moreover, the commenter’s attempts to
turn ‘‘should’’ into ‘‘may’’ are of no
avail. Because the BART Guidelines are
mandatory for EGUs larger than 750
MW, EPA’s use of the word ‘‘should’’
indicates a mandate, not a suggestion.
Elsewhere in the Guidelines, EPA uses
‘‘may’’ when EPA means ‘‘may.’’ See,
e.g. 40 CFR Part 51, App’x Y, II.A.4 (‘‘In
order to simplify BART determinations,
States may choose to identify de
minimis levels of pollutants at BARTeligible sources (but are not required to
do so).’’) (emphasis added).
Furthermore, the Tenth Circuit Court of
Appeals has interpreted ‘‘should’’ in the
Guidelines to mean ‘‘required.’’ See
60 40
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Oklahoma v. U.S. EPA, 723 F.3d 1201,
1213 (10th Cir. 2013) (‘‘The guidelines
require that states provide support for
any site-specific costs that depart from
the generic numbers in the Control Cost
Manual. See 40 CFR part 51 app.
Y(IV)(D)(4)(a) n.15 (‘‘You should
include documentation for any
additional information you used for the
cost calculations, including any
information supplied by vendors that
affects your assumptions regarding
purchased equipment costs, equipment
life, replacement of major components,
and any other element of the calculation
that differs from the Control Cost
Manual.’’)’’) (emphasis added).
Notwithstanding that the BART
Guidelines are mandatory for Laramie
River Station, we agree that Wyoming’s
approach, having used both the actual
NOX emission rate and the actual heat
input from the baseline period, resulted
in a realistic depiction of anticipated
annual emissions consistent with the
BART Guidelines, that these emissions
differed only slightly from baseline
emissions estimated by EPA and that,
therefore, Wyoming’s treatment of
baseline emissions by itself was not a
basis for EPA to disapprove NOX BART
for Laramie River Station. Nonetheless,
as discussed in response to other
comments, we maintain that there were
other deficiencies in Wyoming’s BART
analysis for Laramie River Station that
remain a valid basis for our disapproval.
Most notably, Wyoming did not
consider the visibility impacts of SNCR
as required by the CAA and BART
Guidelines.
Comment: Against its longstanding
30-year history of interpreting and
applying the RHR and Guidelines, EPA
has now embarked on a spate of BART
disapprovals demonstrating that the
agency is now interpreting and applying
the Guidelines and CCM very differently
than it did in the past, and signaling that
EPA has actually decided to reinterpret
the statute and Guidelines without
notice and comment to the states.
EPA is manufacturing requirements in
the Guidelines that do not exist, for the
purpose of abandoning the
administrative structure conferring state
primacy that Congress created with both
the CAA generally and the Regional
Haze Statute in particular. EPA is doing
so by interpreting the BART Guidelines
and CCM as setting forth detailed,
mandatory regulatory requirements that
are not actually in the text, and by
seeking to make any deviation from the
recommendations in the Guidelines or
CCM grounds for voiding states’ BART
choices.
EPA is attempting to convert
recommendations into mandates. This
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new interpretation of the Guidelines
and Cost Manual is erroneous, contrary
to their statutory role, unannounced,
and calculated to federalize BART
decisions by making them all follow
identical paths whether or not local
considerations and costs warrant
separate treatment in control decisions.
Response: Our proposal clearly laid
out the bases for our proposed approval
and disapproval of the State’s BART and
reasonable progress determinations, as
well as other SIP elements. We have
relied on the standards contained in our
regional haze regulations and the
authority that Congress granted us to
review and determine whether SIPs
comply with the minimum statutory
and regulatory requirements.61 To the
extent we have found that the State’s
cost analysis relies on values that do not
conform to applicable requirements of
the Act and regulations, we have
disapproved those elements of the
analysis. To the extent the state has
considered visibility improvement from
potential emissions controls in a way
that is inconsistent with the CAA and
regulations, we have disapproved those
elements of the analysis.
Where, as explained in our proposed
notice and final notice, a state
determines that a less stringent control
technology is the ‘‘best available,’’ as
was the case here with regard to NOX
emissions, the state must justify its
decision by explaining how the BART
factors led it to choose that level of
control over more stringent options. See
70 FR 39170–71. While a state has
significant discretion regarding how to
conduct its BART analysis, EPA must
ultimately ensure that the state has
demonstrated it has a reasoned basis,
consistent with the Act’s requirements,
for determining that a given emissions
control technology is ‘‘the best
available’’ for each source. See
Oklahoma, 723 F.3d at 1208 (‘‘[W[hile
it is undoubtedly true that the statute
gives states discretion in balancing the
five BART factors, it also mandates that
the state adhere to certain requirements
when conducting a BART analysis.’’).
In determining SIP adequacy, we
inevitably exercise our judgment and
61 EPA is responsible for reviewing Statesubmitted SIPs and SIP revisions to ensure that they
‘‘meet[ ] all of the applicable requirements of [the
Act].’’ CAA Section 110(k)(3); see also CAA Section
110(l) (EPA shall not approve SIP revision if it
would interfere with ‘‘any . . . applicable
requirement of this chapter’’); Oklahoma, 723 F.3d
at 1204 (EPA reviews all SIPs to ensure plans
comply with the Act). There is nothing unusual
about regional haze SIPs in this regard—they, like
any other SIPs, must be reviewed by EPA, and may
be approved only if they meet all applicable
requirements of the Act, including provisions
related to visibility. See Oklahoma, 723 F.3d at
1207; North Dakota, 730 F.3d at 756–57.
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expertise regarding technical issues, and
it is entirely appropriate that we do so.
Courts have recognized this necessity
and deferred to our exercise of
discretion when reviewing SIPs. See,
e.g., Connecticut Fund for the Env’t.,
Inc. v. EPA, 696 F.2d 169 (2nd Cir.
1982); Michigan Dep’t. of Envtl. Quality
v. Browner, 230 F.3d 181 (6th Cir. 2000);
Mont. Sulphur & Chem. Co. v. EPA, 666
F.3d 1174, 1190 (9th Cir. 2012) cert.
denied, 133 S. Ct. 409, (2012). Contrary
to the commenter’s assertion, we have
not abandoned the State’s primacy. In
fact, we have approved the vast majority
of the State’s determinations. We are
only disapproving the State’s analyses
and decisions that do not conform to the
CAA and regulations. We are authorized
to do so.
Comment: As early as 1979, EPA
recognized that the regional haze
program is organized around ‘‘goals’’
and ‘‘reasonable progress,’’ and not hard
objective requirements: Section 169A of
the CAA provides for consideration of
the degree or significance of visibility
improvement, costs, energy, and other
factors in applying retrofit controls to
major sources and in making
‘‘reasonable’’ progress toward the
national goal. These provisions indicate
that some flexibility can be allowed in
implementing control programs for
remedying existing impairment and that
priorities can be established.
Thus, while the BART analysis may
include consideration of factors similar
to those applied in a BACT analysis,
BART does not require any threshold
level of control. As EPA acknowledged
in its 2004 re-proposal of the BART
Guidelines, ‘‘for the BART analysis,
there is no minimum level of control
required.’’ 69 FR. 25184, 25219 (May 5,
2004). The RHR’s ‘‘national goal’’ is not
a mandate but, rather, a foundation for
analytical tools to be used by the states
in setting RPGs. The BART Guidelines
were therefore developed to assist states
in making their own BART
determinations by providing analytical
tools. They were not designed or
intended by Congress to impose
inflexible mandates that become
tripwires for EPA to use as a means of
federalizing BART decisions with set
criteria. EPA’s current effort to convert
the Guidelines into something they were
not intended to be is improper and
calculated to shift to EPA authority over
BART determinations that Congress
reserved to the states. ‘‘[A]n agency
cannot create regulations which are
beyond the scope of its delegated
authority.’’ Nagahi v. INS, 219 F.3d
1166, 1169 (10th Cir. 2000). Nor can an
agency reinterpret regulations for that
purpose.
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Congress authorized EPA to provide
guidelines only as to limited aspects of
a state’s BART decision-making process,
and left the majority of that process to
the states’ discretion. Specifically, in the
subsection immediately preceding the
reference to the Guidelines, Congress
directed EPA to conduct a study on
available methods for implementing the
national goal and provide
recommendations to Congress for (1)
‘‘methods for identifying,
characterizing, determining,
quantifying, and measuring visibility
impairment in Federal areas’’; (2)
‘‘modeling techniques (or other
methods) for determining the extent to
which manmade air pollution may
reasonably be anticipated to cause or
contribute to such impairment’’; and (3)
‘‘methods for preventing and remedying
such manmade air pollution and
resulting visibility impairment.’’ CAA
Sections 169A(a)(3)(A)–(C), 42 U.S.C.
7491(a)(3)(A)–(C).
In the next subsection, Congress
directed EPA to promulgate
regulations—but with any regulation of
the states’ BART determinations
confined to those limited areas on
which EPA had been directed to
conduct studies and make a report to
Congress. Specifically, CAA Section
169(b) provides, in pertinent part, that
the regulations ‘‘shall—(1) provide
guidelines to the States, taking into
account the recommendations under
subsection (a)(3) of this section on
appropriate techniques and methods for
implementing this section (as provided
in subparagraphs (A) through (C) of
such subsection (a)(3)), and (2) require
each applicable implementation plan for
a State . . . to contain such emission
limits, schedules of compliance and
other measures as may be necessary to
make reasonable progress toward
meeting the national goal.’’ Id. Sections
7491(b)(1)–(2).
Accordingly, Congress only
authorized EPA to promulgate
regulations or guidelines on the
identification and measurement of
visibility impairment, the methods for
measuring and predicting future
visibility impairment, the methods for
preventing and remedying air pollution
and resulting visibility impairment, and
the CAA’s general requirement that
states develop SIPs to include the BART
and reasonable progress determinations
required by the RHR. Congress did not
authorize EPA to promulgate regulations
or guidelines mandating exactly how
the states should conduct their BART
analyses, and made clear that the
purpose of the guidelines was to
provide ‘‘recommendations’’ to the
states.
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Consistent with the statute and
regulations, the BART Guidelines
contemplate a two-step process: (1) the
‘‘Attribution Step,’’ which consists of
analyzing which sources are
appropriately subject to BART controls;
and (2) the ‘‘Determination Step,’’
which consists of determining, based on
the five statutory BART factors, an
appropriate level of control. 70 FR
39108, 39126; see also Utility Air
Regulatory Group, 471 F.3d at 1335–36
(discussing two-step process). The
Guidelines for the Determination Step
are designed as a ‘‘step-by-step guide’’
for states to identify the ‘‘best system of
continuous emissions control
technology,’’ taking into account the
five BART factors. 70 FR 39127. See also
id. at 39158 (the Guidelines describe a
‘‘process for making BART
determinations’’). They are merely
‘‘helpful guidance’’ for sources other
than power plants with a capacity
greater than 750 MW. Id. at 39108;
Utility Air Regulatory Group, 471 F.3d
at 1339. Yet, even for larger power
plants, the Guidelines are procedural in
nature, setting forth criteria for
evaluating control alternatives, but not
mandating a substantive result. As EPA
acknowledges, to mandate a choice of
technology would infringe on ‘‘those
areas where the Act and legislative
history indicate that Congress evinced a
special concern with insuring that
States would be the decision makers.’’
70 FR 39137. See also id. at 39107 (‘‘The
State must determine the appropriate
level of BART control’’).
The flexibility afforded by the
Guidelines is critical to ensuring that
states maintain primacy in making
BART determinations. When EPA reproposed the Guidelines in 2004, for
example, EPA requested comment on a
sequential process—similar to a BACT
analysis—for considering the five
statutory BART factors. 69 FR 25197–
25198. In the final rule, however, EPA
concluded that ‘‘States should retain the
discretion to evaluate control options in
whatever order they choose, so long as
the State explains its analysis of the
CAA factors.’’ 70 FR 39130. EPA also
expressed that the Guidelines confer
authority on the state to make ‘‘a BART
determination based on the estimates
available for each criterion, and as the
CAA does not specify how the state
should take these factors into account,
the states are free to determine the
weight and significance to be assigned
to each factor.’’ Id. at 39123.
EPA further emphasized the
flexibility inherent in each step of the
BART determination: ‘‘States have
flexibility in how they calculate costs,’’
id. at 39127, and ‘‘have the flexibility to
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5085
develop their own methods to evaluate
model results,’’ id. at 39108. EPA points
out that ‘‘States should have flexibility
when evaluating the fifth [visibility]
statutory factor.’’ Id. at 39129. See also
id. (‘‘Because each Class I area is
unique, we believe States should have
flexibility to assess visibility
improvements due to BART controls by
one or more methods, or by a
combination of methods . . .’’). Even
the presumptive emission limits for
power plants greater than 750 MW ‘‘are
presumptions only; in making a BART
determination, states have the ability to
consider the specific characteristics of
the source at issue and to find that the
presumptive limits would not be
appropriate for that source.’’ Id. at
39134.
Response: EPA agrees that states play
an important role in the regional haze
program. However, EPA disagrees that
this action conflicts with the State’s
statutory role or that this rule is beyond
EPA’s authority. First, the regional haze
program explains that EPA ‘‘shall . . .
require each applicable implementation
plan for a State . . . to contain such
emission limits, schedules of
compliance, and other measures as may
be necessary to make reasonable
progress toward meeting the national
goal.’’ 42 U.S.C. 7491(b)(2). The CAA
makes clear that EPA is statutorily
obligated to reject a SIP that would
‘‘interfere with any applicable
requirement concerning attainment and
reasonable further progress . . . or any
other applicable requirement of this
chapter.’’ 42 U.S.C. 7410(l). Thus the
CAA provides EPA with the authority to
review and reject an inadequate regional
haze SIP. Oklahoma v. EPA, 723 F.3d
1201, 1207 (10th Cir. 2013); North
Dakota v. EPA, 730 F.3d 750 (8th Cir.
2013).
Second, EPA is required to establish
guidelines to ensure that states achieve
the visibility goals set forth in the Act.
42 U.S.C. 7491(b)(1). EPA agrees that
states have some flexibility in BART
determinations, but that flexibility is
limited and states must provide EPA
with reasoned analysis for their SIP
decisions. Oklahoma v. EPA, 723 F.3d
1201, 1207 (10th Cir. 2013) (noting that
while ‘‘it is undoubtedly true that the
statute gives states discretion in
balancing the five BART factors, it also
mandates that the state adhere to certain
requirements when conducting a BART
analysis’’); North Dakota v. EPA, 730
F.3d 750 (8th Cir. 2013) (explaining EPA
is not required to ‘‘approve a BART
determination that is based upon an
analysis that is neither reasoned nor
moored to the CAA’s provisions’’). The
regional haze guidelines provide states
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with methods to determine BART that
EPA considers reasonable, although
states may consider methods not
provided for in the guidelines in certain
circumstances. For example, in
explaining a state’s flexibility to
determine costs, the guidelines note that
‘‘if there are elements or sources that are
not addressed by the Control Cost
Manual or there are additional cost
methods that could be used, we believe
that these could serve as useful
supplemental information.’’ 70 FR No.
128 39127. (July 6, 2005). A state,
however, must demonstrate that any
methods it has used to determine BART
that are not found within the guidelines
are reasonable.
EPA may, and has, approved state
BART determinations that do not rigidly
follow the BART guidelines, so long as
the state’s determinations are
reasonable. Here, however, Wyoming’s
methods were inconsistent with the
BART guidelines, unreasonable, and
inconsistent with the CAA’s statutory
and regulatory requirements, as
explained elsewhere in these comments.
Nothing in this rule displaces a state’s
discretion to balance the five factors, if
the state calculates the factors using
reasonable methods that are consistent
with the regulatory and statutory
requirements of the CAA.
Comment: EPA is now construing the
BART Guidelines to treat
‘‘recommendations’’ as ‘‘mandates’’
such that states no longer have the
authority to vary from the
recommendations, however
insignificantly, without finding EPA
disapproving their BART
determinations. Such an interpretation
violates both the plain language of the
CAA and its underlying cooperative
federalism structure. First, Section
169A(b)(2)(A) provides that BART shall
‘‘be determined by the State.’’ 42 U.S.C.
7491(b)(2)(A). Section 169A(g)(2)
provides that states are to determine the
‘‘costs of compliance’’ and the ‘‘degree
of improvement in visibility.’’ Id.
Section 7491(g)(2). Any interpretation
and application of the BART Guidelines
and CCM that has the effect, whether
directly or indirectly, of mandating
particular outcomes or approaches to
reaching a BART determination invades
state authority. States do the cost of
compliance and visibility assessments,
not EPA. Treating recommendations as
mandates has the effect of forcing all
states to follow each recommendation
precisely the same way, effectively
federalizing the BART determination by
affording EPA the authority to employ
the SIP approval process as a means of
forcing all states to take the same
approach required by EPA in all cases
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or find their independent decisions
overruled. This violates the structure
and design by Congress, and conflicts
with the congressional commitment of
the BART decision to the States.
American Corn Growers, 291 F.3d at 7–
10. This problem did not exist when
EPA historically construed the
‘‘recommendations’’ in the Guidelines
to be ‘‘recommendations’’ rather than
mandates, but EPA’s current approach
of identifying deviations from the CCM
or from the ‘‘recommendations’’ of the
Guidelines as ‘‘errors of law’’ destroys
state primacy and thus conflicts with
the plain language of the statute and is
unreasonable and not entitled to
deference.
EPA’s interpretation of the BART
Guidelines violates Section 169A of the
CAA because it also restricts state
discretion in the decision-making
process. It is the states, not EPA, that are
authorized to determine BART. 42
U.S.C. 7491(b). In doing so they are
directed to take into consideration the
five BART factors—costs of compliance,
energy and non-air quality
environmental impacts of compliance,
any existing pollution control
technology in use at the source, the
remaining useful life of the source, and
the improvement in visibility that
would be achieved by the use of control
technology. Id. Section 7491(g)(2). The
states must determine how to balance
these factors, and how much weight to
give each of the factors, on a case-bycase basis.
However, EPA interprets the BART
Guidelines as authorizing it to
disapprove the State’s BART
determination based on alleged
technical failures to follow each and
every paragraph and recommendation in
the Guidelines. By relying on isolated
instances of alleged deviation from the
Guidelines, such an interpretation
totally undermines the State’s
prerogative to determine how to weigh
and balance all factors and therefore
conflicts directly with the statutory
grant of authority to the states to make
BART determinations in accordance
with all five BART factors. Section 169A
does not tell the states how to take the
factors into account, nor does it describe
how each of the factors must be treated.
The provision directing EPA to provide
guidelines to the states, id. Section
7491(b)(1), must be read in concert with
the broad grant of authority and
discretion to states, and does not change
the fundamental thrust of the statute.
EPA’s interpretation that states are
constrained to dot every ‘‘i’’ and cross
every ‘‘t’’ the way EPA insists directly
conflicts with the statute’s grant of
BART decision making authority to the
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states. If the BART Guidelines mean
what EPA claims they mean, the
Guidelines violate the CAA.
Response: As explained elsewhere in
this document, we disagree with the
commenter’s assertions. The CAA does
not give states unlimited discretion to
determine BART; EPA retains the same
supervisory role it has with respect to
any SIP submission. We also disagree
that our proposal is inconsistent with
the American Corn Growers decision.
We have determined that Wyoming
utilized flawed cost assessments and
incorrectly estimated the visibility
impacts of controls. We have
determined these issues resulted in nonapprovable BART determinations for the
units for which we proposed a FIP. We
recognize the State’s broad authority
over BART determinations, and
recognize the State’s authority to
attribute weight and significance to the
statutory factors in making BART
determinations. As a separate matter,
however, a state’s BART determination
must be reasoned and based on an
adequate record. Although we have
largely approved the State’s regional
haze SIP, we cannot agree that CAA
requirements are satisfied with respect
to certain specific BART determinations
and other necessary FIP elements.62
Comment: The BART Guidelines
provide that the ‘‘basis for equipment
costs estimates’’ should be documented.
Id. at 39166. The Guidelines give states
the option of using ‘‘data supplied by an
equipment vendor (i.e., budget estimates
or bids) or by a referenced source (such
as the Cost Manual, fifth Edition,
February 1996, EPA 453/B–96–001).’’
Id.3.
In footnote language, the Guidelines
reiterate that costs should be
documented, including ‘‘any
information supplied by vendors that
affects your assumptions regarding
purchased equipment costs, equipment
life, replacement of major components,
and any other element of the calculation
that differs from the Control Cost
Manual.’’ Id. at 39167 n.15. EPA relies
heavily on this footnote to assert that
states, including Wyoming, have failed
to comply with the Guidelines because
they have not adequately documented
strict compliance with the CCM. This is
an erroneous and unreasonable
interpretation of the Guidelines. When
read in conjunction with the CAAwhich bestows substantial discretion on
the states in making BART
62 The commenter cannot challenge EPA’s duly
promulgated regulations and Guideline. Indeed, the
time for such a challenge has long passed, since the
Guidelines were promulgated July 6, 2005, and
could only have been challenged within 60 days.
70 FR 39,104; 42 U.S.C. 7607(b), (d)(1)(J).
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determinations—and other statements
made in the BART Guidelines and the
preamble, this footnote language does
not require states to supply vendor
quotes or other specific information
documenting every single deviation
from the CCM, nor does it confer
authority on EPA to reject a state’s
BART determination when the state
fails to do so. Cf. United Savings Ass’n
v. Timbers of Inwood Forest Assocs.,
484 U.S. 365, 371 (1988) (a provision
read in isolation ‘‘is often clarified by
the remainder of the statutory scheme
. . . because only one of the permissible
meanings produces a substantive effect
that is compatible with the rest of the
law’’); United States v. Boisdore’s Heirs,
49 U.S. 113, 122 (1850) (‘‘[W]e must not
be guided by a single sentence or
member of a sentence, but look to the
provisions of the whole law, and to its
object and policy.’’).
Treating the CCM as a binding
checklist conflicts with the CAA, both
in a general sense, by attempting to
mandate exactly how a state must
evaluate and apply the five BART
factors, and in a specific sense, by
excluding certain costs from
consideration in a BART analysis in the
face of statutory language mandating
that BART be determined based on the
actual ‘‘costs of compliance,’’ not some
artificial costs of compliance. As to the
first issue, EPA itself has recognized
that the CCM is ‘‘a good reference tool,’’
which can be supplemented ‘‘if there
are elements or sources that are not
addressed by the Control Cost Manual
or there are additional cost methods that
could be used.’’ 70 FR at 39127. ‘‘States
have flexibility in how they calculate
costs,’’ which is not appropriately
circumscribed by recommendations set
out in a non-binding manual. See id. See
also id. at 39153 (States retain discretion
in considering ‘‘a number of the factors
set forth in section 169A(g)(2), including
the costs of compliance’’). As to the
second issue, EPA cannot cite to or rely
upon the CCM to challenge any decision
by the states taking into account actual
rather than theoretical costs, because the
statute requires that real costs be
considered. CAA Section 169A(g)(2), 42
U.S.C. 7491(g)(2). The CCM does not
impose binding obligations on states
undertaking BART determinations, and
failure to comply with its overly general
and non-source specific
recommendations is not grounds for
rejection of a state’s analysis of the costs
of compliance.
Additionally, the CCM has not been
subject to notice and comment under
the APA, 5 U.S.C. 701–706; it has not
been published in the Code of Federal
Regulations (CFR); and it is not formally
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incorporated by reference into the BART
Guidelines. Therefore, it is merely a
policy statement that is not binding on
the states. Furthermore, simply
referencing the CCM in the BART
Guidelines is not adequate to make that
non-binding guidance document legally
enforceable. ‘‘Agency statements ‘having
general applicability and legal effect’ are
to be published in the Code of Federal
Regulations.’’ NRDC v. EPA, 559 F.3d
561, 564 (D.C. Cir. 2009), citing 1 CFR
8.1(a). See also Brock v. Cathedral Bluffs
Shale Co., 796 F.2d 533, 539 (D.C. Cir.
1986) (‘‘The real dividing point between
regulations and general statements of
policy is publication in the Code of
Federal Regulations, which the statute
authorizes to contains only documents
‘having general applicability and legal
effect . . .’ ’’) (emphasis in original).
Accordingly, EPA’s assertion that a state
has failed to comply with the BART
Guidelines by using costing
methodology other than that set forth in
the CCM is contrary to federal law and
is arbitrary and capricious.
Federal regulations require that in
order for material to be formally
incorporated by reference into the
Federal Register and the CFR, EPA must
seek approval from the Director of the
Federal Register. 1 CFR 51.1. Documents
are eligible for incorporation only if
they meet certain criteria; incorporation
of a document ‘‘produced by the same
agency that is seeking its approval’’ is
generally inappropriate unless the
Director of the Federal Register finds
that the document also ‘‘possess[es]
other unique or highly unusual
qualities.’’ Id. Section 51.7(a)–(b).
Furthermore, language incorporating a
publication by reference must be ‘‘as
precise and complete as possible,’’
including a statement that the document
is ‘‘incorporated by reference’’ and
‘‘[i]nform[ing] the user that the
incorporated publication is a
requirement.’’ Id. Section 51.9(b)(1), (3).
Finally, dynamic incorporations into the
CFR are prohibited. Id. Section 51.1(f)
(‘‘Incorporation by reference of a
publication is limited to the edition of
the publication that is approved. Future
amendments or revisions of the
publication are not included.’’). See also
76 FR 33590, 33593 (June 8, 2011)
(OSHA noting that ‘‘it cannot
incorporate by reference the latest
editions of consensus standards without
undertaking new rulemaking because
such action would . . . deprive the
public of the notice-and-comment
period required by law’’).
EPA has not complied with the
requirements for incorporating the CCM
into the regulations directing states to
undertake BART Determinations or into
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the BART Guidelines. The regulations
make no mention of the CCM. The
BART Guidelines reference the CCM,
but do not indicate that EPA was
seeking approval for incorporation by
reference; and, in any event, it is
unlikely that the CCM meets the
requirements for incorporation by
reference. Additionally, the Guidelines
reference the 5th edition of the CCM but
direct states to use the most recent
version of the CCM, 70 FR 39167 n.14,
and dynamic incorporation is expressly
prohibited by the regulations governing
incorporation by reference, 1 CFR
51.1(f). Where EPA has failed to comply
with the requirements for incorporation
by reference, the referenced material is
‘‘ineffective to impose obligations upon,
or to adversely affect’’ third parties.
NRDC v. Train, 566 F.2d 451, 457 (D.C.
Cir. 1977). Therefore, the CCM does not
constitute binding law, and EPA has no
authority to reject Wyoming’s BART
determinations on grounds the State
allegedly strayed from the CCM’s cost
methodology.
Response: EPA disagrees with this
comment. First, with regards to noticeand-comment procedures, the BART
Guidelines, including the references
within them to the Control Cost Manual,
have gone through appropriate public
comment procedures and the time to
challenge the BART Guidelines’
references to the CCM has passed. If the
commenter believes the BART
Guidelines improperly incorporated by
reference the CCM, the commenter
could have requested judicial review
within 60 days of the publication of the
BART Guidelines in the Federal
Register. We note that the BART
Guidelines have indeed been published
in the Code of Federal Regulations, in
Appendix Y to Part 51 of Title 40. In
addition, the reference to the CCM in
Appendix Y provides adequate notice to
the public that EPA intended the most
recent version of the CCM to be used,
and provides a link to the CCM itself.
Moreover, the very action that we are
completing today has gone through
notice-and-comment procedures. Thus,
the public has had full opportunity to
comment on our application of the
CCM. Furthermore, the commenter’s
arguments that incorporation by
reference is necessary for anything with
binding legal effect miss the mark. The
BART Guidelines do not contain a
legally binding requirement to use the
CCM, because as we explain next, the
Guidelines clearly state that states may
deviate from the CCM.
Commenter mischaracterizes EPA’s
use and application of the Control Cost
Manual. EPA’s revised costeffectiveness values are consistent with
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CAA and RHR requirements. EPA
explained in issuing the BART
Guidelines that ‘‘[s]tates have flexibility
in how they calculate costs.’’ See 70 FR
at 39127 (July 6, 2005). A state may
deviate from the Control Cost Manual
provided its analysis is reasonable and
the deviations are documented. Here, as
discussed elsewhere in this document,
Wyoming’s cost-effectiveness values
were not reasonable. We disagree with
commenter’s view that our cost analysis
is improper, but we agree that the CCM
is not the only source of information for
the BART analysis. For instance, the
reference to the CCM in the BART
Guidelines clearly recognizes the
potential limitations of the CCM and the
need to consider additional information
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The basis for equipment cost estimates also
should be documented, either with data
supplied by an equipment vendor (i.e.,
budget estimates or bids) or by a referenced
source (such as the OAQPS Control Cost
Manual, Fifth Edition, February 1996, EPA
453/B–96–001). In order to maintain and
improve consistency, cost estimates should
be based on the OAQPS Control Cost Manual,
where possible. The Control Cost Manual
addresses most control technologies in
sufficient detail for a BART analysis. The
cost analysis should also take into account
any site-specific design or other conditions
identified above that affect the cost of a
particular BART technology option.63
As to unusual circumstances, the
BART Guidelines call for
‘‘documentation’’ to be provided for
‘‘any unusual circumstances that exist
for the source that would lead to costeffectiveness estimates that would
exceed that for recent retrofits,64 which
as discussed elsewhere in this final
notice were not provided.
Comment: If EPA is making a BART
determination as part of a FIP, it must
comply with the RHR. Section
169A(g)(2) requires the BART
determination to take into consideration
five statutory factors. These factors
‘‘were meant to be considered together’’
to arrive at a single judgment: a BART
emission limit. Am. Corn Growers, 291
F.3d at 6. EPA’s proposed FIP, however,
does not present a discussion, finding,
or evaluation of the five statutory factors
taken together. Instead, EPA merely
states that it proposes to find that
Wyoming’s BART analysis fulfills all of
the BART requirements except as to
cost-effectiveness and visibility benefits.
EPA then proposes to engraft onto
Wyoming’s consideration of the five
statutory BART factors its own costeffectiveness and visibility analysis, to
arrive at the conclusion that SCR is
63 70
64 70
FR 39104, 39166.
FR 39104, 39168.
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BART. This fails to comply with the
statute. The selection of the BART
emission limit is arrived at by
considering all five BART factors taken
together. This requires, for example, that
the selection of SCR as BART represents
an acceptable balancing of energy and
non-air quality environmental factors.
When Wyoming made this assessment,
however, it was considering LNBs and
OFA, and thus its conclusion—which
EPA proposes to approve—noted that
‘‘combustion control using LNB with
OFA does not require non-air quality
environmental mitigation for the use of
chemical reagents (i.e., ammonia or
urea) and there is a minimal energy
impact.’’ This weighing of statutory
factors does not discuss or apply SCR,
and therefore cannot be adopted by EPA
to support its own BART emissions
limit in its FIP. EPA is therefore
proposing a BART emission limit
without independently considering the
five statutory BART factors, in violation
of Section 169A(g)(2).
Nor does EPA articulate any reasoning
supporting its proposed BART emission
limit that applies all of the statutory
factors. This violates EPA’s obligation to
cogently explain and articulate each
step in its reasoning for proposed
action. State Farm, 463 U.S. at 48 (‘‘[A]n
agency must cogently explain why it has
exercised its discretion in a given
manner.’’). In fact, even as to the costeffectiveness and visibility
improvements EPA relies upon for its
BART emission limit, EPA states that
they are adopted because they are ‘‘in
the range of what EPA has found
reasonable for BART in other SIP and
FIP actions.’’ 78 FR 34776. But EPA
does not identify which ‘‘actions’’ it is
talking about, EPA does not show how
the five factors considered in those
other ‘‘actions’’ make those ‘‘actions’’
comparable this action, and EPA does
not pay even minimal lip service to the
statutory requirement that emission
limits must be based upon local
considerations arrived at by a careful
weighing of statutory factors unique in
each case. EPA is just selecting a
preferred technology (SCR) because it
considers the cost of such technology to
be acceptable to impose upon Basin
Electric, without regard to whether,
when considered for its impacts locally
in Wyoming as Congress intended, it is
the ‘‘best’’ control option for all of the
circumstances fully considered. This
violates five-factor decision-making
process required by the CAA.
Response: We disagree with this
comment. Contrary to commenter’s
assertions, EPA selected the BART
emission limits by considering all five
BART factors taken together and has
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complied with CAA and RHR
requirements. As discussed in our
proposal (see for example discussion
starting at 78 FR 34774) and in our
response to comments in this action (see
sections V.B, V.C, and V.D), we clearly
consider all five factors.
6. Reasonableness Standard
Comment: EPA cannot sidestep the
CAA’s mandate for state discretion by
developing and applying a new
‘‘reasonableness’’ standard for
evaluating and rejecting that discretion.
EPA’s regional haze FIP action,
however, does just that. For example,
EPA incorrectly declared ‘‘the state’s
BART analysis and determination must
be reasonable in light of the overarching
purpose of the regional haze program.’’
(See 78 FR 34743) This overly broad and
illegal ‘‘reasonableness’’ standard allows
EPA to reject any BART determination
that EPA dislikes by merely arguing that
a state’s BART determination is
‘‘unreasonable’’ and without comparing
the state’s determination to any firm or
fixed standards. EPA’s ‘‘reasonableness’’
standard requires statutory and
regulatory limitations on EPA’s
authority to disapprove a reasoned RH
SIP. The fallacy of EPA’s improper
reasonableness standard is made even
more apparent in its application by
EPA, which simply rejects as
‘‘unreasonable’’ many of Wyoming’s
BART-related decisions without offering
sufficient justification of why that is the
case.
In creating and employing its
reasonableness standard, EPA goes to an
even greater extreme by defining
‘‘reasonable’’ in the most self-serving
manner imaginable. In short, EPA
defines ‘‘reasonable’’ to mean that EPA
agrees with the state’s exercise of
discretion, and it defines
‘‘unreasonable’’ to mean EPA does not
agree with the state. (See e.g., 78 FR
34,767, where EPA substitutes its
consideration of costs and visibility
improvement for Wyoming’s). In this
way, EPA attempts to bootstrap itself
into the role of the sole decision-maker
of what is BART and what is not. The
CAA does not countenance such
overreaching by EPA. For all of the
criticism that EPA makes concerning the
state’s analyses, the reality is that the
results of the analyses of both agencies
are very similar. In some cases, EPA’s
numbers (such as the cost of SNCR at
Wyodak) provide less of a justification
for EPA’s chosen BART controls than
Wyoming’s numbers did in its analyses.
However, EPA has used its broad and
unjustified criticisms of the State’s work
to discredit the State’s studies and
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usurp the discretion the State has
applied to its BART determinations.
We also received numerous earlier
comments pertaining to EPA’s use of a
‘‘reasonableness’’ standard for
evaluating BART determinations. For
example, commenters pointed out that
EPA incorrectly declared ‘‘the State’s
BART analysis and determination must
be reasonable in light of the overarching
purpose of the regional haze program.’’
Commenters asserted that the fallacy of
this improper reasonableness standard
is apparent in its application by EPA,
which simply rejects as ‘‘unreasonable’’
many of Wyoming’s BART-related
decisions without offering a sufficient
explanation of why that is the case.
Commenters state that EPA makes no
attempt to explain how any of
Wyoming’s BART determinations are
‘‘unreasonable,’’ but simply decrees that
they are unsupported by any
comparison to any standards,
regulations, or statutes.
Commenters argued that the
reasonableness standard employed by
EPA is not found in the CAA, the RHR,
its Preamble, or Appendix Y.
Commenters go on to point out that
nowhere does EPA define or explain
what constitutes ‘‘reasonable in light of
the overarching purpose of the regional
haze program’’, and that this standard
has not been defined or subjected to
notice and comment rulemaking.
Commenters pointed out that the CAA
does not authorize EPA to adopt and
employ ‘‘a reasonable in light of the
overarching purpose of the regional
haze program’’ criterion for approving
or disapproving a state BART
determination as CAA
Section169A(b)(2)(A) only requires the
State to consider five statutory factors.
Commenters asserted that the CAA does
not impose an additional requirement
that the final BART determination is
‘‘reasonable in light of the overarching
purpose of the regional haze program’’
as determined by EPA and as such
EPA’s imposition of this additional
criterion is therefore lacking in statutory
authority. One commenter stated that
there are no numerical minimums that
emission rates much achieve in a BART
determination and there are no statutory
minimum ‘‘visibility improvement’’
obligations.
One commenter went on to point that
the failure to define how it will
determine reasonableness leads to
inconsistent and subjective agency
action, as illustrated by EPA’s
inconsistent treatment of BART
decisions around the country. The
commenter pointed to BART decisions
in Oklahoma, North Dakota, and Nevada
as examples where EPA’s failure to
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define reasonableness has led to
inconsistent BART decisions.
Another commenter argued that
throughout its proposal, EPA claims to
have reviewed Wyoming’s SIP under a
‘‘reasonableness’’ standard. See, e.g., 78
FR 34776 (‘‘we do not consider
Wyoming’s analyses . . . to be
reasonable’’); see also id. at 34778. EPA
apparently believes that this standard
allows EPA to substitute its judgment
for the State’s whenever EPA generally
alleges that the State’s conclusions or
methods are not reasonable. Yet EPA
cites no statutory or regulatory authority
to support its malleable application of
this ‘‘reasonableness’’ standard of
review. EPA appears to have crafted its
flexible reasonableness standard from
Alaska Department of Environmental
Conservation v. EPA, 540 U.S. 461
(2004). That case stands for the
proposition that EPA has authority to
reject a state decision that ‘‘is not based
on a reasoned analysis[.]’’ Id. at 490
(internal quotation omitted). EPA has
misapplied that standard in its proposal
to disapprove Wyoming’s SIP.
The commenter further argued that
the ADEC standard does not allow EPA
to disapprove SIPs whenever, in EPA’s
opinion, some element of the SIP is not
reasonable. Instead, EPA must provide
SIPs ‘‘considerable leeway’’ and may
not ‘‘second guess’’ state decisions[.]’’
ADEC, at 490 (internal citation omitted).
Accordingly, EPA may disapprove a SIP
under ADEC only by showing that the
SIP is arbitrary. See id. at 490–91. EPA
therefore must defer to the Wyoming’s
determinations in the SIP, and may not
simply substitute its judgment for the
State’s. And, of course, EPA carries the
burdens of production and persuasion
to show that the State acted
unreasonably in light of the statutes and
administrative record. Id. at 494.
The commenter asserted that EPA has
failed to carry those burdens in its
proposed partial disapproval of
Wyoming’s regional haze SIP. The
administrative record demonstrates that
Wyoming’s SIP will achieve the
statutory goal of reasonable progress.
EPA has not shown otherwise. EPA has
shown only that if it had crafted the
implementation plan in the first
instance, it would have done so
differently than Wyoming did. But the
law does not allow EPA to simply
substitute EPA’s preferences for the
State’s. Before EPA can disapprove the
SIP, it must show that the SIP is
arbitrary, in light of the statutes and the
record, and with consideration for the
deference owed the State’s
determinations. For example, with
respect to Jim Bridger Units 1 and 2 the
only meaningful difference in outcomes
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5089
between EPA’s proposed FIP and the
SIP is a roughly five-year period in
which EPA’s proposed controls will
result in lesser emissions, though
without a perceptible visibility
improvement. Save for this distinction,
the SIP and FIP create essentially equal
improvements in visibility. EPA does
not explain why a reduction in NOX
emissions that is more expensive but
not more effective at improving
visibility is more reasonable than the
SIP. That lack of explanation renders
EPA’s proposal arbitrary, and decidedly
‘‘unreasonable.’’
Response: EPA disagrees with this
comment. The CAA requires states to
submit SIPs that contain such measures
as may be necessary to make reasonable
progress toward achieving natural
visibility conditions, including BART.
The CAA accordingly requires the states
to submit a regional haze SIP that
includes BART as one necessary
measure for achieving natural visibility
conditions. In view of the statutory
language, it is logical that the
reasonableness of the State’s BART
analysis and determination would be
evaluated in light of the purpose of the
regional haze program. In addition, our
regional haze regulations, at 40 CFR
51.308(d)(ii), provide that when a state
has established a RPG that provides for
a slower rate of improvement in
visibility than the URP (as has
Wyoming), the state must demonstrate,
based on the reasonable progress
factors—i.e., costs of compliance, time
necessary for compliance, energy and
non-air quality environmental impacts
of compliance, and remaining useful life
of affected sources—that the URP to
attain natural visibility conditions by
2064 is not reasonable and that the
progress goal adopted by the state is
reasonable. 40 CFR 51.308(d)(iii)
provides that, ‘‘in determining whether
the State’s goal for visibility
improvement provides for reasonable
progress towards natural visibility
conditions, the Administrator will
evaluate’’ the state’s demonstrations
under section 51.308(d)(ii). It is clear
that our regulations and the CAA
require that we review the
reasonableness of the State’s BART
determinations in light of the goal of
achieving natural visibility conditions.
This approach is also inherent in our
role as the administrative agency
empowered to review and approve SIPs.
Thus, we are not establishing a new
reasonableness standard, as the
commenter asserts. As we discuss
elsewhere, ADEC supports the use of
this standard, and does not require EPA
to apply a sort of ‘‘arbitrary and
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capricious’’ standard in reviewing
Wyoming’s SIP submittal. The language
regarding the burdens of production and
persuasion in ADEC are inapplicable, as
they refer to a litigation context that is
not present here.
Furthermore, this is a SIP review
action, and we believe that EPA is not
only authorized, but required to exercise
independent technical judgment in
evaluating the adequacy of the State’s
regional haze SIP, including its BART
determinations, just as EPA must
exercise such judgment in evaluating
other SIPs. In evaluating other SIPs,
EPA is constantly exercising judgment
about SIP adequacy, not just to meet and
maintain the NAAQS, but also to meet
other requirements that do not have a
numeric value. In this case, Congress
did not establish NAAQS by which to
measure visibility improvement;
instead, it established a reasonable
progress standard and required that EPA
assure that such progress be achieved.
Here, contrary to the commenter’s
assertion, we are exercising judgment
within the parameters laid out in the
CAA and our regulations. Our
interpretation of our regulations and of
the CAA, and our technical judgments,
are entitled to deference. See, e.g.,
Michigan Dep’t. of Envtl. Quality v.
Browner, 230 F.3d 181 (6th Cir. 2000);
Connecticut Fund for the Env’t., Inc. v.
EPA, 696 F.2d 169 (2nd Cir. 1982);
Voyageurs Nat’l Park Ass’n v. Norton,
381 F.3d 759 (8th Cir. 2004); Mont.
Sulphur & Chem. Co. v. United States
EPA, 2012 U.S. App. LEXIS 1056 (9th
Cir. Jan. 19, 2012).
Finally, regarding commenters’
assertions that we are being
inconsistent, because the comment is
not specific about what aspect of our
proposed disapproval is believed to be
inconsistent with other EPA decisions,
it is not possible for EPA to address in
this response any specific concerns. As
articulated in our proposed rulemaking
and further explained in our responses
to other comments, EPA’s partial
approval and partial disapproval of the
Wyoming regional haze SIP is consistent
with the CAA, the RHR, BART Rule,
and EPA guidance.
Comment: In the absence of criteria or
standards by which ‘‘reasonableness’’
may be assessed, EPA’s claim that the
State’s BART for Laramie River Station
is unreasonable is by definition a mere
subjective conclusion without basis or
foundation. EPA must instead articulate
a standard grounded in the statute by
which it evaluates and disapproves a
SIP and then must support its decision
with a plausible explanation connecting
the facts to its standard.
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Response: The CAA requires states to
submit SIPs that contain such measures
as may be necessary to make reasonable
progress toward achieving natural
visibility conditions, including BART.
The CAA accordingly requires the states
to submit a regional haze SIP that
includes BART as one necessary
measure for achieving natural visibility
conditions. In view of the statutory
language, it is reasonable for the State’s
BART analysis and determination to be
evaluated in light of the purpose of the
regional haze program.
In addition, our regional haze
regulations, at 40 CFR 51.308(d)(ii),
provide that when a state has
established a RPG that provides for a
slower rate of improvement in visibility
than the URP (as has Wyoming), the
state must demonstrate, based on the
reasonable progress factors—i.e., costs
of compliance, time necessary for
compliance, energy and non-air quality
environmental impacts of compliance,
and remaining useful life of affected
sources—that the rate of progress to
attain natural visibility conditions by
2064 is not reasonable and that the
progress goal adopted by the state is
reasonable. 40 CFR 51.308(d)(iii)
provides that, ‘‘in determining whether
the State’s goal for visibility
improvement provides for reasonable
progress towards natural visibility
conditions, the Administrator will
evaluate’’ the state’s demonstrations
under section 51.308(d)(ii). Therefore, it
is clear that our regulations and the
CAA require that we review the
reasonableness of the State’s BART
determinations in light of the goal of
achieving natural visibility conditions.
This approach is also inherent in our
role as the administrative agency
empowered to review and approve SIPs.
Thus, we are not establishing a new
reasonableness standard, as the
commenter asserts.
Here, Wyoming concluded that a limit
of 0.21lb/MMBtu for Laramie River
Station could be achieved with
operation of LNBs with OFA. As
presented in the Introduction section
and elsewhere in the notice, the State’s
regional haze SIP determined that NOX
BART for Laramie River Units 1, 2, and
3 is new LNB/SOFA. We proposed to
disapprove the State’s determination
because the State did not reasonably
assess the costs of compliance and
visibility improvement in accordance
with the BART Guidelines. 78 FR
34766. After revising the State’s costs
and modeling and re-evaluating the
statutory factors, we proposed to
determine that NOX BART is LNB/
SOFA + SCR, with an emissions limit of
0.07 lb/MMBtu for each unit. As the
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result of the comments received on our
proposal, we have further revised our
calculation of the costs of compliance
and visibility modeling. For example, as
explained in the BART section of this
document, we corrected cost estimates
for elevation and provided detailed
comments regarding how site
characteristics were addressed using
available satellite imagery and why this
is a valid approach for providing
estimates that are acceptable for BART
analysis and consistent with CAA and
regulations. While we accepted some of
the revised costs, again as explained in
the BART section of this document, we
did not accept others. For example, we
did not accept cost assumptions where
the necessary supporting documentation
was not provided. After re-evaluating
the BART factors, we continue to find
that LNB/SOFA + SCR is reasonable as
BART and are therefore finalizing our
proposal. As a result, we are finalizing
our proposed disapproval of the State’s
NOX BART determination for Laramie
River Station and finalizing our
proposed FIP that includes a NOX BART
determination of LNB/SOFA + SCR,
with an emission limit of 0.07 lb/
MMBtu (30-day rolling average). The
facts presented here and elsewhere in
our final notice, provided a basis and
foundation, grounded on the CAA and
regulations, for the EPA to reach its
decision regarding the unreasonableness
of Wyoming’s BART for Laramie River
Station.
Comment: EPA attempted to use posthoc, immaterial changes that it
calculated in costs and visibility
improvements to justify usurping
Wyoming’s BART decision-making
authority. This runs counter to the vast
discretion EPA has given to other states’
regional haze SIPs. In Oregon, for
example, despite EPA and Oregon
differing in how each calculated BART
costs that resulted in cost variance of
over $700 per ton, EPA stated that such
difference between the two estimates
would not materially affect Oregon’s
evaluation. The difference between the
cost analyses under EPA’s FIP action
and the Wyoming regional haze SIP
similarly is immaterial. Similarly, in
Colorado, the State’s plan included a
cost analysis that, according to EPA,
was not conducted in accordance with
EPA’s Control Cost Manual. In addition,
EPA explained that Colorado should
have more thoroughly considered the
visibility impacts of controlling
emissions from one BART unit on the
various impacted Class I areas and not
focused on just the most impacted Class
I area. Nevertheless, EPA approved the
State’s SIP, explaining that ‘‘Colorado’s
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plan achieves a reasonable result
overall.’’ EPA should afford Wyoming
the same degree of deference it afforded
Colorado and Oregon. As demonstrated
by the impacts of the Wyoming SIP, it
‘‘achieves a reasonable result overall.’’
EPA’s inconsistency is not just
limited to its disparate actions between
states. In Wyoming, EPA acted
inconsistently in its BART
determinations between sources within
the state. For example, EPA accepted
Wyoming’s cost and visibility BART
analyses for FMC Westvaco and General
Chemical, along with the PM BART
analyses for PacifiCorp’s and Basin
Electric’s BART units. At the same time,
EPA rejected the NOX BART cost and
visibility analyses for PacifiCorp’s and
Basin Electric’s BART units. Wyoming,
however, used the same BART analysis
methodology for those BART units at
which EPA accepted the Wyoming
BART analysis as it did at those BART
units for which EPA did not. By
rejecting some cost and visibility
analyses on the basis that they were
improperly performed, while accepting
others that were performed in the same
manner, EPA acted arbitrarily and
capriciously.
Response: We disagree with this
comment. In evaluating a State’s BART
determination, EPA has the discretion to
develop additional information, such as
cost and visibility analyses. In the end,
this additional information, may
confirm the State’s BART determination
as reasonable, or it may lead EPA to
disapprove the State’s BART
determination as unreasonable.
However, EPA is not required to
develop additional information for all
BART determinations in order to review
the State’s BART determination. If a
State’s BART determination appears to
have reached a reasonable conclusion,
taking into account existing information
and the potential magnitude or effect of
technical flaws in cost or visibility
analyses, EPA may approve the BART
determination. However, if the potential
technical flaws in analyses make it
possible that the State’s BART
determination would be unreasonable,
then EPA may develop additional
information to try to determine whether
the State’s BART determination would
fall within the range of reasonable
outcomes using proper technical
analyses. For example, as we explain
elsewhere in responding to comments
on modeling, in this action EPA was
unable to ascertain the visibility benefits
of individual NOX controls for the
PacifiCorp units from the State’s
modeling because the emission
reductions for multiple pollutants were
modeled together, and therefore we
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were unable to assess the
reasonableness of the State’s BART
determinations.65 Similarly, for the
Basin Electric units, we were unable to
ascertain the visibility benefits of SNCR.
For that reason, we developed
additional modeling. In some cases, the
additional modeling confirmed the
reasonableness of the State’s decisions
while in others it did not.
With respect to the State’s PM BART
determinations, the dollar per ton costs
for higher-than-current levels of control
were generally high (regardless of
potential flaws in determining those
costs), so existing information was
adequate to find that the PM BART
determinations were reasonable. With
respect to FMC Westvaco and General
Chemical, the State’s modeling (which
as we discuss elsewhere used a
conservative estimate of background
ammonia which would tend to result in
an overestimation of visibility impacts)
showed fairly low visibility benefits
from NOX controls. Based on
consideration of the five BART factors,
the State selected combustion controls
for these BART sources. EPA also finds
these determinations reasonable, and
EPA has no reason (nor does the
commenter provide one) to think
otherwise.
With respect to the comments
regarding Oregon and Colorado,
although consistency with similar
determinations is one hallmark of
reasonableness, the BART
determinations are very fact-specific
and cannot be easily compared across
states. For example, in the Oregon
action, EPA noted that (among other
things) the source would shutdown in
2020, so ‘‘it [was] reasonable for the
state to consider the sizable capital cost
difference between [two technologies],
and the relatively small incremental
visibility improvement between the two
technologies.’’ 76 FR 38900. Thus, EPA
could assess on the basis of existing
information that the State’s BART
determination was reasonable. With
respect to the Colorado SIP, we disagree
with the commenter that the Wyoming
and Colorado SIPs would achieve
comparable visibility improvement.
65 As we explain later in this document ‘‘[t]hat is,
since the visibility improvement for each of the
State’s control scenarios was due to the combined
emission reductions associated with SO2, NOX, and
PM controls, it was not possible to isolate what
portion of the improvement was attributable to the
NOX controls alone. For this reason, in the
modeling conducted by EPA, we held SO2 and PM
emission rates constant (reflecting the ‘‘committed
controls’’ for those pollutants identified by
Wyoming), and varied only the NOX emission rate.
This allowed us to isolate the degree of visibility
improvement attributable to the NOX control
option.’’ See response to comments in the modeling
section for further information.
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With respect to consistency generally,
in this action we have considered the
five factors in the context of each
facility. Although one factor (such as
visibility improvement or costs of
compliance) may be similar for a unit in
another state, each factor must be
weighed in the context of the other
source-specific BART factors.
Comment: Section 169A(g)(2) of the
CAA requires states, in determining
BART, to ‘‘take into consideration the
costs of compliance, the energy and
non-air quality environmental impacts
of compliance, any existing air pollution
control technology in use at the source,
the remaining useful life of the source,
and the degree of visibility
improvement which may reasonably be
anticipated to result from the use of
such technology.’’ 42 U.S.C. 7491(g)(2).
The CAA does not require the
achievement of any specific degree of
visibility improvement, and only
requires that a BART determination
eliminate or reduce impairment to
visibility. See id. Section 7491. If the
state’s determination does so, the state
has complied with the statute and
nothing authorizes EPA to propose or
impose its own BART decision.
EPA’s proposed action, however,
articulates a number of additional
grounds that must be met for a SIP to
be ‘‘approvable.’’ These additional
grounds are not found in the text of the
CAA and have never been defined or
promulgated with notice and comment
rulemaking. For example, EPA’s
proposed action articulates a two
pronged test for BART SIP approval:
First, ‘‘a state must meet the
requirements of the CAA and our
regulations for selection of BART’’; and
then second, ‘‘the state’s BART analysis
and determination must be reasonable
in light of the overarching purpose of
the regional haze program.’’ 78 FR
34743.
Basin Electric has no problem with
the first prong of this test, i.e., that a
state’s SIP must ‘‘meet the requirements
of the CAA’’ and ‘‘any [applicable]
regulations’’—so long as those
regulations are confined to the areas
Congress allowed EPA to regulate.
However, the second prong, i.e., that
‘‘the State’s BART analysis and
determination must be reasonable in
light of the overarching purpose of the
regional haze program,’’ sets out a new
‘‘reasonableness’’ obligation that is
neither defined in nor separately set
forth in the Act. Essentially, EPA is
proposing to measure a BART
determination not just against the
statutory criteria but also against EPA’s
own subjective view whether the result
reached is reasonable enough to meet
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the ‘‘overarching goal’’ of the Act. But
since EPA acknowledges that neither
the Act nor the regulations ‘‘mandate
specific milestones or rates of progress,’’
76 FR 58577, EPA’s subjective
reasonable enough requirement imposes
a new legislative standard that either
goes beyond or, for the first time,
purports to define ‘‘the requirements of
the Act.’’ This empowers EPA to
disapprove a state BART determination
and replace it with its own on
reasonableness grounds that have never
been defined or vetted through public
notice and comment.
The same is true with EPA’s assertion
that Wyoming did not provide
‘‘sufficient documentation.’’ 78 FR
34749. EPA is asserting the existence of,
and then a failure to meet, a ‘‘sufficient
documentation’’ requirement that is
both undefined and entirely of EPA’s
own creation. This allows EPA to
extend its regulatory reach to determine
and impose its own view of BART when
a state’s reasoning, according to EPA,
fails to meet unannounced and
undefined legislative criteria. Such an
expansion of EPA’s substantive powers
is illegal. EPA may not employ
evaluative criteria that effectively
extend or define the reach of the CAA
without first subjecting those criteria to
public notice and comment. See, e.g.,
Syncor Int’l Corp. v. Shalala, 127 F.3d
90, 95–96 (D.C. Cir. 1997) (requiring the
FDA to subject a rule that extended its
regulatory reach to notice and comment
before applying it); U.S. Tel. Ass’n v.
FCC, 28 F.3d 1232, 1233–34 (D.C. Cir.
1994) (finding that the FCC’s
application of a new standard was a
substantive rule requiring notice and
comment); Am. Mining Congress v.
Mine Safety & Health Admin., 995 F.2d
1106, 1112 (D.C. Cir. 1993) (outlining
the factors to apply in determining
when a rule is substantive and thus
requires notice and comment).
As the D.C. Circuit Court has
explained, when an agency implements
a substantive change to its regulations
that alters the boundaries of what the
agency can regulate, the change must be
subject to public notice and comment so
that an agency does not expand its
power without public involvement.
Appalachian Power Co. v. EPA, 208
F.3d 1015, 1024 (D.C. Cir. 2000). The
same is true when EPA purports, for the
first time, to vet a state SIP revision
against criteria of its own making not set
forth in the governing statute or the
existing regulations. Here, EPA is
effectively stating that: (1) The most
cost-effective (on a dollar per ton basis)
control technology must be selected as
BART; (2) a state BART determination
must be ‘‘adequately justified,’’
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‘‘sufficiently documented,’’ and
‘‘properly made’’; and (3) the state’s
determination must meet EPA’s
subjective view of ‘‘reasonableness’’ in
reaching the non-binding goal of the
regional haze Program. Each of these
new criteria is outcome determinative,
according to EPA, and each must be met
for the State to be considered in
compliance with Section 169A. As such,
these are new legislative rules that
cannot be adopted and imposed without
first being submitted to notice and
comment rulemaking as required by
CAA Section 307(d), 4207 U.S.C. 7607.
An important indicator of when
public notice is required is that the
change would allow the agency to
extend its own power: ‘‘[A] substantive
rule modifies or adds to a legal norm
based on the agency’s own authority
. . . And, it is because the agency is
engaged in lawmaking that the APA
requires it to comply with notice and
comment.’’ Syncor, 127 F.3d at 95
(emphasis in original). EPA’s current
proposal to disapprove Wyoming’s
BART determination does exactly that.
EPA uses its own authority to modify
the legal norm for reviewing State BART
decisions to give itself the ultimate
authority to impose its own favored
BART standards.
The need for advance rulemaking is
particularly acute when EPA interprets
and applies a statute that itself
establishes no concrete, objective
requirements. No specific rates of
progress, technologies, or visibility
improvements are mandated by the
RHR. Unlike review of a SIP, where EPA
applies specifically defined ambient
concentrations to determine if the SIP
should be approved, there are no
objective criteria against which to
measure the ‘‘reasonableness’’ of any
state BART determination with respect
to cost and visibility judgments.
Under EPA’s self-defined standards,
EPA is left with unfettered discretion to
disapprove any decision with which it
disagrees on the grounds that it is not
‘‘reasonable’’ enough to meet EPA’s
preferences. This is why the law
requires EPA to first define and
promulgate rules explaining what is
‘‘reasonable’’ enough, or what is
‘‘sufficiently documented’’ enough, to
support a BART determination.
Otherwise, EPA can trump state
discretion on the basis of internally
conceived and unexamined evaluative
criteria that extend EPA’s reach without
public involvement.
Response: EPA disagrees with this
comment. First, even assuming that
EPA’s proposed action on the Wyoming
regional haze SIP articulated new
grounds for evaluating a regional haze
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SIP, the proposed action provides the
public with the opportunity to
comment. As evidenced by the
commenter’s submission, the
commenter had the opportunity to
comment on EPA’s approach to
evaluating the Wyoming regional haze
SIP and to identify any concerns
associated with the statement at issue
from our proposal and other aspects of
our action.
Second, the CAA requires states to
submit SIPs that contain such measures
as may be necessary to make reasonable
progress toward achieving natural
visibility conditions, including BART.
The CAA accordingly requires the states
to submit a regional haze SIP that
includes BART as one necessary
measure for achieving natural visibility
conditions. In view of the statutory
language, it is reasonable that the State’s
BART analysis and determination
would be evaluated in light of the
purpose of the regional haze program. In
addition, our regional haze regulations,
at 40 CFR 51.308(d)(ii), provide that
when a state has established a RPG that
provides for a slower rate of
improvement in visibility than the URP
(as has Wyoming), the state must
demonstrate, based on the reasonable
progress factors—i.e., costs of
compliance, time necessary for
compliance, energy and non-air quality
environmental impacts of compliance,
and remaining useful life of affected
sources—that the rate of progress to
attain natural visibility conditions by
2064 is not reasonable and that the
progress goal adopted by the state is
reasonable. 40 CFR 51.308(d)(iii)
provides that, ‘‘in determining whether
the State’s goal for visibility
improvement provides for reasonable
progress towards natural visibility
conditions, the Administrator will
evaluate’’ the state’s demonstrations
under section 51.308(d)(ii). It is clear
that our regulations and the CAA
require that we review the
reasonableness of the State’s BART
determinations in light of the goal of
achieving natural visibility conditions.
This approach is also inherent in our
role as the administrative agency
empowered to review and approve SIPs.
Thus, we are not establishing a new
reasonableness standard, as the
commenter asserts.
As explained above, our proposal
clearly laid out the bases for our
proposed disapproval of the State’s
BART and reasonable progress
determinations, and we have relied on
the standards contained in our regional
haze regulations and the authority that
Congress granted us to review and
determine whether SIPs comply with
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the minimum statutory and regulatory
requirements. In determining SIP
adequacy, we inevitably exercise our
judgment and expertise regarding
technical issues, and it is entirely
appropriate that we do so. Courts have
recognized this necessity and deferred
to our exercise of discretion when
reviewing SIPs.
Finally, we disagree with the
argument that we must approve a BART
determination where the SIP reflects
consideration of the five factors and the
BART selection will result in some
improvement in visibility. We think
Congress expected more when it
required the application of ‘‘best
available retrofit technology.’’
Comment: In 2004, EPA represented
to the United States Supreme Court that
it would act only very rarely to overrule
a state decision selecting control
technology for specific sources. ADEC.
Relying upon this representation to
rebut doubts expressed by the dissent,
the Supreme Court affirmed EPA’s
decision to overrule a BACT decision
made by the State of Alaska on the
grounds that the State’s decision was
not ‘‘reasonable’’ because the record
lacked the information necessary to
support the State’s cost assessment. The
ADEC Court held that EPA could review
state BACT determinations to ascertain
whether they were ‘‘reasonable in light
of the statutory guides and the state
administrative record.’’ Id. at 494.
EPA now relies upon the Supreme
Court’s use of the word ‘‘reasonable’’ in
the BACT context to assume authority to
judge the ‘‘reasonableness’’ of state
BART decisions when reviewing SIP
revisions under Section 110, and thus to
disapprove any BART determination it
considers ‘‘unreasonable’’ ‘‘in light of
the over-arching purpose of the regional
haze program.’’ 78 FR 34743. This
formulation seriously misconstrues and
misstates the Supreme Court’s holding
and runs counter to the CAA’s conferral
of authority on the State in selecting
BART. ‘‘Reasonableness in EPA’s
subjective view’’ cannot be applied as a
rubric for approving state BART
decisions, as it allows EPA to impose its
own BART preferences. Rather than
adhere to the core principles of
cooperative federalism codified in the
RHR by only rarely overruling state
technology choices, EPA instead does
exactly what it represented to the
Supreme Court it would not do—
routinely overrule state
determinations—and it does so under
the rubric of authority to evaluate
‘‘reasonableness’’ on a subjective basis.
Examination of EPA’s action in this
and related BART proceedings around
the country demonstrates that EPA is
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not using the ‘‘reasonableness’’ standard
that was actually approved in ADEC. Far
from endorsing a generic
‘‘reasonableness in EPA’s view’’
standard, the ADEC Court echoed the
language of APA arbitrary and
capricious review and upheld EPA’s
rejection of a State BACT determination
on grounds that the State’s
determination was not supported by the
administrative record. The Court stated
that ‘‘[o]nly when a state agency’s BACT
determination is ‘not based on a
reasoned analysis’ may EPA step in to
ensure that the statutory requirements
are honored,’’ and that the Act
‘‘authorizes EPA to act in the unusual
case in which a state permitting
authority has determined BACT
arbitrarily.’’ 540 U.S. at 490–91; citation
omitted). The Court added that ‘‘EPA
adhered to that limited role here,
explaining why ADEC’s BACT
determination was ‘arbitrary’ and
contrary to [the State]’s own findings.’’
Id. The Court thus held that EPA had
properly exercised its authority to reject
the State’s BACT determination when
the State switched from an initial
finding that a certain technology was
economically feasible to finding that the
same technology was economically
infeasible with ‘‘no factual basis in the
record’’ to support the change. Id. at
496–500.
Here, EPA makes no effort to
formulate and apply a ‘‘reasonableness’’
standard that appropriately preserves
for EPA only the ‘‘limited role’’ of
insuring that a state decision is not
arbitrary and capricious and lacking in
record support. Instead, EPA scours the
record for inconsequential actions taken
by states which it can portray as
‘‘inconsistent with’’ the massively
complex, out-dated, and non-binding
CCM or with the largely advisory
Guidelines so that EPA can declare the
state’s decision to be ‘‘unreasonable’’
and take over the choice of BART
technology. EPA does not demonstrate
any arbitrary or capricious conduct, any
lack of reasoned decision making, or
any other documented failure by the
State to follow the requirements of the
statute, as contemplated by the standard
actually approved in ADEC. As a result,
EPA is not employing the
‘‘reasonableness’’ test properly, and
with that error is arrogating power
Congress left to the States, precisely as
predicted by the ADEC dissent. In state
after state, EPA is now striking down
state BART decisions and cloaking its
disregard for state primacy by adjudging
those decisions as ‘‘unreasonable,’’
purportedly in reliance upon authority
granted by ADEC. But it strains
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credulity for EPA to assert that state
after state is making essentially the same
repeated arbitrary and capricious
decisions, the remedy for which is
almost always mandatory imposition by
EPA of its preferred technology choice:
SCR. EPA’s ‘‘reasonableness’’ test is
therefore fundamentally erroneous. EPA
may not exercise authority ‘‘in a manner
that is inconsistent with the
administrative structure that Congress
enacted into law,’’ ETSI Pipeline
Project, 484 U.S. at 517, by applying a
subjective reasonableness standard to
federalize BART decisions.
Response: We responded to similar
comments elsewhere in this document.
Comment: Because EPA’s proposed
disapproval of Wyoming’s BART
determination for Laramie River Station
is inconsistent with EPA’s prior
approval of other state BART choices,
EPA’s proposed decision is an abuse of
discretion and not entitled to deference
from a reviewing court.
For instance, in a CAA case involving
EPA approval of state Title V programs,
the Ninth Circuit reversed EPA’s
disapproval of one state’s program
where EPA’s decision ‘‘conflict[ed]
substantially with numerous EPA
decisions in other states and localities.’’
W. States Petroleum, 87 F.3d at 282. In
that case, EPA had conditioned final
approval of Washington’s proposed
Title V program on the State’s repeal of
certain insignificant emissions units
(‘‘IEU’’) exemptions. EPA eventually
approved the State’s Title V program,
but disapproved the IEUs exemptions as
inconsistent with the applicable
regulations. Id. at 283. Industry
members and the State challenged
EPA’s disapproval on the basis that
EPA’s decision was inconsistent with its
prior interpretation and application of
the regulations in other states. Id. at
282–83. Specifically, EPA had
condoned the exemption of IEUs from
the permit content requirements of the
regulations in at least eight other state
and local programs. Id. at 283. Based on
this evidence, the Ninth Circuit held
that EPA’s rejection of Washington’s
IEU rules was ‘‘undeniably a change in
agency interpretation.’’ Id. at 284.
Accordingly, EPA was required to
support its change by ‘‘reasoned
analysis,’’ which it did not do. Id. (EPA
‘‘may not depart, sub silentio, from its
usual rules of decision to reach a
different, unexplained result in a single
case’’). The court held that EPA abuses
its discretion where it approves
numerous state programs that include
the very same aspects forming the basis
for EPA’s denial of another state’s
program. Id. at 285.
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Other courts have similarly expressed
that an agency acts arbitrarily and
capriciously when it departs from prior
interpretations or precedent without
adequately explaining the reasons for its
departure. See, e.g., Cnty. of Los Angeles
v. Shalala, 192 F.3d 1005, 1022 (D.C.
Cir. 1999) (‘‘A long line of precedent has
established that an agency action is
arbitrary when the agency offer[s]
insufficient reasons for treating similar
situations differently.’’); Shaw’s
Supermarkets, Inc. v. N.L.R.B., 884 F.2d
34, 41 (1st Cir. 1989) (‘‘Unless an agency
either follows or consciously changes
the rules developed in its precedent,
those subject to the agency’s authority
cannot use its precedent as a guide for
their conduct; nor will that precedent
check arbitrary agency action.’’); Puerto
Rican Cement Co. v. EPA, 889 F.2d 292,
298 (1st Cir. 1989) (noting ‘‘the wellestablished legal doctrine that an agency
‘must either follow its own precedents
or explain why it departs from them’ ’’)
(citation omitted); Int’l Internship
Programs v. Napolitano, 853 F. Supp.2d
86, 94 (D.D.C. 2012) (‘‘[I]f an agency
adopts ‘a new position inconsistent
with’ an existing regulation, or effects ‘a
substantive change in the regulation,’
the agency must comply with the notice
and comment requirements of the
APA.’’) (citation omitted). Moreover,
consistency is a factor to be weighed in
determining how much deference an
agency’s interpretation is entitled to
receive. Good Samaritan Hosp. v.
Shalala, 508 U.S. 402, 417 (1993)
(‘‘[T]he consistency of an agency’s
position is a factor in assessing the
weight that position is due.’’). When an
‘‘Agency’s regulations reflect the
Agency’s own longstanding
interpretation,’’ a court ‘‘will normally
accord particular deference’’ to such
‘‘interpretation of ‘longstanding’
duration.’’ Barnhart v. Walton, 535 U.S.
212, 219–20 (2002). But ‘‘the case for
judicial deference is less compelling
with respect to agency positions that are
inconsistent with previously held
views.’’ Pauley, 501 U.S. at 698. ‘‘An
agency interpretation of a relevant
provision which conflicts with the
agency’s earlier interpretation is
‘entitled to considerably less deference’
than a consistently held agency view.’’
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,
446 n.30 (1987). See also Watt v.
Alaska, 451 U.S. 259, 273 (1981) (‘‘The
Department [of Interior]’s current
interpretation, being in conflict with its
initial position, is entitled to
considerably less deference.’’); W. States
Petroleum, 87 F.3d at 285 (the court
‘‘need not defer to the EPA because the
EPA has abused its discretion in
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departing from its own prior
standards’’).
Here, EPA has taken an inconsistent
approach in interpreting the RHR, the
Guidelines, and the CCM. In particular,
EPA’s current interpretation of its role
and the states’ role under these
provisions conflicts with its prior, longheld understanding that states serve the
primary role in determining BART and
that EPA should not interfere with the
many judgments that go into making
BART determinations.
More specifically, EPA’s application
of its improper and subjective
‘‘reasonableness’’ standard when
reviewing BART determinations in the
SIP approval process has yielded
inconsistent, and therefore arbitrary and
capricious, results. Here, EPA identifies
what it describes as ‘‘cost and visibility
errors for EGUs’’ in Wyoming’s SIP
sufficient to permit EPA to disapprove
the BART determination for Laramie
River, yet EPA proceeds to approve
other Wyoming BART decisions as
‘‘reasonable’’ ‘‘despite the[se] . . .
errors.’’ 78 FR 34750. Either EPA is
applying the law arbitrarily and
capriciously, or it is simply approving
as ‘‘reasonable’’ only those choices with
which it agrees, either of which is
erroneous. EPA must be reasonably
consistent in reviewing state BART
determinations.
Response: We responded to similar
comments above.
Comment: EPA’s implementation of
the RHR does not satisfy the CAA’s
requirements of consistency. The
conclusions reached by EPA on similar
issues vary from case to case in ways
that cannot be explained by statute,
regulation, or guiding principle. EPA
seems to act on BART determinations
with an eye towards achieving its
desired outcome rather than
implementing the CAA even-handedly.
This is the definition of caprice. States,
regulated entities, and the public are left
guessing as to what will be required in
any given case. Because EPA has been
so inconsistent in the current case and
in its overall administration of the RHR,
its proposal to disapprove Wyoming’s
BART determinations for Laramie River
and to impose a FIP is arbitrary and
capricious and must be abandoned.
Response: We responded to similar
comments above.
7. Reliance on Emission Reductions
Comment: EPA’s regional haze FIP
action is also illegal, arbitrary, and
capricious because it relies upon factors
outside of the BART five-factor analysis.
Nowhere in the five-factor analysis, or
anywhere in the Appendix Y
Guidelines, is there any support for EPA
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using an ‘‘emissions reduction’’ factor.
But this is exactly what EPA has done
in its FIP. For example, EPA cited
‘‘emission reductions’’ as the basis for
the FIP BART NOX decisions for Dave
Johnston Unit 3 (See 77 FR 33052),
Wyodak (See 77 FR 33055) and Laramie
River (See 77 FR 33001), among others.
In doing so, however, EPA failed to
account for the fact that the regional
haze program is not an emissions
reduction program per se, but is a
visibility improvement program.
Additionally, it is improper for EPA
to reject Wyoming’s BART
determinations, which relied upon the
proper balancing of all five BART
factors, and replace those BART
determinations with EPA’s analysis,
which relied upon factors outside the
five-factor analysis, such as emissions
reductions. (See e.g., 77 FR at 33,052.)
Courts have held that when an agency
relies on factors ‘‘which Congress has
not intended it to consider,’’ then such
action is arbitrary and capricious.
Arizona Public Service Co. v. US EPA,
562 F.3d 1116, 1123 (10th Cir. 2009).
Earlier comments asserted that EPA’s
regional haze FIP is also illegal,
arbitrary, and capricious because it
relies upon factors outside of the BART
five-factor analysis. Nowhere in the fivefactor analysis, or anywhere in
Appendix Y, is there any support for
EPA using an ‘‘emissions reduction’’
factor. But this is exactly what EPA has
done. For example, EPA cites ‘‘emission
reductions’’ as the basis for the regional
haze FIP BART NOX decisions for Dave
Johnston Unit 3, Wyodak, and Laramie
River Station, among others. In doing so,
however, EPA fails to account for the
fact that the regional haze program is
not an emissions reduction program per
se, but is a visibility improvement
program.
EPA’s over-reliance on ‘‘emissions
reductions’’ outside of the mandated
BART factors has caused EPA to
overstep the boundaries of the regional
haze program. This is evidenced by the
virtually non-existent visibility
improvements associated with SNCR at
Wyodak and Dave Johnston that EPA
approved because of the associated
emission reductions. Additionally, it is
improper for EPA to reject Wyoming’s
BART determinations, which relied
upon the proper balancing of all five
BART factors, and replace those BART
determinations with EPA’s analysis,
which relied upon factors outside the
five-factor analysis. Courts have held
that when an agency relies on factors
‘‘which Congress has not intended it to
consider,’’ then such action is arbitrary
and capricious. Arizona Public Service
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Co. v. US EPA, 562 F.3d 1116, 1123
(10th Cir. 2009).
Response: We disagree with the
commenter’s characterization of the role
of emission reductions in the BART
analyses. The RHR provides that:
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The determination of BART must be based
on an analysis of the best system of
continuous emission control technology
available and associated emission reductions
achievable for each BART-eligible source that
is subject to BART * * * 66
Thus, the BART Guidelines clearly
contemplate the assessment of emission
reductions.
Emission reductions are a
consideration in calculating both
average and incremental cost
effectiveness in order to evaluate the
cost of compliance (one of the five
factors). 70 FR 39167 and 39168.
Contrary to the commenters’ assertions,
however, our disapproval of Wyoming’s
DEQ’s BART analyses is not ‘‘based’’ on
emission reductions, rather the analyses
was based on the best system of
continuous emission control technology
and associated emission reductions
achievable, as used in developing the
BART factor information. For example,
as discussed elsewhere in this section
and final notice, contrary to the
Guidelines’ admonition that ‘‘cost
estimates should be based on the CCM,
where possible,’’ the control cost
calculations supplied by the utilities
and relied upon by Wyoming included
costs not allowed by the CCM, such as
owner’s costs and Allowance for Funds
Utilized During Construction (AFUDC).
Thus, Wyoming’s consideration of the
‘‘cost of compliance’’ for these units was
not consistent with the Guidelines.
Furthermore, as explained elsewhere in
this document, Wyoming’s
consideration of visibility benefits was
inconsistent with the Guidelines
because the State did not provide
visibility modeling from which the
visibility improvement from individual
controls could be ascertained. EPA’s
analyses comports with the CAA and
RHR requirements; therefore, we did not
consider factors outside the Agency’s
authority.
In regard to EPA’s disapproval of
Wyoming’s BART decisions on five
units, EPA’s decision was based on a
careful weighing of the five factors,
including cost of compliance (average
and incremental) and visibility
improvement. Just because EPA points
out the emission reductions does not
mean that it has cited ‘‘emission
reductions’’ as the only basis for the
regional haze FIP BART NOX decisions
for these units.
66 40
CFR 51.308(e)(1)(ii)(A).
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8. Presumptive Limits
Comment: EPA’s regional haze FIP is
improper because it requires postcombustion NOX controls as BART,
when EPA guidelines make clear that
only combustion controls for NOX are
contemplated. (See e.g. 77 FR at 33,053.)
EPA’s Preamble and other guidance
confirm that the combustion controls of
LNBs and OFA (in some form) are
‘‘BART technology’’ for the BART units.
In the Preamble and the RHR, EPA
stated that, except for cyclone boilers,
the ‘‘types of current combustion
control technology options assumed
include low NOX burners, over-fire air,
and coal reburning.’’ 70 FR 39134; see
also 39,144 (‘‘For all other coal-fired
units, our analysis assumed these units
will install current combustion control
technology.’’) (emphasis added). In fact,
in the Technical Support Document
used to develop the presumptive BART
NOX emissions limits, EPA explained
that the ‘‘methodology EPA used in
applying current combustion control
technology to BART-eligible EGUs’’
included applying ‘‘a complete set of
combustion controls. A complete set of
combustion controls for most units
includes a low NOX burner and over-fire
air.’’ (‘‘Technical Support Document,
Methodology for Developing NOX
Presumptive Limits,’’ EPA Clean Air
Markets Division, pg. 1 (dated June 15,
2005)).
EPA’s Preamble and Appendix Y
identify post-combustion controls for
NOX, such as SCR and SNCR, as ‘‘BART
technology’’ for only ‘‘cyclone’’ units.
EPA made it clear that for ‘‘other units,
we are not establishing presumptive
limits based on the installation of SCR.’’
70 FR 39136. Therefore, EPA’s
presumptive ‘‘BART technology’’ is
LNBs and some type of OFA. EPA
further elaborated in the Preamble on
SCR costs, stating that although ‘‘States
may in specific cases find that the use
of SCR is appropriate, we have not
determined that SCR is generally costeffective for BART across unit types.’’
Id.; see also 40 CFR Part 51, Appendix
Y, Section IV.E.5.67 Because EPA
67 Commenters also suggest that, EPA has
methodically changed or selectively ignored the
requirements from those which were established in
40 CFR Part 51 and Appendix Y, which were
published in 2005. The states’ SIPs, written shortly
after that period, were based on the rules and
guidance provided at that time. Since then,
however, EPA has arbitrarily and continually
changed its interpretation of the regional haze
regulations in order to achieve emission reductions
and other objectives well beyond those allowed by
the regional haze program. Here are a few examples
of how EPA’s position has changed over the past
few years with respect to the guidance given for
determining NOX BART controls.
Appendix Y provides a presumptive BART NOX
rate differentiated by boiler design and type of coal
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5095
improperly requires post-combustion
controls in its regional haze FIP, EPA
should withdraw this requirement and
approve the Wyoming SIP. If EPA
desires to impose post-combustion
controls as BART NOX, it must first
amend Appendix Y through a proper
rulemaking procedure.
Commenters further assert that, when
EPA issued the RHR, it established
presumptive NOX BART limits for
power plants based on EPA’s
conclusions about the cost effectiveness
of certain emissions control
technologies, including SCR and
combustion controls. 70 FR at 39131,
39134–39136. These limits are based on
EPA’s acknowledgment that NOX
controls vary considerably and only in
‘‘relatively rare cases’’ would SCR be
appropriate. 69 FR 25184, 25202 (May 5,
2004). EPA’s own pronouncement on
the cost effectiveness of SCR belie its
finding that SCR is cost effective at
Laramie River Station.
The presumptive limits for NOX are
differentiated by boiler design and type
of coal because NOX control
technologies are not ‘‘one size fits all’’
and cost effectiveness is variable. Id. at
39134. As EPA noted in proposing
presumptive NOX BART limits, ‘‘the
removal efficiencies and costs
associated’’ with NOX controls ‘‘vary
considerably, depending upon the
design and operating parameters of the
particular boiler being analyzed.’’ 69 FR
at 25202. For that reason, EPA proposed
(and ultimately finalized) presumptive
NOX BART limits that would not
require post-combustion controls:
‘‘States should require the lowest
emission rate that can be achieved
without the installation of postcombustion controls’’ because they are
‘‘applicable to most EGUs, are relatively
inexpensive, and are already widely
burned. EPA now requires post-combustion
controls significantly more aggressive than the
presumptive rates prescribed in Appendix Y.
Appendix Y makes distinctions for unit size, with
more aggressive controls targeted at the largest
units. In Wyoming, EPA now proposes to require
SCR on units as small as 160 megawatts. The
preamble to the regional haze rules suggests that 75
percent of the electric generating units would have
BART NOX controls cost between $100 and $1,000
per ton. EPA is now imposing costs, based on its
own calculations, of $3,700 to $6,000 per ton on
100 percent of PacifiCorp’s Wyoming BART-eligible
units.
SCR controls were only expected to be costeffective controls for cyclone units with high NOX
emission rates. EPA is now proposing postcombustion NOX controls on every BART-eligible
unit in Wyoming, including the installation of
eleven SCRs. EPA must stop changing its
interpretations of the regional haze rules and
guidelines that were formalized in 2005 and move
ahead with approving the Wyoming BART analysis
and the regional haze SIP which complies with
those rules and guidelines.
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applied.’’ Id. Indeed, EPA ‘‘recognize[d]
that a small number of the largest power
plants may need to install an SCR unit
to meet this control level. In such
relatively rare cases, a State, at its
discretion, may find SCR to be
appropriate if the source causes
visibility impacts sufficiently large to
warrant the additional capital cost.’’ Id.
(emphasis added).
EPA’s presumptive BART
determinations for coal-fired EGUs of
various boiler configurations
demonstrate that emissions control
devices with an average cost
effectiveness greater than $1,350 per ton
are not cost effective. Sargent & Lundy
analyzed the presumptive BART limits
in EPA’s ‘‘Technical Support Document
for BART NOX Limits for Electric
Generating Units Excel Spreadsheet’’
and EPA’s ‘‘Technical Support
Document—Methodology for
Developing BART NOX Presumptive
Limits,’’ and compiled EPA’s cost
effectiveness thresholds for each boiler
design and coal type. Sargent & Lundy,
‘‘BART Cost Effectiveness Thresholds’’
(Jan. 6, 2010). Exhibit 17 to commenter
0148. The report was prepared to
supplement North Dakota’s BART
determination for Basin Electric’s
Leland Olds Station Units 1 and 2, but
is equally applicable to any BART
determination for coal-fired utility
boilers, including Laramie River Station.
Sargent & Lundy concludes that based
on EPA’s own assumptions about
acceptable cost effective levels, ‘‘a
threshold of $1,350/ton should be used
to establish the cost-effectiveness of
NOX retrofit control technologies.’’ Id. at
12.
Sargent & Lundy’s report
demonstrates that EPA consistently
found control technologies to be cost
effective if the cost of NOX removal was
less than $1,350/ton, and not to be cost
effective if the cost of NOX removal was
greater than $1,350/ton. Id. at Figure 3
and accompanying text. For example,
for all boiler categories other than
cyclone units, SCR had an overall
average cost effectiveness of $1,749/ton
NOX removed and was considered not
to be cost effective. Id. at 11.
Combustion controls at non-cyclone
boilers had an overall average cost
effectiveness of $535/ton NOX removed
and were found to be cost effective. Id.
SCR is not cost effective at Laramie
River Station because it greatly exceeds
the $1,350/ton threshold used by EPA in
its presumptive BART determinations.
EPA’s own flawed cost effectiveness
analysis estimates that installation of
SCR at Laramie River Station would
range from between $3,589 and $3,903
per ton of NOX removed—far above the
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$1,350/ton threshold used in its
presumptive BART determination. 78
FR at 34775–34776. EPA does not
mention its presumptive BART limits in
its proposed disapproval of Wyoming’s
BART determinations, and offers no
explanation for departing from the
presumptive levels and the associated
use of combustion controls. 78 FR at
34772–34777. Moreover, when Sargent
& Lundy estimated costs of SCR at
Laramie River Station based on a
detailed scoping-level study, it found
that costs per ton of NOX removed
would range from $8,531 to $9,048, an
amount seven times greater than the
threshold used in the presumptive
BART determination. Sargent & Lundy
Evaluation, Table 7. See also Section
XVIII.A.
We received numerous comments
earlier that EPA’s regional haze FIP is
improper because the BART units are
meeting the presumptive limits in the
BART guidelines based on the
installation of combustion controls.
Commenters go on to assert that the
BART Guidelines only require the
installation of LNBs/OFA and that EPA
determined in the guidelines that SCR
was generally not cost-effective for
BART. One commenter noted that EPA
has completely ignored the presumptive
BART limits in the proposed action and
that this is contrary to the express
requirements in both the RHR and the
BART Guidelines. The commenter goes
on to say that EPA’s attempt to
completely ignore the BART limits
makes the presumptive BART limits
meaningless and this is contrary to the
requirements of the CAA and the clear
intent of the BART Guidelines. One
commenter asserted that the BART
Guidelines show that an alternative
analysis is required only when a source
cannot meet the presumptive limits, and
that while a state may choose to
establish a limit that is more stringent
than the BART limit, there is nothing in
the BART Guidelines that would require
a state to do so.
Commenters asserted that EPA
adopted the presumptive BART limits to
establish the specific control levels
required for EGUs. Commenters point
out that EPA has not repealed the
presumptive limits from the
promulgated BART Guidelines, but in
this action EPA does not even deign to
acknowledge the existence of the
presumptive limits, as if the
presumptive BART limits were no
longer a binding regulation.
Commenters argued that unless and
until EPA goes through notice and
comment rulemaking to remove the
presumptive emissions limits and
establish other requirements consistent
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with the CAA, then EPA must approve
a state’s BART determination that meets
the presumptive regulatory limits.
Response: We disagree with the
commenters. The CAA states the
following regarding emission limits for
fossil-fuel fired generating power plants
having a total generating capacity in
excess of 750 MW:
In the case of a fossil-fuel fired generating
power plant having a total generating
capacity in excess of 750 megawatts, the
emissions limitations required under this
paragraph shall be determined pursuant to
guidelines, promulgated by the
Administrator under paragraph (1).
EPA disagrees that the CAA mandates
specific control levels (i.e., presumptive
emission limits) for power plants with
a total generating capacity of 750 MW or
greater. Rather, the CAA directed EPA to
develop guidelines for states to establish
BART emission limits, and required that
power plants having a total generating
capacity in excess of 750 MW follow the
guidelines when establishing BART
emission limits. In response, in 2005
EPA promulgated the BART Guidelines,
which provide a detailed description of
how a state must approach the BART
determination process for certain large
EGUs, and required that the
determination of fossil-fuel fired power
plants having a total generating capacity
greater than 750 MW must be made
pursuant to the BART Guidelines. As
such, the plain reading of the CAA
language makes it clear the intent was
to make the BART Guidelines
mandatory for EGUs larger than 750
MW, as opposed to presumptive limits.
Compliance with EPA’s
‘‘presumptive’’ NOX emission limits
does not excuse a state from performing
such an analysis, because the
presumptive limits serve as a floor, not
a ceiling, for BART. Furthermore, the
presumptive limits in the Guidelines do
not supplant the Act’s mandate to
consider the five statutory factors, as
codified in the RHR.68 Additionally,
commenters provide no showing that
the assumptions underlying EPA’s
older, generic calculations
representative of hundreds of plants in
fact represent BART, under current
circumstances, at these particular
plants. Moreover, far from rendering the
68 Given the statutory mandate, a state may only
avoid full consideration of the five statutory factors
if an initial consideration demonstrates that further
analysis is moot—for example, where the state
demonstrates that the subject unit already employs
the ‘‘most stringent control available.’’ 70 FR at
39165. Where these unique circumstances are not
present, a state’s failure to consider the five factors
(for large EGUs, by complying with the BART
Guidelines’ five-step analysis) is grounds for
disapproval. CAA Section 110(k)(3), (l); see
Oklahoma, 723 F.3d at 1207–08.
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presumptive limits ‘‘meaningless,’’
EPA’s interpretation is in fact necessary
to effectuate the purpose of the Haze
Rule. The fundamental purpose of the
BART requirement is to determine the
‘‘best system of continuous emission
control technology available and
associated emission reductions
achievable for each BART-eligible
source.’’ 40 CFR 51.308(e)(1)(ii)(A)
(emphasis added). To allow states to
adopt the presumptive limits without
any assessment of whether those limits
represent the ‘‘best’’ control for a
particular EGU at the time of the
determination would be unreasonable in
light of the overarching purpose of the
Haze Rule and the CAA’s visibility
requirements. The presumptive limits
ensure that states aim to achieve, at a
minimum, the level of emissions
reduction that was available and costeffective at the time the BART
Guidelines were adopted. EPA
elaborated in the BART Guidelines
themselves, clarifying that the Agency
expected states to not only meet, but in
appropriate cases exceed the
presumptive limits: ‘‘While these
[presumptive] levels may represent
current control capabilities, we expect
that scrubber technology will continue
to improve and control costs continue to
decline. You should be sure to consider
the level of control that is currently best
achievable at the time that you are
conducting your BART analysis.’’ 40
CFR part 51, App. Y, at IV.E.4 (emphasis
added). Therefore, EPA’s proposed
rulemaking on the Wyoming regional
haze SIP is not contrary to the
requirements of the CAA and
regulations.
Additionally, for each source subject
to BART, the RHR, at 40 CFR
51.308(e)(1)(ii)(A), requires that states
identify the level of control representing
BART after considering the factors set
out in CAA section 169A(g), as follows:
‘‘[s]tates must identify the best system of
continuous emission control technology
for each source subject to BART taking
into account the technology available,
the costs of compliance, the energy and
non-air quality environmental impacts
of compliance, any pollution control
equipment in use at the source, the
remaining useful life of the source, and
the degree of visibility improvement
that may be expected from available
control technology.’’ 70 FR 39158. In
other words, the presumptive limits do
not obviate the need to identify the best
system of continuous emission control
technology on a case-by-case basis
considering the five factors. A state may
not simply ‘‘stop’’ its evaluation of
potential control levels at the
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presumptive level of control if more
stringent control technologies or limits
are technically feasible. We do not read
the BART guidelines in appendix Y to
contradict the requirement in our
regulations to determine ‘‘the degree of
reduction achievable through the
application of the best system of
continuous emission reduction’’ ‘‘on a
case-by-case basis,’’ considering the five
factors. 40 CFR 51.301 (definition of
Best Available Retrofit Technology); 40
CFR 51.308(e).
Also, our interpretation is supported
by the following language in our BART
guidelines: ‘‘While these levels may
represent current control capabilities,
we expect that scrubber technology will
continue to improve and control costs
continue to decline. You should be sure
to consider the level of control that is
currently best achievable at the time
that you are conducting your BART
analysis.’’ 70 FR 39171.
The presumptive limits are
meaningful as indicating a level of
control that EPA generally considered
achievable and cost effective at the time
it adopted the BART guidelines in 2005,
but not a value that a state could adopt
without conducting a five factor
analysis considering more stringent,
technically feasible levels of control.
Commenters focus on narrow
passages of the BART guidelines to
support their view that the presumptive
limits represent the most stringent
BART controls that EPA can require for
regional haze. However, these passages
must be reconciled with the language of
the RHR cited above, as well as other
passages of the BART guidelines and
associated preamble. A central concept
expressed in the guidelines is that a
state is not required to consider the five
factors if it has selected the most
stringent level of control; otherwise, a
state must fully consider the five factors
in determining BART. 40 CFR part 51,
appendix Y, section IV.D.1, step 1.9.
Undoubtedly, as the commenters
note, the presumptive limits for NOX
represent cost effective controls, but it is
well-understood that limits based on
combustion controls do not represent
the most stringent level of control for
NOX. Thus, a state which selects
combustion controls and the associated
presumptive limit for NOX as BART
may only do so after rejecting more
stringent control technologies based on
full consideration of the five factors.
Our interpretation reasonably reconciles
the various provisions of our
regulations. We have clearly
communicated our views on this subject
in other states, and, following our
interpretation, Wyoming conducted an
analysis of control technologies that
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5097
would achieve a more stringent limit
than combustion controls.
In promulgating a FIP for the
Wyoming BART sources, we arrived at
an emission limit based on
consideration of the five factors.
Contrary to the commenter’s suggestion,
EPA’s BART guidelines do not establish
a presumptive cost effectiveness level
that is a ‘‘safe harbor’’ or ‘‘shield’’ for
state BART determinations, or that EPA,
when promulgating a FIP, may not
exceed in determining BART. Once a
FIP is required, we stand in the state’s
shoes. This is not EPA establishing a
new presumptive limit or national rule;
it is EPA, acting in the State’s shoes,
conducting a reasonable source-specific
consideration of cost and the other
regulatory factors.
9. Compliance With 40 CFR 51.308
Comment: EPA should have judged
Wyoming’s BART determinations on the
basis of whether or not the Wyoming
BART determinations are ‘‘necessary’’ to
make ‘‘reasonable progress.’’ EPA’s
RHRs provide two regulatory paths to
address regional haze. (See 77 FR 30953,
30957 (May 24, 2012).) ‘‘One is 40 CFR
51.308, requiring states to perform
individual point source BART
determinations and evaluate the need
for other control strategies.’’ Id. ‘‘The
other method for addressing regional
haze is through 40 CFR 51.309, and is
an option for nine states termed the
‘Transport Region States’ which
include: . . . Wyoming, . . . By meeting
the requirements under 40 CFR 51.309,
states are making reasonable progress
toward the national goal of achieving
natural visibility conditions for the 16
Class I areas on the Colorado Plateau.’’
Id. Wyoming submitted the Wyoming
regional haze SIPs under Section 309.
Therefore, the requirements of Section
308 only apply to the extent required by
Section 309. Importantly, NOX
emissions and controls under Section
309 are treated differently than NOX
emissions and controls under Section
308. This is because Congress and EPA
purposefully focused Section 309 on
addressing the issue of SO2 emissions,
the predominant cause of regional haze
on the Colorado Plateau in the western
US. By contrast, Section 309 recognizes
that NOX emissions have a significantly
smaller impact on visibility on the
Colorado Plateau. In fact, the WRAP
report estimated that ‘‘stationary source
NOX emissions result in nitrates that
probably cause about 2 to 5 percent of
the impairment on the Colorado
Plateau.’’ Several illustrations in the
WRAP NOX report show that nitrate
emissions have very little impact on
Class I areas in or near Utah and
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Wyoming. The WRAP report also
explains that ‘‘NOX controls will have a
relatively small impact on PM and
visibility in the West.’’
The Wyoming SIP, including BART
determinations for NOX, is consistent
with the WRAP’s NOX information, and
also properly acknowledges the
relatively small impact nitrates from
stationary sources like PacifiCorp’s
BART units have on visibility
impairment in Wyoming. Wyoming’s
SIP, page 62, states that ‘‘the majority of
nitrate stems from mobile sources.’’ The
SIP also explains that in all but one
Class I area ‘‘contributions from other
states and Canada are much larger than
contributions from inside Wyoming.’’
Id. Wyoming correctly determined,
consistent with the WRAP reports and
other data, that controlling NOX
emissions from stationary sources like
PacifiCorp’s BART units would yield
very little visibility improvement in
Wyoming. EPA’s own regional haze
visibility map shows that visibility in
Wyoming is among the best in the
country.
In light of the above information, it is
understandable that Section 309 focuses
on addressing SO2 emissions. Indeed,
WRAP focused their efforts primarily on
SO2 emissions because the research
indicated this pollutant had the greatest
impact on visibility. ‘‘Recommendations
for Improving Western Vistas,’’ authored
by the Grand Canyon Visibility
Transport Commission, (June 10, 1996)
at page 32 (identifying sulfates as ‘‘the
most significant contributor to visibility
impairment’’ from stationary sources).
In a separate action, EPA acknowledged
that Wyoming has complied with the
Section 309’s SO2 requirements and
made great progress towards improving
and protecting visibility as a result. For
all of these reasons, Section 309 takes a
different approach to NOX emissions
than does Section 308, placing much
less emphasis on the need for significant
reductions in NOX emissions and
instead focusing almost all attention and
resources in the western U.S. on
reducing SO2 emissions. EPA’s FIP,
with its incredibly expensive and
unneeded NOX control equipment,
ignored the focus and intent of Section
309 and refused to acknowledge the
discretion available to Wyoming to
balance this information in making its
BART determinations.
Additionally, as a result of the lesser
emphasis in Section 309 on NOX
emissions, Section 51.309(d)(4)(vii)
requires a regional haze SIP to ‘‘contain
any necessary long term strategies and
BART requirements for stationary
source . . . NOX emissions.’’ Section
308, by contrast, does not include a
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similar ‘‘necessary to achieve reasonable
progress’’ threshold for BART. The
difference between the two
requirements is both intentional and
meaningful. If a state like Wyoming
finds that a particular BART
requirement is not ‘‘necessary’’ to make
‘‘reasonable progress,’’ then that BART
requirement should not be required as
part of the regional haze SIP. This
interpretation is supported by EPA’s
own position in Central Arizona Water
Conservancy District v. United States,
990 F.2d 1531 (9th Cir. 1993). There,
‘‘EPA chose not to adopt the emission
control limits indicated by the BART
analysis, but instead to adopt an
emissions limitations standard that
would produce greater visibility
improvement at a lower cost.’’ Id. at
1543. The court agreed with EPA,
stating that ‘‘Congress’s use of the term
‘including’ in Section 7491(b)(2) prior to
its listing BART as a method of attaining
‘reasonable progress’ supports EPA’s
position that it has the discretion to
adopt implementation plan provisions
other than those provided by BART
analyses in situations where the agency
reasonably concludes that more
‘reasonable progress’ will thereby be
attained.’’ Id. This same rationale
applies to the term ‘‘necessary’’ in
Section 309. Therefore, in rejecting
Wyoming’s regional haze SIP and
adopting a FIP, EPA is required to show
that the Wyoming SIP will not achieve
‘‘necessary reasonable progress’’
towards the visibility goal, and EPA’s
FIP will. EPA has failed to provide any
support for such a position.
Other comments suggest that by
meeting the requirements under 40 CFR
51.309, states are making reasonable
progress toward the national goal of
achieving natural visibility conditions
for the 16 Class I areas on the Colorado
Plateau. Wyoming submitted its regional
haze SIPs under section 51.309.
Therefore, the requirements of section
51.308 only apply to the extent required
by section 51.309.
Wyoming’s regional haze SIP is
consistent with WRAP’s NOX
information, and also emphasizes the
relatively small impact nitrates that
stationary sources have on visibility
issues in Wyoming. Wyoming correctly
determined, consistent with the WRAP
reports and other data, that controlling
NOX emissions from stationary sources
like PacifiCorp’s units would yield very
little visibility improvement in
Wyoming. Section 51.309
understandably is intended to focus on
SO2 due to the greater visibility impact
from SO2. In a separate action, EPA
acknowledged that Wyoming has
complied with the section 51.309’s SO2
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requirements and made great progress
towards improving and protecting
visibility as a result.
As a result of the lesser emphasis in
section 51.309 on NOX emissions, 40
CFR 51.309(d)(4)(vii) requires a regional
haze SIP to ‘‘contain any necessary long
term strategies and BART requirements
for stationary source . . . NOX
emissions.’’ Section 51.308, by contrast,
does not contain a similar ‘‘necessary’’
threshold for BART. If a BART
requirement is not ‘‘necessary’’ for a
section 51.309 state, such as Wyoming,
to make ‘‘reasonable progress,’’ then it is
not required as part of the regional haze
SIP. In other words, section 51.309
allows a state even more discretion
because of this ‘‘necessary’’ requirement
than would otherwise be allowed under
section 51.308. Wyoming has authority
to adopt those regional haze SIP
provisions that it believes provide for
‘‘reasonable progress,’’ even when those
plan provisions do not align directly
with BART as that may be determined
under Section 51.308.
40 CFR 51.309(d)(4)(vii) provides that
‘‘[a]ny such BART provisions may be
submitted pursuant to either
51.308(e)(1) or 51.308(e)(2).’’ By using
the permissive term ‘‘may,’’ EPA makes
clear that such a submission, under
either subsection, is voluntary and not
mandatory for section 51.309 states. For
this reason, Wyoming, as a WRAP state,
was never required to comply with 40
CFR 51.308(e)(1)(ii)(A) and is only
required to include whatever BART
NOX determinations are ‘‘necessary,’’ as
determined by the State. If Wyoming’s
section 51.309’s SO2 controls already
provide the adequate level of visibility
improvement and protection, then, by
definition, little or no BART NOX
controls would be ‘‘necessary.’’ EPA has
failed to show how any ‘‘necessary’’
NOX controls were excluded from the
Wyoming regional haze SIP; therefore it
should approve Wyoming’s regional
haze SIP.
Response: We disagree with these
comments. As explained in our
proposed rulemaking for section
51.309(d)(4)(viii), we explained that the
provision ‘‘is intended to clarify that if
EPA determines that the SO2 emission
reductions milestones and backstop
trading program submitted in the
section 51.309 SIP makes greater
reasonable progress than BART for SO2,
this will not constitute a determination
that BART for PM or NOX is satisfied for
any sources which would otherwise be
subject to BART for those pollutants’’
(emphasis added). 70 FR 44169 (Aug. 1,
2005). EPA does not interpret this rule
to mean that there are different BART
requirements for section 308 and 309
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regional haze SIPs. EPA’s rulemaking
made no finding that BART
determinations conducted for a state
submitting a SIP under section 51.309
should be conducted any differently
than a state submitting a FIP under only
section 308. The use of the word
‘‘necessary’’ in section 51.309(d)(4)(viii)
was to explain that some states may
have BART NOX emission limitations,
while others may not. As already
explained elsewhere in proposal and
our response to other comments,
Wyoming did not conduct a proper
evaluation of the five statutory factors,
as required by 40 CFR 51.308(e)(1)(ii)(A)
and section 169A(g) of the CAA.
EPA also disagrees with commenter’s
assertion that a BART submission is
discretionary. 40 CFR 51.309(d)(4)(viii)
is clear in that the implementation plan
‘‘must’’ contain BART requirements.
The proposed rulemaking explained
that the provision that provides that
‘‘[a]ny such BART provisions may be
submitted pursuant to either Section
51.308(e)(1) or 51.308(e)(2),’’ was
included to ‘‘allow States the flexibility
to address these BART provisions either
on a source-by-source basis under
Section 51.308(e)(1), or through an
alternative strategy under Section
51.308(e)(2).’’ 70 FR 44169 (Aug. 1,
2005).
Moreover, EPA’s proposal made clear
that ‘‘[i]n limited circumstances, it may
be possible for a State to demonstrate
that an alternative program which
controls only emissions from SO2 could
achieve greater visibility improvement
than application of source-specific
BART controls on emissions of SO2,
NOX and/or PM. We nevertheless
believe that such a showing will be
quite difficult to make in most
geographic areas, given that controls on
SO2 emissions alone in most cases will
result in increased formation of
ammonium nitrate particles.’’ 70 FR
44169 (Aug. 1, 2005). Wyoming’s RH
SIP does not include a demonstration
that the backstop SO2 trading program
under Section 51.309 achieves greater
visibility improvement than application
of source-specific PM BART controls.
Therefore, Wyoming’s Section 51.309
SIP does not provide the adequate level
of visibility improvement to meet the
BART requirements.
With respect to the relationship of
BART and requirements for reasonable
progress under 40 CFR 51.308, EPA
interprets the reasonable progress
requirements to apply to BART sources.
As explained in our guidance, due to
the similarity of the BART and
reasonable progress factors, states may
reasonably rely on their BART
determinations to show reasonable
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progress for those sources for the first
planning period. However, BART is an
independent requirement of the statute
and the RHR. We have disapproved
certain BART determinations by
Wyoming not due to a failure to make
reasonable progress, but due to a failure
to consider the BART factors
appropriately.
10. Legal Analysis
Comment: We received comments
that the proposed rule is costly and that
preliminary calculations by the State of
Wyoming showed that the BART and
long-term strategies under the proposed
rule will cost over $170 million on an
annualized basis; with total capital cost
will be over $1 billion, and annual
operating costs of nearly $600 million.
Commenters went on to say that since
the rulemaking action will exceed $100
million dollars in annual costs it should
be reviewed according to the standards
established in Executive Orders 12866
and 13563. * * *
Another commenter notes that EPA
has also failed to conduct any analysis
of the impacts under the Unfunded
Mandates Reform Act (UMRA). In
addition to the capital costs of nearly
$750,000,000 for Laramie River Station
alone, the annual operating costs of an
SCR system at Laramie River Station are
over $ 15,000,000. The commenter
asserts that this amount is nearly double
that projected by EPAs expert Andover
of just under ($5,000,000), using
generalized information. These annual
operating costs, on top of the capital
costs, for the three units at Laramie
River Station alone, are significant, and
when coupled with the impacts for the
remaining five PacifiCorp units, far
exceed the thresholds of the UMRA.
The UMRA is designed to ensure that
Congress and federal agencies analyze
the impact of proposed statutes and
regulations on local governments and
other entities before taking action.
Where the estimates indicate at least a
$50 million per fiscal year direct cost of
all intergovernmental mandates, or a
$100 million per fiscal year direct cost
of private sector mandates, an analysis
is required to evaluate the impact on
local governments and private entities,
and if necessary, the mandate must be
funded. Western Minnesota, Missouri
River Energy Services, and the
governmental entities they serve—
together with the others served by the
remaining co-owners of Laramie River
Station—will feel an annual impact in
excess of $50 million per year should
the EPA’s FIP become final. Failure of
EPA to conduct any analysis of the
impact of imposing an unfunded
mandate on the small governmental
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5099
entities served by Laramie River Station,
and the other BART units in Wyoming
shows a blatant disregard for the
regulatory process and protections that
are to be accorded such significant
rulemakings.
Earlier comments argued that the
UMRA has been applied to EPA actions
where the costs to regulated entities in
numerous states have been aggregated.
Based upon this precedent, PacifiCorp
believes that EPA should aggregate all
regional haze compliance costs across
Wyoming, Utah, Colorado and Arizona
for PacifiCorp, which would easily
exceed the $100 million threshold. At a
minimum, EPA should aggregate costs
for EPA’s FIPs in Wyoming and
Arizona, which would also exceed the
$100 million threshold.
Additional earlier comments
suggested that the UMRA requires
federal agencies to identify unfunded
federal mandates. For rules that contain
federal mandates, such as EPA’s
regional haze FIP action requiring
expensive pollution controls, title II of
UMRA requires the agencies to prepare
written statements, or ‘‘regulatory
impact statements,’’ (RIS) containing
specific descriptions and estimates,
including a qualitative and quantitative
assessment of the anticipated costs and
benefits of the mandate. This
requirement is triggered by any rule that
‘‘may result in the expenditure by state,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100,000,000 or more (adjusted
annually for inflation) in any 1
year. . .’’ 2 U.S.C. 1532(a).
When a RIS is required, the agency is
also required to ‘‘identify and consider
a reasonable number of regulatory
alternatives and from those alternatives
select the least costly, most cost
effective, or least burdensome
alternative that achieves the objectives
of the rule’’ or explain why that
alternative was not selected. 2 USCA
Section 1535.
Here, EPA has failed to comply with
the UMRA, arguing that the regional
haze FIP ‘‘does not contain a federal
mandate that may result in expenditures
that exceed the inflation adjusted
UMRA threshold of $100 million.’’ EPA
is wrong. PacifiCorp currently
anticipates spending more than $100
million dollars in at least 2014 ($104
million), 2015 ($175 million), and 2016
($154 million) to comply with EPA’s
regional haze FIP for Wyoming (based
on alternative ‘‘one’’ for the Jim Bridger
plant). If the regional haze compliance
costs imposed by EPA’s proposed FIP in
Arizona and EPA’s approval of the
Colorado regional haze SIP are factored
in, the costs to PacifiCorp in a given
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year would be significantly higher. Also,
when the BART NOX and PM
determinations are approved by EPA for
Utah, these costs to PacifiCorp in a
given year could be much, much higher.
Response: We disagree with this
comment. Under section 202 of the
UMRA, before promulgating any final
rule for which a general notice of
proposed rulemaking was published,
EPA must prepare a written statement,
including a cost-benefit analysis, if that
rule includes any ‘‘Federal mandates’’
that may result in expenditures to State,
local, and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more (adjusted for
inflation) in any one year. EPA has
determined that this rule does not
contain a Federal mandate that may
result in expenditures that exceed the
inflation-adjusted UMRA threshold of
$100 million (in 1996 dollars) by State,
local, or Tribal governments or the
private sector in any one year. We
estimate that the total annual costs in
the aggregate are approximately $93
million (see Table 1).
Comment: EPA’s regional haze FIP
states that EPA’s proposed action is not
subject to Executive Order 13211,
‘‘Actions Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28,355
(May 22, 2001)), because the proposed
action ‘‘is not a significant regulatory
action under Executive Order 12866.’’
78 FR 34790. EPA further claims the
proposed regional haze FIP is not a
‘‘significant regulatory action’’ under
Executive Order 12866 because the
‘‘proposed FIP applies to only five
facilities’’ and is ‘‘therefore not a rule of
general applicability.’’ EPA is incorrect,
and should withdraw its regional haze
FIP.
Executive Order 13211 provides that
agencies shall submit a statement of
energy effects for matters ‘‘identified as
significant energy actions.’’ A
‘‘significant energy action’’ is defined as
‘‘any action by an agency . . . that
promulgates or is expected to lead to the
promulgation of a final rule or
regulation . . . that is a significant
regulatory action under Executive Order
12866 or any successor order’’ and
‘‘likely to have a significant adverse
effect on the supply, distribution, or use
of energy’’; or is ‘‘designated by the
Administrator of the Office of
Information and regulatory Affairs as a
significant energy action.’’ Id. Section
4(b) (emphasis added). Executive Order
12866, in turn, which concerns
Regulatory Planning and Review,
defines a ‘‘significant regulatory action’’
as any regulatory action that is likely to
result in a rule that may: (1) Have an
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annual effect on the economy of $100
million or more or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities. 58 FR
51735, 51738 (Oct. 4, 1993)
According to PacifiCorp’s current
estimates (excluding allowance for
funds used during construction
(AFUDC)), it will spend more than $100
million dollars in capital costs alone in
2014 ($225 million), 2015 ($139
million), 2017 ($146 million) and 2018
($118 million) to comply with EPA’s
regional haze FIP for Wyoming (based
on alternative ‘‘one’’ for the Jim Bridger
plant). If regional haze compliance costs
currently imposed or approved by EPA
on PacifiCorp’s BART Units in Arizona
and Colorado are factored in, the total
capital cost impacts to PacifiCorp in any
given year would be significantly
higher; increasing to approximately
$246 million in 2014, $190 million in
2015, $168 million in 2016, $181
million in 2017, and $118 million in
2018. Also, because the BART NOX and
PM determinations have not yet been
approved by EPA for PacifiCorp’s BART
Units in Utah, EPA’s ultimate BART
requirements in Utah likely will add
even more costs in overlapping
installation and compliance years, with
total project costs for SCR installations
on PacifiCorp’s Utah units currently
estimated to cost in excess of $150
million per unit to install (again,
excluding AFUDC). Based upon these
basic costs alone, there is no doubt that
EPA’s FIP meets the definition of a
‘‘significant regulatory action.’’ Other
large costs, including those related to
EPA’s BART determinations for Basin
Electric, also should be factored into
this analysis together with PacifiCorp’s
costs because they are part of the same
‘‘sector of the economy.’’ Also, as
demonstrated by PacifiCorp’s July 12,
2012, submittal in this docket, EPA’s
regional haze FIP will have an adverse
effect on the supply and distribution of
electricity within PacifiCorp’s system.
Therefore, EPA’s determination that
Executive Order 13211 did not apply is
incorrect, and arbitrary and capricious.
Moreover, EPA has admitted in the
proposed rule that system-wide
‘‘affordability’’ costs should be part of
the BART analysis. 78 FR 34756.
Because EPA’s FIP is a ‘‘significant
regulatory action,’’ EPA must prepare a
‘‘Statement of Energy Effects’’ for the
Administrator of the Office of
Information and Regulatory Affairs,
Office of Management and Budget. (See
Executive Order 13211, Section 2.)
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Because EPA did not do so, the regional
haze FIP is improper.
Executive Order 12866, in turn, which
concerns Regulatory Planning and
Review, defines a ‘‘significant regulatory
action’’ as any regulatory action that is
likely to result in a rule that may: (1)
Have an annual effect on the economy
of $100 million or more or adversely
affect in a material way the economy, a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
or tribal governments or communities.’’
Also, as demonstrated by PacifiCorp’s
July 12, 2012 submittal in this docket,
EPA’s regional haze FIP action will have
an adverse effect on the supply and
distribution of electricity within
PacifiCorp’s system. Therefore, EPA’s
determination that Executive Order
13211 did not apply is incorrect, and
arbitrary and capricious.
Moreover, because EPA’s regional
haze FIP action is a ‘‘significant
regulatory action,’’ before imposing its
regional haze FIP EPA must first prepare
a ‘‘Statement of Energy Effects’’ for the
Administrator of the Office of
Information and Regulatory Affairs,
Office of Management and Budget. Such
a statement must include a ‘‘detailed
statement’’ by the agency concerning
‘‘any adverse effects on energy supply,
distribution, or use (including a
shortfall in supply, price increases . . .)
should the proposal be implemented,’’
and ‘‘reasonable alternatives to the
action with adverse energy effects and
the expected effects of such alternatives
on energy supply, distribution, and
use.’’ Accordingly, based on an analysis
of the relevant factors, EPA’s regional
haze FIP is improper because EPA failed
to conduct the required regulatory
analysis and failed to prepare the
required documentation.
Executive Order 12866, in turn, which
concerns Regulatory Planning and
Review, defines a ‘‘significant regulatory
action’’ as any regulatory action that is
likely to result in a rule that may: (1)
Have an annual effect on the economy
of $100 million or more or adversely
affect in a material way the economy, a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
or tribal governments or communities.’’
Response: EPA disagrees that
Executive Order 13211 applies to this
action. Order 13211 is only applicable
to an agency regulation that is a
‘‘significant regulatory action’’ under
Executive Order 12866. Executive Order
13211(4)(b). Order 13211 also explicitly
adopts the definitions of ‘‘regulation’’
and ‘‘rule’’ as explained in Executive
Order 12866. Executive Order
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13211(4)(a). However, this action does
not fit within the definition of Executive
Order 12866, which defines a
‘‘regulation’’ or ‘‘rule’’ as an ‘‘agency
statement of general applicability.’’
Executive Order 12866(3)(d). Here,
EPA’s action was individually tailored
for a limited number of BART eligible
sources in Wyoming and is not
generally applicable. Thus this action is
not governed by Order 12866 and,
therefore, is also not governed by
Executive Order 13211. As discussed in
more detail in Statutory and Executive
Orders Review section of this document,
the costs for this action are about $93
million annually.
Moreover, as explained in more detail
elsewhere, EPA took the cost of
compliance into consideration when
making BART determinations to ensure
this rule’s requirements are beneficial
and not unduly burdensome. The
commenter is correct that EPA may, in
its discretion, consider system
affordability costs beyond the direct
compliance costs on an individual
facility in extraordinary circumstances.
As explained in the Basis for Final
Action section and elsewhere in the
proposed and final actions, we proposed
to approve the State’s BART and
reasonable progress determinations for
Jim Bridger Units 1 and 2, but on a
different basis.69 In response to our
proposal, we received both supportive
and adverse comments regarding
whether the affordability provisions of
the BART Guidelines should apply to
Units 1 and 2. As explained in more
detail in our responses to these
comments, we agree that PacifiCorp did
not make a sufficient showing that it
could not afford to install LNB/SOFA +
SCR on Units 1 and 2 within the fiveyear compliance period. Nevertheless,
we also received new information
regarding the costs of compliance and
visibility benefits associated with Jim
Bridger and have revised our cost
estimates and visibility modeling for all
69 There, we indicated that given the number of
SCR retrofits PacifiCorp had to perform in Wyoming
and in other states, it might not be affordable for
PacifiCorp to install two additional SCRs on Jim
Bridger Units 1 and 2 within the five-year BART
compliance period. We requested additional
information from commenters regarding whether
the affordability provisions of the BART Guidelines
should be applied to Units 1 and 2. In the
alternative, we proposed to find that NOX BART for
Units 1 and 2 was an emission limit of 0.07 lb/
MMBtu (30-day rolling average) based on the
installation of LNB/SOFA + SCR with a compliance
deadline of five years. Under this scenario, we
acknowledged that the cost-effectiveness of LNB/
SOFA + SCR at Units 1 and 2 was within the range
of what EPA and the State itself had found
reasonable in other BART determinations. We also
considered the significant visibility improvement
demonstrated by the State’s modeling to warrant
LNB/SOFA + SCR as BART.
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four units accordingly. Using this
revised information, we re-evaluated the
five BART factors. Ultimately however,
while we believe that these costs and
visibility improvements could
potentially justify LNB/SOFA + SCR as
BART, because this is a close call and
because the State has chosen to require
SCR as a reasonable progress control, we
believe deference to the State is
appropriate in this instance. We are
therefore finalizing our approval of the
State’s determination to require SCR at
Jim Bridger Units 1–4, with an emission
limit of 0.07 lb/MMBtu (30-day rolling
average), as part of its LTS. We also note
that, neither the CAA nor the regional
haze regulations require EPA to
consider costs beyond an individual
facility’s direct compliance costs. 42
U.S.C.A. Section 7491(g)(1), (2); 40 CFR
51.301. Further, nothing in the Order is
to be construed to impair or otherwise
affect the authority granted by law to
EPA, nor does it create any right or
benefit enforceable at law.70
Comment: The EPA’s FIP fails to
account for the significant economic
impacts on small entities as required by
the Regulatory Flexibility Act. The
estimated capital cost alone to install
SCRs at Laramie River Station only is
nearly $750,000,000. For Western
Minnesota and its members the total
impact would result in an increase in
wholesale electric rates of twelve
percent, which includes a ten percent
increase due to the capital costs for
installation of the SCRs and an
additional increase of two percent
annually for operating expenses. The
members of Western Minnesota and
Missouri River Energy Services are
small governmental units, which must
be given consideration under the
Regulatory Flexibility Act.
Under the Regulatory Flexibility Act,
EPA is required to analyze the economic
impact of proposed regulations when
there is likely to be a significant
economic impact on a substantial
number of small entities, and to
consider regulatory alternatives that will
achieve the agency’s goal while
minimizing the burden on small
entities. The certification that EPA has
provided with this proposed rule is
perfunctory at best, and does not seek to
analyze the actual elements required by
the Regulatory Flexibility Act.
70 For example, EO 12866 (Sec. 10, Judicial
review) explicitly states, ‘‘This Executive order is
intended only to improve the internal management
of the Federal Government and does not create any
right or benefit, substantive or procedural,
enforceable at law or equity by a party against the
United States, its agencies or instrumentalities, its
officers or employees, or any other person.’’
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The EPA has wholly failed to conduct
any regulatory flexibility analysis
pursuant to the Regulatory Flexibility
Act, which further demonstrates the
arbitrariness of this proposed FIP. If it
had, it would acknowledge that the
Wyoming SIP for NOX provides a
reasonable alternative that has a far less
significant economic impact on small
entities while providing virtually the
same improvement in visibility.
Response: EPA disagrees with this
comment. Courts have interpreted the
Regulator Flexibility Act to require a
regulatory flexibility analysis only when
a substantial number of small entities
will be subject to the requirements of
the agency’s action. See, e.g., Mid-Tex
Elec. Co-op, Inc. v. FERC, 773 F.2d 327,
342 (D.C. Cir. 1985). The economic
analysis described in the Regulatory
Flexibility Act is not required; however,
if the head of an agency certifies that the
rule will not have a significant
economic impact on a significant
number of small entities. 5 U.S.C.
605(b). As the commenter noted, such
certification was made by EPA and
published in the Federal Register as
required by the act. No other action is
required by EPA because the agency is
not imposing any requirements on small
entities. Here, only a limited number of
entities have incurred compliance
obligations under this action, and none
of those entities are ‘‘small entities.’’
EPA still seeks to minimize the
impact of its actions have on small
entities. EPA sought comments
regarding the economic impact from all
entities affected by this action and
carefully considered all relevant
information. As described elsewhere,
EPA believes that this action is
necessary to achieve the objectives of
the CAA and that the visibility
improvements justify the costs of this
rule, as established in the Act and
implementing regulations.
Comment: The underlying purpose of
Executive Order 12866 (Order) is to
foster a regulatory regime that respects
the role of local government, recognizes
that the private sector is the ‘‘best
engine for economic growth,’’ and
appreciates the need to develop
regulations that do not impose
‘‘unacceptable or unreasonable costs on
society.’’ Exec. Order No. 12,866, 58 FR
51735 (Oct. 4, 1993). The Order requires
agencies that propose a significant
regulatory action to consider a
multitude of quantitative and qualitative
factors during the rulemaking process.
Id.
A ‘‘significant regulatory action’’ is
one in which the resulting rule is likely
to ‘‘[h]ave an annual effect on the
economy of $100 million or more or
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adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs . . . or
State, local, or tribal governments or
communities.’’ 58 FR 51735.
Allow us, by way of example, the
opportunity to outline the significance
that the proposed rule will have on one
of Wyoming’s counties. The Laramie
River Station (Station), one of the five
targeted EGUs under the proposed FIP,
is the largest employer in Platte County.
These are good paying jobs that include
health and retirement benefits for the
Station’s employees. In a rural county
with 8,800 people, where the average
annual household income is $46,916,
there is concern that the use of a control
regime as proposed in the FIP may make
operation of the Station substantially
cost-prohibitive and therefore
jeopardize some of the best jobs in Platte
County. Moreover, the retrofitting
outlined in the proposed rule will likely
increase the electric rates of some of
Wyoming’s most vulnerable citizens.
The Station also provides a significant
source of revenue for Platte County. In
the 2012 Fiscal Year, the Station
provided over $3.7 million in state
assessed taxes. This is a significant
source of revenue for Platte County,
revenue that is needed to sustain
essential government functions, such as
operation of the county jail, maintaining
county roads and bridges, and county
health services. Platte County is but one
example. Each of the other potentially
affected counties (Converse, Lincoln,
and Campbell) share those three
principal concerns: (1) The targeted
EGUs provide a significant source of
employment to county residents, (2)
volatility of electric rates on some of
Wyoming’s most vulnerable citizens,
and (3) the EGUs provide a significant
source of revenue in order to sustain
essential county services.
For these reasons, Wyoming’s County
Commissioners cannot accept EPA’s
conclusion that the proposed rule is not
a significant regulatory action.
Accordingly, because the proposed rule
is a significant regulatory action, it
should be subject to review in
accordance with Executive Order 12866
and, by extension, Executive Order
13563.
Response: Executive Order 13563 is
supplemental to and reaffirms the
principles, structures, and definitions
governing contemporary regulatory
review that were established in
Executive Order 12866 of September 30,
1993. In general, the Order seeks to
ensure the regulatory process is based
on the best available science; allows for
public participation and an open
exchange of ideas; promotes
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predictability and reduces uncertainty;
identifies and uses the best, most
innovative, and least burdensome tools
for achieving regulatory ends; and takes
into account benefits and costs, both
quantitative and qualitative. However,
nothing in the Order shall be construed
to impair or otherwise affect the
authority granted by law to the Agency.
In our review process the cost of
compliance was one of the elements
addressed to ensure that the
requirements to achieve the goals stated
in the CAA were beneficial and not
burdensome to the regulated entity.
Please refer elsewhere in our response
to comments (e.g., Introduction and
BART sections) for a detailed analysis of
the elements required by the CAA and
RHR for BART determinations.
Comment: EPA, through this
proposed rule, fails to recognize, or even
to make an effort to understand, the
burden imposed upon Wyoming and its
local governmental entities. If it had
done so, it would have acknowledged
the fundamental value and attainable
progress derived from Wyoming’s
regional haze SIP. Instead, what EPA
proposes is a disingenuous and poorly
crafted rule that ignores fundamental
realities existing in the counties of
Wyoming, that they are rural,
traditionally low-income, and the
economic drivers are typically limited
to tourism, agriculture, or industry. As
such, the proposed rule would create a
disproportionate impact on those
communities playing host to industry.
‘‘Not in my backyard’’ is simply not
an option for many rural communities.
It therefore poses a fundamental
question of equity, a concern reiterated
in Executive Order 13563. Executive
Order No. 13,563, 76 FR 3821 (Jan. 18,
2011). Concerns regarding equity
require the EPA to consider who is
bearing the cost of the proposed rule.
The bottom line is that increased energy
costs that will result from the proposed
FIP will disproportionately hurt our
local economies.
Additional comments argue that EPA
is required to seek views of appropriate
local officials’ before imposing
regulatory requirements that might
significantly or uniquely affect a
particular governmental entity. EPA
must then seek to minimize any burdens
that significantly or uniquely affect the
local governmental entity in a manner
that is consistent with achieving the
underlying regulatory objective.
Response: EPA disagrees with this
comment. Executive Order 13563 is
supplemental to and reaffirms the
principles, structures, and definitions
governing contemporary regulatory
review that were established in
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Executive Order 12866. Executive Order
13563 Section 1(b). In general, the Order
seeks to ensure the regulatory process is
based on the best available science;
allows for public participation and an
open exchange of ideas; promotes
predictability and reduces uncertainty;
identifies and uses the best, most
innovative, and least burdensome tools
for achieving regulatory ends; and takes
into account benefits and costs, both
quantitative and qualitative. However,
nothing in the Order shall be construed
to impair or otherwise affect the
authority granted by law to EPA, nor
does it create any right or benefit
enforceable at law. Executive Order
13563 Section 7(b), (d). Each BART
source was examined and the cost of
compliance was one of the factors
addressed to ensure the rule’s
requirements are beneficial and not
unduly burdensome to the regulated
entities. We also note the following: (1)
There will likely be beneficial effects on
tourism due to improved visibility at the
Class I areas; 71 (2) emission controls can
be installed over a period of time; and
(3) in this final action we are mostly
approving the provisions of the State’s
SIP. Moreover, as explained above,
courts have interpreted the Regulatory
Flexibility Act to require a regulatory
flexibility analysis only when a
substantial number of small entities will
be subject to the requirements of the
agency’s action. While EPA has not
made a determination that a substantial
number of small entities will be subject
to the requirements of this final action,
we nevertheless seek to minimize the
impact our actions have on small
entities. EPA sought comments
regarding the economic impact from all
71 Results of visitor surveys from 22 studies
demonstrate that clean air and scenic vistas in
national parks consistently rank as the top priorities
of 90 percent or more of visitors. ‘‘National Park
Service Visitor Values & Perceptions of Clean Air,
Scenic Views & Dark Night Skies 1988–2011,’’
Natural Resource Report NPS/NRSS/ARD/NRR–
2013/632 (Feb. 2013), pp. 16–23 (including specific
studies focused on Wyoming’s national parks).
Additionally, as explained in recent National Park
Service (NPS) and U.S. Forest Service (USFS)
reports, the national parks and U.S. Forest Service
lands are important economic engines for local
communities and businesses, with visitors
generating significant economic activity and
support thousands of jobs. See, ‘‘Economic Benefits
to Local Communities from National Park
Visitation, 2011,’’ National Park Service, Natural
Resource Report NPS/NRSS/ARD/NRR–2013/632
(Feb. 2013) (NPS 2013 Report); and ‘‘National
Visitor Use Monitoring Results, National Summary
Report,’’ USDA Forest Service (May 20, 2013
update). In 2011, the NPS report indicates that nonlocal visitor spending to the national parks in
Wyoming was $621 million, creating more than
9,000 jobs. NPS 2013 Report, p. 26. The Grand
Teton National Park alone had more than 2.5
million visitors who spent $463 million which
created more than 6,000 jobs. NPS 2013 Report, p.
19.
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entities affected by this action and
carefully considered all relevant
information. As described elsewhere,
EPA believes that this action is
necessary to achieve the objectives of
the CAA and that the visibility
improvements justify the costs of this
rule, as established in the Act and
implementing regulations. Please refer
elsewhere for a detailed analysis of the
elements required by our regulations for
BART determinations.
Comment: In imposing these
additional costs the proposed action
will unnecessarily impact power
generation in Wyoming and lead
ultimately to increased utility costs for
Wyoming residents. Along these lines,
we believe the proposed action fails to
comply with Executive Order 13132.
The notice of proposed action states:
‘‘Under Executive Order 13132, EPA
may not issue a regulation that has
federalism implications, that imposes
substantial direct compliance costs, and
that is not required by statute, unless
the federal government provides the
funds necessary to pay the direct
compliance costs incurred by state and
local governments, or EPA consults with
state and local officials early in the
process of developing the proposed
regulation.’’ The notice switches that
standard by concluding: ‘‘This rule will
not have substantial direct effects on the
states, on the relationship between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely addresses the State not fully
meeting its obligation to prohibit
emissions from interfering with other
states measures to protect visibility
established in the CAA. Thus, Executive
Order 13132 does not apply to this
action.’’ (78 FR 34790).
The conclusion that Executive Order
13132 does not apply to this action
appears inconsistent with the standard
of the Order. The regulation will impose
substantial direct compliance cost on
local governments and there is no
provision for funding those costs by the
federal government. The Wyoming
Municipal Power Agency (WMPA) is a
joint powers board created by eight
Wyoming municipalities to generate and
transmit electricity for the residents of
those municipalities. Through a
partnership, WMPA and thus each of
those municipalities, own a substantial
interest in the Laramie River Station.
WMPA estimates that the EPA’s
proposal would cost an estimated $600
million for the Laramie River Station.
When costs are imposed upon a facility,
owners of that facility must initially
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bear those costs. Whether the generating
facility is owned 100% by a single
municipality, or shared through a
partnership or cooperative, as a result of
that ownership interest a substantial
direct compliance cost is imposed on
the municipal owners.
Response: EPA disagrees that
Executive Order 13132 applies to this
action. The Order only applies to agency
actions that fit within the Order’s
definition of ‘‘policies that have
federalism implications.’’ The Order
defines such actions as rules ‘‘that have
substantial direct effects on states, on
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Executive Order
13132 Section (1)(a). In contrast, this
action merely addresses Wyoming’s
existing obligations under the CAA and
thus does not impose any additional
burdens beyond that which the law
already requires. Because this rule does
not fit within the definition of ‘‘policies
that have federalism implications,’’ the
Order does not apply to this action.
Moreover, the additional elements of
the standard urged by the commenter do
not apply to this action. EPA must
consult a state or provide funding only
if a regulation that has federalism
implications (1) imposes substantial
direct compliance costs on state and
local governments, and (2) is not
required by statute. Executive Order
13132 Section (6)(b). First, as the
commenter noted, the regulation
imposes compliance costs on Laramie
River Station, not directly on state or
local governments. Municipalities may
possibly be indirectly impacted because
of their membership in WMPA, which
in turn retains a 1.37% ownership
interest in Laramie River Station
through a partnership with the Missouri
Basin Power Project. However, this
action does not impose any direct
compliance costs on local governments.
Second, the CAA requires that states
promulgate adequate SIPs to achieve the
CAA’s visibility goals, and further
requires EPA to promulgate FIPs if a
state fails to meet its obligations. 42
U.S.C. 7492(3)(2), Section 7410(c)(1);
see also WildEarth Guardians v.
Jackson, No. 11–CV–00001–CMA–MEH,
2011 WL 4485964 at *6 (D. Colo. Separt
27, 2011) (finding EPA’s duty to either
approve a state regional haze SIP or
promulgate a FIP is nondiscretionary).
Because this action does not have
federal implications, does not impose
direct compliance costs on local
governments, and is required by statute,
Executive Order 13132 does not apply
to this action.
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Comment: EPA did not properly vet
its proposed FIP against a number of
requirements detailed throughout
Presidential Executive Orders and
within the CAA. Though Presidential
Executive Orders are not binding by
law, they foster an open, transparent
rule-making process. For example,
Executive Order 12866 states, ‘‘The
American people deserve a regulatory
system that works for them, not against
them: a regulatory system that . . .
improves the performance of the
economy without imposing
unacceptable or unreasonable costs on
society.’’ Accordingly, the Order
requires federal agencies, including
EPA, to develop regulations ‘‘in the
most cost effective manner’’ and to
‘‘adopt a regulation only upon a
reasoned determination that the benefits
of the intended regulation justify its
costs.’’ An additional $1.2 billion in
costs under EPA’s proposal in exchange
for no perceptible change in visibility
does not qualify as ‘‘a reasoned
determination that the benefits of the
intended regulation justify its costs.’’
EPA’s proposed action will result in
over $170 million annual adverse
economic impact, well over the $100
million annual threshold identified in
Executive Order 12866. EPA failed to
properly consider material effects its
proposed action will have on the
economy, productivity, competition,
and jobs. By forcing unnecessarily
expensive technologies, electricity rates
will rise even further, putting additional
strain on businesses and millions of
customers that receive electricity from
the generating stations in Wyoming.
Response: EPA disagrees with this
comment. As explained elsewhere, this
action does not fit within the definition
of Executive Order 12866. The Order
defines a ‘‘regulation’’ or ‘‘rule’’ as an
‘‘agency statement of general
applicability.’’ Executive Order
12866(3)(d). Here, EPA’s action was
individually tailored for a limited
number of BART eligible sources in
Wyoming, and thus is not generally
applicable and not governed by Order
12866. Moreover, as explained in more
detail in the BART section, EPA took
the cost of compliance into
consideration when making its BART
determinations to ensure the rule’s
requirements are beneficial and not
unduly burdensome.
11. Consideration of Existing Controls
Comment: Several commenters
asserted that EPA did not properly take
into account the existing pollution
control technology in use at the BARTeligible EGUs, as required by CAA
section 169A(g)(2) and the BART
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Guidelines. These commenters alleged
that EPA was required to consider
updated combustion controls, which
were installed to comply with
Wyoming’s regional haze SIP, by
adjusting the baseline emissions rate for
each facility to account for any
emissions reductions that have been
achieved since the 2001–2003 baseline
period. The commenters suggested that
had EPA relied on available 2011–2012
emissions data, which reflect the NOX
reductions achieved by some of these
newly installed controls, the costeffectiveness values for SNCR and SCR
would have been higher, while the
visibility improvement associated with
SNCR and SCR would have been lower.
For example, one commenter stated
that the baseline emission rate for NOX
in 2001–2003 was 0.27 lbs/MMBtu at
Laramie River, but that the emission rate
had dropped to 0.19 lb/MMBtu after the
installation of over-fire air and low NOX
burners. This commenter asserted that,
had EPA adjusted the baseline to the
latter emission rate, the average costeffectiveness for SNCR would be
between $6,967/ton and $7,014/ton,
while the average cost-effectiveness for
SCR would be between $8,531/ton and
$9,048/ton. Based on these values, the
commenter argued that neither SNCR
nor SCR is cost-effective and therefore
both technologies should be eliminated
as NOX BART for Laramie River.
Another commenter pointed to other
EPA regional haze actions where EPA
adjusted baseline emissions to account
for recently installed controls, such as
EPA’s final actions on the Arizona
regional haze SIP, 77 FR 72512, and
Montana regional haze FIP, 77 FR
57864. This commenter argued that
because EPA had adjusted baseline
emissions for some Arizona and
Montana EGUs to account for controls
recently installed to satisfy consent
decrees obligations or CAA
requirements unrelated to regional haze,
EPA was required to do so for
Wyoming’s EGUs as well.
One commenter submitted additional
comments, after the close of the public
comment period, in response to the
decision of the U.S. Court of Appeals for
the Eighth Circuit in North Dakota v.
EPA, 730 F.3d 750 (8th Cir. 2013). This
commenter again asserted that EPA had
failed to consider the low NOX burners
and over-fire air the commenter had
installed at its facilities to comply with
the Wyoming regional haze SIP. The
commenter argued that EPA’s alleged
failure to consider these controls
violates the holding in North Dakota,
that ‘‘any existing pollution control
technology’’ includes all existing
controls, including those that are
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voluntarily installed by the source.
Moreover, the commenter explained, the
low NOX burners and over-fire air at its
facilities were not voluntary controls
because they were installed to meet
CAA requirements, were federally
enforceable, and were incorporated into
the Wyoming regional haze SIP.
A final commenter also submitted late
comments in response to the decision in
North Dakota and the previous
commenter’s letter. This commenter
argued that the North Dakota decision
does not require EPA to account for
existing controls by factoring their
associated emissions reductions into
baseline emissions. The commenter
explained that using a consistent
baseline prevents certain sources from
claiming credit for minor emission
reduction measures taken in the midst
of the ongoing regional haze planning
process, thereby making more stringent
controls appear less beneficial. The
commenter also explained that the fixed
baseline period of 2001–2003 allows
EPA to make ‘‘apples-to-apples’’
comparisons of the cost-effectiveness
and visibility benefits of evaluated
technologies across all BART sources.
The commenter pointed out that EPA’s
method of evaluating combustion
controls as a BART option, not as part
of the emission baseline, was identical
to the approach that Wyoming and the
sources themselves had taken in their
own BART analyses. The commenter
argued that this approach is correct
because it ensures that the emissions
reductions associated with existing
controls installed after the baseline
period are evaluated in the BART
analysis. It also factors the cost of such
controls into the source’s compliance
costs, rather than assuming that such
costs are zero simply because they
already have been incurred. Finally, the
commenter asserted that even if EPA
were to adjust the baseline emissions for
the EGUs in question, SCR would still
be BART for all of the EGUs.
Response: One of the statutory factors
EPA is to consider is ‘‘any existing
pollution control technology in use at
the source.’’ 42 U.S.C. 7491(g)(2). The
CAA does not specify how states or EPA
must ‘‘take into consideration’’ this
factor. The BART Guidelines provide
little additional guidance, stating only
that ‘‘[f]or emission units subject to a
BART review, there will often be control
measures or devices already in place.
For such emission units, it is important
to include control options that involve
improvements to existing controls and
not to limit the control options only to
those measures that involve a complete
replacement of control devices.’’ 40 CFR
part 51, app. Y, at IV.D.1.6.
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Consequently, we believe that states and
EPA have considerable discretion in
how they consider existing controls in
use at a source, so long as that
consideration is explained and
reasonable. Ultimately, states or EPA
should consider the totality of the
circumstances (e.g., the purpose of any
existing controls, when and why they
were installed, compatibility with other
control options, enforceability, and
other pertinent factors) in determining
how they will evaluate existing controls
in a BART analysis.
For example, one way in which a state
or EPA can consider existing controls,
as contemplated by the BART
Guidelines, is by evaluating whether
additional control options are
technologically compatible with a
source’s existing controls, or whether
the presence of the existing controls
would render the installation of some
additional control options infeasible. In
the case of NOX, the presence of existing
combustion controls at a source, such as
low NOX burners or over-fire air, does
not impact the feasibility of installing
post-combustion controls, such as SNCR
or SCR. Consequently, EPA reasonably
determined in this instance that the
presence of existing combustion
controls at several of the BART-eligible
EGUs would not preclude the
installation of either SNCR or SCR.
Pointing to our regional haze actions
in Arizona and Montana, several of the
commenters asserted that EPA was
required to consider existing controls by
adjusting the baseline emissions of
several sources to account for
reductions achieved after the baseline
period. We disagree. The BART
Guidelines recommend that baseline
emissions should be ‘‘based upon actual
emissions from a baseline period.’’ 40
CFR part 51, app. Y, at IV.D.4.d.1. While
the BART Guidelines allow states or
EPA to adjust baseline emissions to take
into account projections of ‘‘future
operating parameters’’ by making such
assumptions into enforceable limits, id.
at IV.D.4.d.2, the BART Guidelines are
silent as to how reductions resulting
from the post-baseline installation of
controls should be treated. One way to
take account of such reductions is to
update the baseline, as we did in our
regional haze actions for Arizona and
Montana. In those rulemakings, we
determined that updating the baseline
was appropriate because several sources
had recently installed combustion
controls to comply with consent-decree
obligations and acid-rain requirements,
while another source had changed its
coal supply. The fact that these controls
were installed to comply with other
CAA requirements heavily informed
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EPA’s decision to update the sources’
baseline emissions. As we explained in
our Arizona action, however, ‘‘an
‘updated baseline’ might not be
appropriate in all instances. For
instance, if it appeared that controls had
been installed early in order to avoid a
more stringent BART determination, it
would presumably not be appropriate to
use a baseline representing these new
controls.’’ 72 FR 72526.
We believe that this is one such
instance. First, unlike in Arizona and
Montana, the sources did not install the
combustion controls in question to
comply with other CAA requirements.
Rather, as stated above in the comment,
the sources installed the controls to
comply with Wyoming’s selection of
BART in its regional haze SIP. This
distinction is important because, by
their very nature, baseline emissions
should be ‘‘a realistic depiction of
anticipated annual emissions’’ before
the installation of BART. 40 CFR part
51, app. Y, at IV.D.4.d. Thus, while
baseline emissions can take into account
newly installed controls and in some
cases future operating parameters,
baseline emissions still must represent a
pre-BART scenario so that the costeffectiveness and visibility benefits of
all potential BART control options can
be evaluated from a consistent
benchmark. Indeed, it would be passing
strange for EPA to update the
commenters’ baseline emissions to
incorporate emission reductions that
they admittedly achieved to comply
with BART. Doing so would bias EPA’s
analysis of additional control options by
giving the commenters credit for
emissions reductions attributable to
BART, but treating the costs they
incurred to achieve those reductions as
if they had never occurred.
Second, we note that the Wyoming
regional haze SIP did not require
compliance with BART until five years
after EPA’s approval of the SIP. At the
time the sources installed the
combustion controls, EPA had not yet
acted upon Wyoming’s regional haze
SIP, and the sources had no way of
knowing whether EPA would ultimately
approve or disapprove Wyoming’s
BART determinations. Thus, it appears
that the sources’ decision to install the
combustion controls early may have
been motivated by an intent to avoid the
possibility of a more stringent BART
determination by EPA under the theory
now advanced in the comment. To be
consistent with our statements in the
Arizona regional haze action, we believe
that it would have been inappropriate
for EPA to have ‘‘taken into
consideration’’ the newly installed
combustion controls at the commenters’
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facilities by updating the baseline in
this case.
Nonetheless, EPA recognizes that we
must ‘‘take into consideration’’ all
existing controls to comply with the
CAA, and have therefore taken the
sources’ existing combustion controls
into consideration in other ways. For
example, in addition to considering
whether the source’s existing
combustion controls were compatible
with the installation of post-combustion
controls, we also used the source’s
current NOX emission rates when we
evaluated the size, design, and reagent/
catalyst cost of SNCR and SCR. For
example, in the case of Laramie River,
we did not use the baseline emission
rate of 0.27 lbs/MMBtu, but rather the
current emission rate of 0.19 lb/MMBtu
that appropriately reflects the
installation of over-fire air and low NOX
burners. Due to the lower NOX emission
rate, the size of the SNCR and SCR
systems and the amount of reagent/
catalyst necessary to operate them are
lower than if we had simply assumed
the baseline emission rate.
Moreover, we do not believe that our
action is inconsistent with the Eighth
Circuit’s decision in North Dakota. In
our regional haze action for North
Dakota, we refused to consider the
DryFiningTM control technology in use
at Coal Creek Station when we
promulgated a FIP. We argued to the
court that the CAA did not require states
or EPA to consider controls that were
voluntarily installed after the baseline
period. The court rejected this position,
holding that ‘‘EPA’s refusal to consider
the existing pollution control
technology in use at the Coal Creek
Station because it had been voluntarily
installed was arbitrary and capricious.’’
North Dakota, 2013 U.S. App. LEXIS
19442, at*30. The court explained that
‘‘any existing pollution control
technology’’ included even voluntarily
installed controls. However, the court
did not opine as to how existing controls
must be considered. Here, EPA
reasonably considered the existing
controls at the BART-eligible sources in
the several ways described above. North
Dakota does not require us to ‘‘take into
consideration’’ existing controls by
adjusting baseline emissions, which
would have been inappropriate in this
instance.
Finally, while we acknowledge the
supportive comments from the final
commenter on this issue and agree with
many of the points that were made, we
decline to require SCR at all of the
BART-eligible EGUs, for reasons
explained elsewhere in this document.
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12. Consent Decree
Comment: As it had on other SIPs,
EPA neglected to act on Wyoming’s SIP,
and as a result exposed itself to liability
for violating Section 110(k) of the CAA.
See 42 U.S.C. 7410(k)(2), (3) (setting
deadlines for EPA action on SIPs).
Wyoming could have sued EPA for
failing to take action on Wyoming’s SIP,
but in the spirit of cooperation, elected
not to. Instead, special interest groups
sued EPA for its failure to comply with
the Act. See Compl., WildEarth
Guardians v. Jackson, No. 1:11-cv00001–CMA–MEH (D. Colo. Jan. 2,
2011). Wyoming did not participate in
this litigation for two reasons: First,
Wyoming was not aware of the litigation
until EPA published the proposed
consent decree, 76 FR 34983 (June 15,
2011); and, second, EPA has repeatedly
opposed state attempts to participate in
litigation that impacts the processing of
SIPs, see, e.g., Def. Opp. to North
Dakota’s Motion to Intervene, WildEarth
Guardians v. Jackson, No.4:09–CV–
02453–CW (N.D. Cal. Oct. 20, 2011).
The special interest groups’ litigation,
in turn, has driven EPA’s approach to
Wyoming’s SIP. The litigation has
established arbitrary deadlines for EPA
to act on Wyoming’s SIP, which EPA
and the special interest groups have
repeatedly extended for their
convenience. Not once has EPA
consulted the State on these deadlines.
More troubling, through settlement of
that litigation, EPA has committed to
particular courses of action on
Wyoming’s SIP. EPA has cut Wyoming
out of the cooperative federalism
Congress intended to guide the regional
haze program.
This dubious approach to
implementing the CAA harms states.
The unprecedented influence the
special interest groups have exerted
over EPA’s treatment of Wyoming’s SIP,
coupled with EPA’s effort to conceal its
communications with those groups, lead
a reasonable observer to seriously
question the objectivity of EPA’s
proposed action on Wyoming’s SIP.
The commenter also asserted that the
EPA let sue-and-settle tactics pervert
what is typically a cooperative process.
Nongovernmental groups should not be
allowed to coerce an agency into setting
policy as a result of litigation. Wyoming
considers this an attack on states’ rights,
which does nothing to further the
partnership between EPA and
Wyoming, especially when Wyoming
can’t participate in those discussions.
Response: We disagree with
commenter’s assertions. The Act
provides citizens with the right to sue
EPA when EPA fails to meet a statutory
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deadline, 42 U.S.C. 7604(a)(2), and
courts have the authority to establish a
remedy that sets new deadlines and
compels EPA to do what Congress
required. Id. Section 7604(a). When EPA
is confronted with such suits, it is
reasonable and proper for EPA, working
with the Department of Justice, to
decide that it is in the public interest,
and a more efficient use of executive
and judicial branch resources, to settle
such cases rather than litigate them.
Congress recognized that EPA has
authority to settle cases, and directed
EPA to provide public notice and an
opportunity to comment on proposed
consent decrees before finalizing them.
Id. Section 7413(g).
As explained in the Introduction
section of this document, the consent
decree of which the commenter
complains was the result of a citizen
suit that sought to compel EPA to
approve SIPs or promulgate FIPs to meet
long overdue regional haze
requirements.72 The State of Wyoming
did not submit its regional haze
implementation plan in a timely fashion
as required by the CAA and EPA’s
regulations. Facing substantial legal
risk, EPA reasonably negotiated a
settlement resulting in a consent decree
that set new deadlines for EPA to take
actions required by the Act.73 The
Consent Decree was published in the
Federal Register as is required under
the CAA section 113(g) and provided 30
days for public comment. See 76 FR
34983 (June 6, 2011). For Wyoming,
EPA’s obligations to fully approve SIPs
or promulgate a FIP were now due six
years after the original 2007 deadline for
the submission of regional haze SIPs.
The consent decree was also subject to
district court review before its entry.
Neither the commenters nor any other
party objected to the deadlines
established for EPA’s action on the
Wyoming regional haze SIP. The United
States District Court for Colorado found
the terms of the consent decree
reasonable.
The commenter’s argument that EPA
used these consent decree deadlines and
‘‘has committed to particular courses of
action on Wyoming’s SIP’’ with regard
to the Final Rule is without merit. The
consent decree did not limit or change
72 January 2, 2011 a Complaint was filed against
EPA in the federal district court for the District of
Colorado seeking declaratory and injunctive relief
under the Clean Air Act due to EPA’s failure to
meet regulatory and statutory deadlines for the
regional haze implementation plan. See WildEarth
Guardians v. Jackson, Case No. 11–cv–0001–CMA–
MEH (D. Colo.).
73 The EPA resolved this complaint by means of
a settlement agreement that was memorialized in a
Consent Decree that was entered by the Court on
June 6, 2011 (the ‘‘Consent Decree’’).
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EPA’s substantive rulemaking authority
or discretion in any way. Rather, the
consent decree specifically permitted
EPA to satisfy its obligations either by
approving the States’ regional haze SIPs
or by promulgating a FIP. EPA also
provided more than 70 days from the
date of publication in the Federal
Register for interested parties to submit
comments on the proposed rule, longer
than the 30-day public comment period
required by the Act. 42 U.S.C. 7607(h).
EPA obtained several extensions of the
consent decree deadline for Wyoming to
provide the Agency with adequate time
to conduct the rulemaking.74 For all
these reasons, neither the consent
decree nor the deadlines it imposed
rendered EPA’s Final Rule arbitrary,
capricious, or contrary to law.
Finally, EPA did not rely on
information that was not in the docket
for this rule. Therefore, contrary to
commenter’s assertions, all information
relied upon has been disclosed.
Comment: EPA quickly entered into a
settlement agreement to resolve the
special interest groups’ litigation, rather
than defend its actions and honor
Wyoming’s patience with EPA’s
inaction. In settling the litigation, EPA
agreed to take final action on
Wyoming’s SIP by April 15, 2012.
Consent Decree, WildEarth Guardians v.
Jackson, No. 1: 11–cv–00001–CMA–
MEH, at 4, ’1]6 (D. Colo. Separt 27,
2011) (WildEarth Guardians).
Recognizing that it still could not meet
its statutory obligation to act on
Wyoming’s SIP, EPA persuaded the
special interest groups to extend that
deadline thirty days to May 15, 2012.
Stip. to Extend Four Deadlines in
Consent Decree at 3, ∼ 6, WildEarth
Guardians, (D. Colo. Jan. 10, 2012).
On June 2, 2012, eighteen months
after Wyoming submitted its SIP, EPA
proposed to partially approve and
partially disapprove the SIP. 77 FR
33022. But, as a result of EPA’s
unlawfully delayed action, Wyoming’s
SIP became complete by operation of
law. See 42 U.S.C. 7410(k)(l)(B).
Accordingly, EPA cannot now propose
to disapprove Wyoming’s SIP on the
grounds that it lacks information. To do
otherwise is to render Section
110(k)(l)(B) meaningless.
Response: EPA disagrees with this
comment. First, the commenter offers no
74 EPA routinely notifies the states of these
extensions. For example, on December 11, 2012,
Region 8 Air Program Director Carl Daly called
Wyoming DEQ’s Steve Dietrich and his staff, to let
them know the Agency had submitted a motion to
the Court to re-propose the 309(g) rule. Mr. Daly
also contacted Mr. Dietrich on March 26, 2013 to
let the State know EPA was working on further
extensions, as the Agency needed additional time
to consult with our headquarters offices.
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grounds on which EPA could have
defended the cited litigation, which
involved mandatory statutory deadlines
under the Act.
Second, EPA disagrees with the
commenter’s interpretation of CAA
section 110(k)(l)(B). Under the CAA,
EPA’s SIP review is a two-step process.
See CAA Section 110(k). First, within
six months of a SIP submission, EPA
must make a threshold ‘‘completeness
determination’’ to determine whether
the SIP contains certain ‘‘minimum
criteria’’ designated by EPA as ‘‘the
information necessary to . . . determine
whether the plan submission complies
with the provisions of [the CAA].’’ See
id. Section 110(k)(1)(A), (B). These
minimum criteria are listed in
Appendix V to 40 CFR. Part 51 and
include a relatively short list of eight
‘‘Administrative Materials’’ and nine
‘‘Technical Support’’ requirements,
such as evidence that the state properly
adopted the SIP and technical
demonstrations that allow EPA to
evaluate compliance with the
substantive requirements of the CAA.
See 40 CFR. part 51, App. V. If EPA fails
to make the completeness determination
within six months, the SIP is deemed
complete by operation of law. See CAA
Section 110(k)(1)(C).
Importantly, however, a
determination of completeness, either
by EPA or by operation of law, does not
mean that the SIP has been approved as
compliant with the substantive
requirements of the CAA. Indeed,
Appendix V does not include any
substantive requirements, such as the
requirement that regional haze SIPs
include a five-factor BART analysis.
These requirements are included
elsewhere in the CAA, the Haze Rule,
and the BART Guidelines.
Instead, EPA evaluates SIPs for
compliance with the substantive
requirements in the second step of
EPA’s review, which EPA must
complete within one year after the SIP
is determined to be complete by EPA or
deemed complete by operation of law.
See CAA Section 110(k)(2), (3), & (l)
(providing a one-year deadline by which
EPA must determine whether the SIP
‘‘meets all of the applicable
requirements’’ or ‘‘interferes with any
applicable requirement’’ of the Act); see
also NRDC v. Browner, 57 F.3d 1122,
1126 (D.C. Cir. 1995) (‘‘Under the twostage procedure established in [section]
110(k), EPA first makes an essentially
ministerial finding of completeness, a
process taking at most six months. By
contrast, the plan approval process may
take up to twelve months due to the
more extensive technical analyses
necessary to ensure that the SIP meets
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the Act’s substantive requirements.’’
(emphasis added)). Accordingly, a
completeness determination in Step 1
does not deprive EPA of authority to
disapprove a SIP in Step 2 for failure to
comply with substantive requirements
of the CAA, the Haze Rule, and the
BART Guidelines. Instead, a
completeness determination merely
triggers EPA’s duty to evaluate the
substance of a SIP in the first instance
and either approve or disapprove the
SIP as necessary within one year. As
explained above, EPA has authority to
substantively review states’ five-factor
BART analyses in Step 2, and must
disapprove a SIP if its analysis fails to
comply with the requirements of the
CAA, the Haze Rule, or the BART
Guidelines. See Oklahoma, 723 F.3d at
1207–10. Thus, the comment is
incorrect in stating that EPA’s action
here renders section 110(k)(1)(B)
meaningless.
Moreover, courts have repeatedly
stated that EPA does not lose its
statutory authority to act under the CAA
for a failure to meet its statutory
deadline and that the proper remedy in
the case of delay is for a party to seek
an order to compel action. Oklahoma v.
EPA., 723 F.3d 1201, 1224 (10th Cir.
2013) (explaining that although the CAA
‘‘undoubtedly requires that the EPA
promulgate a FIP within two years, it
does not stand to reason that it loses its
ability to do so after this two-year
period expires’’); Montana Sulphur &
Chem. Co. v. EPA., 666 F.3d 1174, 1190
(9th Cir. 2012) cert. denied, 133 S. Ct.
409, (2012) (explaining that although
CAA has an ‘‘explicit deadline . . . it
does not follow that the agency loses
authority to act if it fails to meet that
deadline’’); Gen. Motors Corp. v. United
States, 496 U.S. 530, 541 (1990)
(holding EPA does not lose authority
under CAA because ‘‘other statutory
remedies are available when EPA delays
action on a SIP revision’’); see also
Brock v. Pierce Cnty., 476 U.S. 253, 260
(1986) (holding that when ‘‘there are
less drastic remedies available for
failure to meet a statutory deadline . . .
courts should not assume that Congress
intended the agency to lose its power to
act’’).
Comment: Two months after the
period for commenting on EPA’s 2012
proposal closed, EPA and the special
interest groups again modified the
consent decree to allow EPA additional
time to take action on Wyoming’s SIP.
See Stip. To Extend Deadline in Consent
Decree., WildEarth Guardians (D. Colo.
Oct. 3, 2012). Then, two months after
extending the deadline for action on
Wyoming’s SIP, EPA asked the court to
again extend EPA’s deadline, this time
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until September 27, 2013. Def.
Unopposed Mot. To Modify Two
Deadlines in Consent Decree, at 1,
WildEarth Guardians (Dec. 10, 2012).
As grounds for the request, EPA cited
the special interest groups’ comments,
which EPA asserted ‘‘necessitate[d] reproposal of the rule.’’ Id. at 3–4. The
court, in turn, granted EPA’s request.
Order To Modify Consent Decree,
WildEarth Guardians (Dec. 13, 2012).
Even after extending its deadline to take
action on Wyoming’s SIP three times,
EPA still needed more time. So, on
March 25, 2013, EPA and the special
interest groups again agreed to extend
EPA’s deadline for action on Wyoming’s
SIP. Stip. To Extend Deadlines in
Consent Decree, WildEarth Guardians
(March 25, 2013) (extending deadline
until Nov. 21, 2013). Seemingly as a
condition for obtaining the special
interests groups’ consent to the
extension, EPA ostensibly agreed to a
timetable for Wyoming sources to install
emission controls faster than what
Wyoming proposed. Compare id. at 2,
∼ 6 (‘‘EPA will propose to determine, for
each source subject to BART, the period
of time for BART compliance that is as
expeditious as practicable’’), with 78 FR
34778 (‘‘We propose that PacifiCorp
meet our proposed emission limit . . .
as expeditiously as practicable, but no
later than five years after EPA finalizes
action’’). Had Wyoming known when
EPA proposed the consent decree in
2011 that EPA would commit to a
particular course action on Wyoming’s
SIP, rather than just a date for taking
some unspecified action, Wyoming
would have sought to intervene in the
litigation.
Response: EPA disagrees that it
committed to any particular course of
action in the Consent Decree. The
Consent Decree only specified a
timetable for EPA to promulgate rules
consistent with its statutory obligations
under the CAA, but did not commit the
EPA to any particular course of action
not already required by law. In fact, the
Consent Decree specifically states:
‘‘Nothing in this Consent Decree shall
be construed to limit or modify any
discretion accorded EPA by the CAA or
by general principles of administrative
law in taking the actions which are the
subject of this Consent Decree,
including the discretion to alter, amend,
or revise any final actions contemplated
by this Consent Decree.’’
We disagree with the commenter’s
allegations that EPA agreed in the
Consent Decree to a timetable for
Wyoming sources to install BART
controls faster than what Wyoming
proposed in its SIP. Paragraph 6 of the
Stipulation To Extend Deadlines in
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5107
Consent Decree, WildEarth Guardians
(March 25, 2013) specifies that:
By May 23, 2013, EPA shall sign a notice
of re-proposed rulemaking in which it
proposes approval of a SIP, promulgation of
a FIP, partial approval of a SIP and
promulgation of a partial FIP, or approval of
a SIP or promulgation of a FIP in the
alternative, for the State of Wyoming, to meet
the regional haze implementation plan
requirements that were due by December 17,
2007, under 40 CFR 51.309(g). In its reproposal, EPA will propose to determine, for
each source subject to BART, the period of
time for BART compliance that is as
expeditious as practicable, as required by 42
U.S.C. Section 7491. (emphasis added).
Commenter neglects to include the
last phrase in this provision in its
comment—‘‘as required by 42 U.S.C.
Section 7491.’’ The Consent Decree
required EPA to meet that CAA
requirement.75 Therefore, the Consent
Decree mirrors and is consistent with
the CAA BART requirements.
Finally, we are acting consistently
with the Act and the RHR, as we discuss
in detail elsewhere throughout this final
action.
13. Monitoring, Recordkeeping and
Reporting
Comment: EPA proposed a FIP for all
monitoring, recordkeeping, and
reporting requirements related to BART
and reasonable progress sources for
which there is a SIP or FIP emissions
limit. EPA notes that the State’s
monitoring, recordkeeping, and
reporting language in their SIP includes
references to WAQSR chapters that EPA
has not approved as part of the SIP and
erroneously concludes that this means
Wyoming’s requirements are not
federally enforceable.
Wyoming does not concur with EPA’s
findings. The monitoring, recordkeeping
and reporting language in the State’s
regional haze SIP is taken directly from
air quality permits issued under the SIPapproved permitting provisions in
Chapter 6, Section 2 of the WAQSR, and
are therefore federally enforceable. See
40 CFR 52.2620(c)(1). When drafting the
monitoring, recordkeeping, and
reporting requirements, the State
incorporated the requirements of 40
CFR part 60 for trona facilities and for
EGUs. Specifically, 40 CFR part 60
subparts D and Da were incorporated
into the monitoring conditions for each
75 Additionally, the CAA defines the term ‘‘as
expeditiously as practicable’’ to mean ‘‘as
expeditiously as practicable but in no event later
than five years after the date of approval of a plan
revision under this section (or the date of
promulgation of such a plan revision in the case of
action by the Administrator under section 110(c)
[42 USCS Section 7410(c)] for purposes of this
section).’’ 42 U.S.C. 7491(g)(4).
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BART permit. In the case of EGUs, by
relying upon subpart D and Da, the State
is also incorporating the requirements of
40 CFR part 75, since the monitoring
provisions of subpart Da refer back to
the continuous emissions monitor
requirements under the Acid Rain
Program codified in 40 CFR part 75.
While Wyoming allows for data
substitution using the methodology
prescribed in 40 CFR part 75, this is
only applicable to annual emissions to
account for periods when the
continuous emissions monitor is down
and the emissions unit continues to
operate. Substituting data for these
operating periods is more conservative
than removing them altogether. EPA
asserts that there are numerous
clarifications and rewording needed;
however, these monitoring,
recordkeeping, and reporting
requirements are currently in effect for
PacifiCorp and Basin Electric units, and
the companies are able to demonstrate
compliance using them. Furthermore,
the recordkeeping and reporting
requirements contained in Chapter 5,
Section 2 of the WAQSR are modeled
after 40 CFR part 60, as these provisions
are delegated to the State by EPA. See
40 CFR 60.4(c). While WAQSR Chapter
5, Section 2 is not part of Wyoming’s
SIP, the requirements therein are
analogous to the federal New Source
Performance Standards requirements
and are made federally enforceable
through incorporation by a Chapter 6,
Section 2 BART permit and EPA’s
delegation to Wyoming.
Since these monitoring,
recordkeeping, and reporting
requirements are contained in federally
enforceable permits and the affected
companies are already able to
demonstrate compliance with the BART
emissions limits using them, Wyoming
concludes that it did include
appropriate and adequate monitoring,
recordkeeping, and reporting
requirements in the SIP.
Response: EPA disagrees with this
comment. As discussed above in this
section, EPA’s approach in this action is
entirely consistent with section
169A(b)(2) which, as we wrote when we
promulgated the BART Guidelines,
‘‘provides that EPA must require SIPs to
contain emission limits, schedules of
compliance, and other measures as may
be necessary to make reasonable
progress towards meeting the goal’’
(emphasis added). 70 FR 39120. The
regulations require that the states ‘‘must
submit an implementation plan
containing emission limitations
representing BART.’’ 40 CPR 51.308(e).
The Guidelines require that states ‘‘must
establish an enforceable emission limit
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for each subject emission unit at the
source and for each pollutant subject to
review that is emitted from the source.’’
70 FR 39172. CAA section 110(a)(2)(A)
also requires that SIPs shall ‘‘include
enforceable emission limitations . . . as
may be necessary or appropriate to meet
the applicable requirements of [the
Act].’’
Therefore, EPA disagrees that the use
of BART permits to implement the
monitoring, recordkeeping, and
reporting necessary to ensure
compliance with BART emission
limitations is adequate under the CAA.
In addition, in response to another
comment, we are removing the
requirements for annual emission limits
for BART and reasonable progress
sources. (See section IV.C.3 of this
rulemaking). Thus, the point raised by
the commenter pertaining to data
substitution no longer applies to our
final action.
B. Modeling
1. General Comments
Comment: One commenter stated that
EPA must re-evaluate its method for
assessing visibility impacts from
wildfires or states will never be able to
achieve natural background goals. The
commenter went on to say that EPA
should (1) eliminate the impacts from
fire from the annual contribution to the
deciview analysis or (2) properly
incorporate it into the natural
background equation to establish a glide
path states can achieve. The commenter
provided graphical data from the
Interagency Monitoring of Protected
Visual Environments (IMPROVE)
network to show the contributions to
light extinction from organic carbon,
elemental carbon, and nitrate.
Response: EPA disagrees that we must
re-evaluate our methods in this action.
However, EPA agrees that wildfires can
be an important source of visibility
impairment, especially in the western
states during the summer wildfire
season. EPA recognized that variability
in natural sources of visibility
impairment causes variability in natural
haze levels as described in its
‘‘Guidance for Estimating Natural
Visibility Conditions Under the
Regional Haze Rule.’’ 76 The preamble to
76 Guidance for Estimating Natural Visibility
Conditions Under the Regional Haze Rule,
Document No. EPA–R09–OAR–2012–0345–0003–
B9, U.S. Environmental Protection Agency,
September 2003. http://www.epa.gov/ttncaaa1/t1/
memoranda/rh_envcurhr_gd.pdf, page 1–1:
‘‘Natural visibility conditions represent the longterm degree of visibility that is estimated to exist
in a given mandatory Federal Class I area in the
absence of human-caused impairment. It is
recognized that natural visibility conditions are not
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the BART guidelines (70 FR 39124)
describes an approach used to measure
progress toward natural visibility in
Mandatory Class I areas that includes a
URP toward natural conditions for the
20 percent worst days and no
degradation of visibility on the 20
percent best days. The use of the 20
percent worst natural conditions days in
the calculation of the URP takes into
consideration visibility impairment
from wild fires, windblown dust and
other natural sources of haze. The
‘‘Guidance for Estimating Natural
Visibility’’ also discusses the use of the
20 percent best days and the 20 percent
worst days estimates of natural
visibility, provides for revisions to these
estimates as better data becomes
available, and discusses possible
approaches for refining natural
conditions estimates.77 The commenter
does not identify any way in which
EPA’s action was inconsistent with this
guidance or the RHR.
Comment: At the hearing, Governor
Mead and representatives of Wyoming,
as well as industry representatives,
argued that worsening haze has been
caused by wildfires.
Response: We acknowledge the
commenter’s points on wildfires,78 and
that they can be an important source of
visibility impairment, especially in the
western states during the summer
wildfire season. As discussed in more
detail above and in our proposed notice,
EPA recognizes that variability in
natural sources of visibility impairment
cause variability in natural haze levels
and provided approaches to address this
in the preamble to the BART guidelines
(70 FR 39124). However, while we
acknowledge that wildfires contribute to
regional haze, the BART CALPUFF
constant, but rather they vary with changing natural
processes (e.g., windblown dust, fire, volcanic
activity, biogenic emissions). Specific natural
events can lead to high short-term concentrations of
particulate matter and its precursors. However, for
the purpose of this guidance and implementation of
the regional haze program, natural visibility
conditions represents a long-term average condition
analogous to the 5-year average best- and worst-day
conditions that are tracked under the regional haze
program.’’
77 Ibid., pages 3–1 to 3–4.
78 78 FR at 34767 (‘‘Table 28 also shows that
Wyoming is not meeting the URP to meet natural
visibility conditions by 2064. In this case, 40 CFR
51.308(d)(1)(ii) requires the State to demonstrate,
based on the four factors in 51.308(d)(1)(i)(A), that
the RPGs established in this SIP are reasonable for
this planning period and that achieving the URP in
this planning period is not reasonable. In its
demonstration, the State cited many reasons why
meeting the URP was not reasonable, including the
following. First, emissions from natural sources
greatly affect the State’s ability to meet the 2018
URP. As discussed earlier, WEP data shows that
emissions of OC, EC, PM2.5, and PM10 come mainly
from natural or non-anthropogenic sources, such as
natural wildfire and windblown dust.’’)
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modeling has demonstrated that
Wyoming’s BART sources are also
significant contributors to regional haze.
Comment: Although the various
BART application analyses conducted
by Wyoming for PacifiCorp’s BART
units note that Wyoming conducted a
‘‘comprehensive visibility analysis
covering all three visibility impairing
pollutants,’’ the analyses also state:
‘‘While visibility impacts were
addressed in a cumulative analysis of all
three pollutants, Post-Control Scenario
B is directly comparable to Post-Control
Scenario A as the only difference is
directly attributable to the installation of
SCR. Subtracting the modeled values
from each other yield the incremental
visibility improvement from SCR.’’ In
other words, Wyoming clearly
considered—and made available to
EPA—the very specific NOX information
that EPA claims it ‘‘was not possible for
EPA, or any other party, to ascertain.’’
Simply claiming it ‘‘was not possible for
EPA’’ to ascertain results from available
information does not justify EPA in
rejecting Wyoming’s NOX BART
determinations. Wyoming had
considered SCR-specific visibility
information. EPA cannot use the alleged
lack of this information to justify
requiring SCR as BART.
Response: We disagree with all
aspects of this comment. Although a
state is not required by EPA’s
regulations to model the visibility
impacts from all possible control
alternatives if the state selects the most
stringent controls available as BART
that is not what happened here.
Wyoming rejected SNCR and SCR as
BART without adequately assessing the
visibility benefits of these control
strategies. Given the cost effectiveness
of these controls, the State’s failure to
consider visibility impacts was not
reasonable and was inconsistent with
the CAA and regulations. EPA was
compelled to perform additional
CALPUFF modeling for NOX BART
determinations to allow for
consideration of visibility impacts. For
example, while Wyoming took into
consideration the degree of visibility
improvement for other BART NOX
control options for the PacifiCorp EGUs,
such as SCR, the State did not do so for
SNCR. The visibility improvement for
SNCR was neither provided in the
State’s SIP nor made available to the
EPA. Wyoming did not assess the
visibility improvement of SNCR despite
having found it to be a technically
feasible control option, and having
considered a number of the other
statutory factors for SNCR, such as costs
of compliance and energy impacts.
Given that nothing in the State’s
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analysis suggested that SNCR was
inappropriate, Wyoming’s failure to
consider the visibility improvement of
SNCR is clearly in conflict with the
statutory requirements set forth in
section 169A(g)(2) of the CAA, which
require that states take into
consideration ‘‘the degree of
improvement in visibility which may
reasonably be anticipated to result from
the use of such technology.’’ Since
Wyoming did not do so, EPA conducted
additional CALPUFF modeling to fill
this gap in the State’s visibility analysis.
In addition, as stated in our 2012
proposed rule and in our 2013 reproposal, it was not possible for EPA, or
any other party, to ascertain the
visibility improvement from the NOX
control options as emission reductions
for multiple pollutants were modeled
together. That is, since the visibility
improvement for each of the State’s
control scenarios was due to the
combined emission reductions
associated with SO2, NOX, and PM
controls, it was not possible to isolate
what portion of the improvement was
attributable to the NOX controls alone.
For this reason, in the modeling
conducted by EPA, we held SO2 and PM
emission rates constant (reflecting the
‘‘committed controls’’ for those
pollutants identified by Wyoming), and
varied only the NOX emission rate. This
allowed us to isolate the degree of
visibility improvement attributable to
the NOX control option.
We do agree that Wyoming’s analysis
allows for the incremental comparison
between two post-control options (PostControl Scenario A and Post-Control
Scenario B). However, the BART
Guidelines require more than this,
stating that you should ‘‘[a]ssess the
visibility improvement based on the
modeled change in visibility impacts for
the pre-control and post-control
emission scenarios.’’ 79 That is, it is not
sufficient to assess only the incremental
visibility between control options, you
must also assess the visibility
improvement of each control option
relative to the pre-control scenario.
Therefore, Wyoming clearly did not
assess visibility improvement in a
manner consistent with that explicitly
prescribed by the BART Guidelines.
In summary, while States may have
some discretion in how to determine
visibility impacts, Wyoming did not
fulfill the basic statutory requirement to
consider the visibility improvement of
each of the NOX control options they
identified as technically feasible. They
also did not assess visibility
improvement in a manner consistent
79 40
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5109
with the approach prescribed by the
BART Guidelines. As a result, EPA
concluded it would be appropriate to
conduct additional CALPUFF modeling.
Comment: The egregiousness of EPA’s
actions becomes even more apparent
when comparing EPA’s conclusions
regarding cost and visibility impacts for
certain of PacifiCorp’s BART units
against the cost and visibility impact
conclusions reached by Wyoming for
the same units. Table 2 in our comments
provides a comparison between
Wyoming’s modeled delta deciview
improvements and EPA’s delta deciview
improvements based on the ‘‘new
information’’ EPA claims it has
developed. Recognizing EPA’s
conclusion that one deciview is barely
perceptible to the human eye and
considering the inaccuracies and
limitations of the model inputs and
versions of the visibility models being
used, there is no significant difference
between Wyoming’s results and EPA’s
results. Additionally, without any
‘‘bright line’’ test regarding the amount
of visibility improvement that justifies a
given control device, EPA cannot show
that these insignificant differences
would have any impact on the BART
determinations for PacifiCorp’s BART
units.
Response: With respect to the ‘‘bright
line’’ test, EPA’s task in conducting
modeling for developing our FIP is to
conduct modeling in accordance with
the CAA and RHR using our best
scientific and technical judgment. We
then consider the modeling results,
along with the other BART factors, in
making the BART determinations.
While it is permissible to establish a
‘‘bright line,’’ we have not done so.
Furthermore, as we discuss in detail in
section IV of this final notice and
elsewhere in response to comments, we
disagree with commenter’s assertions
that there are no significant differences
between Wyoming’s results and EPA’s
results. We have addressed the issue of
perceptibility elsewhere in our response
to comments.
Comment: We received comments
that by the year 2022, EPA’s plan and
Wyoming’s plan achieve essentially
identical results for visibility, and
therefore, the proposed FIP would have
no net visibility benefit over the SIP.
Response: We disagree. Our proposed
FIP, by merit of requiring more stringent
controls than those proposed in the SIP
for some sources shown to cause or
contribute to visibility impairment,
results in greater visibility benefit.
Although, based on our revised analyses
for visibility impacts and costs of
compliance and considering the five
BART factors, we have revised some of
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our proposed control determinations,
this assessment remains true for today’s
final rule. In particular, our final rule
results in greater visibility improvement
than the SIP for PacifiCorp Dave
Johnston Unit 3 and Wyodak and Basin
Electric Laramie River Units 1–3. The
improvement in visibility stemming
from the FIP, as compared to the SIP,
can easily be discerned by reviewing
relevant control options as found in
Tables 2 through 17 of section III.A of
this action.
Comment: On average, the 2000
baseline level for Class I areas in
Wyoming is 11 deciviews. The 2064
natural background goal is 6 deciviews.
IMPROVE data suggests that there is not
this amount of nitrate improvement to
be obtained. It appears EPA is trying to
achieve a greater reduction for nitrates
than is required at this time to reach the
2064 natural background goal. For
Bridger, the total amount of deciview
reduction for controls (6.08) exceeds the
entire deciview reduction (all
pollutants) from baseline to 2064. The
value (6.08 deciviews) is also 10 fold
higher than Wyoming’s contribution to
nitrate levels (0.62 deciviews—see Table
23 of EPA’s proposed rulemaking) at the
Class I area for the 2000–2004 baseline
year. This value was calculated by
multiplying 6.2% times the Class I
area’s 2000 baseline deciview value of
11.1. The same discussion is valid for
Yellowstone as well, where the modeled
nitrate reductions equal 2.27 deciviews
and Wyoming’s total reduction potential
is only 0.82 deciviews.
Response: EPA disagrees with this
comment. The commenter appears to be
referring to annual mean estimates of
visibility impairment at Class I areas,
and comparing these estimates with the
original CALPUFF modeled visibility
improvements in our 2012 proposal.
The values referred to in Table 23 of
EPA’s proposed rulemaking are mean
estimates for the 20% worst visibility
days. The BART Guidelines recommend
that visibility impairment be evaluated
for the 98th percentile contribution for
each BART source. It is likely that 98th
percentile visibility impacts will differ
significantly from annual mean impacts,
so it is not possible to directly compare
our modeled impacts on the 98th
percentile day to seasonal mean or the
mean of the worst 20% days. However,
we also note that in the revised final
modeling included in this action, the
CALPUFF modeled visibility
improvements are less than the values
cited above by the commenter from the
original proposal, and the commenter’s
comparisons are no longer relevant.
Comment: The measured visibility
impairment at IMPROVE stations offers
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a more certain and reliable
quantification of the actual cause of
visibility impairment than the
CALPUFF model approved by the EPA
for BART visibility assessments.
CALPUFF is an EPA-approved model
for long-range transport, as described in
the EPA’s ‘‘Guideline on Air Quality
Models’’ 40 CFR Part 51 Appendix W,
but only for the modeling of PSD
increments. The treatment of chemical
transformation, which is a crucial aspect
for any model that is used for visibility
assessments, is considered to be
inadequate within CALPUFF. In fact,
the lead modelers at the EPA’s Office of
Air Quality Planning and Standards
have initiated a formal regulatory
process to more fully evaluate (and very
possibly replace) CALPUFF as an EPApreferred model for long-range
transport.
Response: EPA disagrees that the use
of monitoring data from the IMPROVE
network would provide a more accurate
assessment of the predicted degree of
visibility from the use of controls at a
source than does CALPUFF. The
commenter has not explained how
monitoring data could be used to assess
the actual current contributions to
visibility impairment, and in any case,
models are needed to estimate the
potential future visibility impacts from
the use of a range of controls at a
specific source. In recommending the
use of CALPUFF for assessing source
specific visibility impacts, EPA
recognized that the model had certain
limitations but concluded that ‘‘[f]or
purposes of the regional haze rule’s
BART provisions . . . CALPUFF is
sufficiently reliable to inform the
decision-making process.’’ 80 EPA
accordingly appropriately used
CALPUFF in this action. We further
note that the requirements of 40 CFR
51.112 and 40 CFR part 51, Appendix
W, Guideline on Air Quality Models
(GAQM) and the BART Guidelines
which refers to GAQM as the authority
for using CALPUFF, provide the
framework for determining the
appropriate model platforms and
versions and inputs to be used. The use
of CALPUFF is subject to GAQM
requirements in section 3.0(b), 4, and
6.2.1(e) which includes an approved
modeling protocol to use the current 5.8
version.81
In promulgating the BART guidelines,
EPA addressed concerns with
CALPUFF’s treatment of chemical
80 70
FR at 39123.
of the ‘‘VISTAS’’ Version of the
CALPUFF Modeling System, EPA–454/R–08–007,
August 2008; also see CALPUFF Model Change
Bulletins B (MCB–B), MCB–C and MCB–D.
81 Assessment
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transformations by recommending that
states use the 98th percentile of
modeled visibility impacts,82 an
approach that EPA followed here, to
address the possibility that the model
could overestimate impacts. EPA’s
discussion of CALPUFF in this 2005
rulemaking addresses these issues at
length.83
EPA’s modeling in this action was
consistent with the BART Guidelines
and Appendix W. As explained in more
detail above, in recommending the use
of CALPUFF for assessing source
specific visibility impacts, EPA
recognized that the model had certain
limitations but concluded that ‘‘[f]or
purposes of the regional haze rule’s
BART provisions . . . CALPUFF is
sufficiently reliable to inform the
decision-making process.’’ 84 To the
extent that the comment takes issue
with the provisions in the BART
Guidelines for use of CALPUFF as
described above, the legal deadline for
challenging the use of CALPUFF has
passed. In addition we encourage the
commenter to provide input in the event
that EPA develops any new future
visibility guidelines and predictive
models.
With respect to the comment on the
IMPROVE data, we have addressed this
in the response to another comment.
Comment: Regional haze is affected
by global geologic, atmospheric and
anthropogenic sources. None of the
sources are controllable to the extent of
achieving ‘‘natural visibility conditions’’
at the targeted time frame. The
quantification of ‘‘natural visibility’’ at
any geographic point is irrational.
Natural visibility is a temporal quantity
and therefore any quantified value is
subjective and not scientific. Regional
haze is subject to global atmospheric
conditions which provide dilutive
action to the identified sources of haze
(anthropogenic or otherwise).
Atmospheric conditions are directly
related to the baseline eleven year solar
cycle. To have any form of validity, the
collection period would necessarily
encompass at least one full solar cycle,
arguably two full cycles. Furthermore,
the dilutive effects of atmospheric
conditions (and therefore, the
quantification of visibility) are directly
related to the known periodic oceanic
events commonly referred to as ‘‘el
˜
˜
Nino’’ and ‘‘la Nina’’. These events have
been monitored and quantified since
1950 and occurrences are subcategorized as weak, moderate and
strong. The periodicity of strong events
82 70
FR at 39121
FR at 39121–29124.
84 70 FR at 39123.
83 70
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˜
˜
for both ‘‘el Nino’’ and ‘‘la Nina’’ is
every 9–11 years. The last strong ‘‘el
˜
Nino’’ occurred in 1997. The last two
˜
strong ‘‘la Nina’’ events occurred in
2010 and 1999. The baseline data
collection for regional haze is ignorant
of these significant atmospheric events,
which makes the data collection period
irrelevant and therefore the ‘‘baseline
visibility’’ invalid.
Response: EPA disagrees with the
characterizations in this comment. EPA
recognizes that a variety of global scale,
natural emissions sources affect natural
visibility levels at Class I areas, and we
described methods used to assess
natural haze levels.85 We disagree that
it is necessary to model visibility
impairment for one or two full solar
cycles. The formation of fine particulate
matter, and subsequent impacts on
regional haze, depend on variations in
local meteorological conditions.
Variability in meteorological conditions
is primarily determined by seasonal
weather conditions, and the modeling
period of calendar years 2001–2003
used in our analysis includes
substantial variability in weather
conditions. While phenomena such as el
˜
˜
Nino and la Nina can affect the
frequency of extreme events, our
modeling analysis is based on the 98th
percentile visibility impacts and is
therefore designed to exclude extreme
˜
˜
events. El Nino and la Nina events may
also affect annual total precipitation,
temperature and other meteorological
parameters, however, the commenter
has not provided any evidence that the
98th percentile visibility impacts would
˜
differ significantly during an el Nino
˜
and la Nina year. We believe that it is
sufficient to model visibility
impairment for a 3 year period. In the
preamble to the BART Guidelines, we
discussed meteorological variability and
explained how use of the 98th
percentile would minimize the
likelihood that the highest modeled
visibility impacts would be caused by
unusual meteorological conditions. 70
FR 39121. As explained above, our use
of the 98th percentile is consistent with
the BART Guidelines and in
recommending the use of CALPUFF for
assessing source specific visibility
impacts, EPA recognized that the model
had certain limitations but concluded
that ‘‘[f]or purposes of the regional haze
rule’s BART provisions . . . CALPUFF
is sufficiently reliable to inform the
decision-making process.’’ 86 Thus to
85 ‘‘Guidance for Estimating Natural Visibility
Conditions under the Regional Haze Rule’’
Document No. EPA–R09–OAR–2012–0345–0003–
B9, U.S. Environmental Protection Agency,
September, 2003.
86 70 FR at 39123.
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the extent that the comment suggests
that the BART Guidelines should have
used a different percentile to account for
solar variability in solar cycles, the legal
deadline for challenging the use of
CALPUFF has passed. In addition we
encourage the commenter to provide
input in the event that EPA develops
any new future visibility guidelines and
predictive models.
2. EPA Modeling
a. Comments on EPA Modeling
Comment: Several commenters have
argued that EPA should have used
updated models and procedures for its
revised modeling. In addition, several
commenters have argued that the State’s
Protocol was overly conservative in its
treatment of background ammonia
concentrations, and that monitoring
data show that background ammonia
levels are significantly lower than the 2
ppb concentration specified in the
Protocol. Commenters in particular
directed EPA’s attention to ambient
monitoring data for ammonia and
particulate ammonium at a monitoring
site in Boulder in western Wyoming and
at several Class I areas. Ambient
monitoring at the Boulder site was
performed from 2006 to 2011 and these
data were recently published by Li et
al.,87 while the monitoring data at the
Class I areas for an 8 month period from
April 2011 to January 2012 and were
presented at a conference in 2012.88
Response: We agree with the
comments that we should perform new
modeling using updated model versions
and different background ammonia
concentrations. In this response we
explain why we originally used the
same modeling approach used by
Wyoming and why we have updated the
modeling for this action. In 2006, the
State adopted its ‘‘BART Air Modeling
Protocol’’ (Protocol) 89 that specified the
approach for using the CALPUFF
modeling system to evaluate BART
visibility impacts, and the State and
several BART sources performed
modeling studies that were consistent
with that protocol. For our original
proposal in 2012, EPA performed
87 Li, Y., Schwandner, F.M., Sewell, H.J.,
Zivkovich, A., Tigges, M., Raja, S., Holcomb, S.,
Molenar, J.V., Sherman, L., Archuleta, C., Lee, T.,
Collett Jr., J.L., Observations of ammonia, nitric
acid, and fine particles in a rural gas production
region, Atmospheric Environment (2013), doi:
10.1016/j.atmosenv.2013.10.007.
88 Chen et al., A Pilot Monitoring Study of
Atmospheric NHx at Selected IMPROVE sites
AWMA Aerosol and Atmospheric Optics, Visibility
& Air Pollution Conference, September 24–28, 2012,
Whitefish, MT.
89 Wyoming’s ‘‘BART Air Modeling Protocol’’
(Protocol) is included in the docket in the State’s
Technical Support Document.
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5111
additional modeling using the State’s
Protocol to evaluate a limited number of
emissions scenarios that the State had
not evaluated in its modeling. EPA
recognized that there had been updates
to CALPUFF modeling guidance and
model versions after 2006 when the
State adopted the Protocol, however, in
our original proposal in 2012, which
included a limited, gap-filling analysis,
we proposed that it was preferable to
maintain consistency with the modeling
approach that the State had adopted in
its Protocol. In our re-proposal on June
10, 2013, EPA recognized that some of
the options used from the State’s
Protocol were inconsistent with BART
Guidelines, such as the approach for
determining baseline emissions. As a
result, for the re-proposal EPA
performed new modeling using updated
emissions data for the baseline period
and for all emissions control
technologies, however, EPA continued
to use the State’s Protocol for EPA’s reproposed modeling analysis.
After evaluating comments on the reproposal, EPA determined that it was
necessary to remodel all of the baseline
and control technology scenarios using
different background ammonia
concentrations for the BART sources
that we reconsidered for this action,
including Naughton, Jim Bridger,
Laramie River, Dave Johnston and
Wyodak. Because this approach
represents a significant change from
State’s original Protocol, we believed
that it was appropriate to develop a new
modeling protocol that also adopts the
current model version approved for
regulatory use, CALPUFF version 5.8,
and current regulatory default options.
In making this decision, we considered
the merits of continuing to use the
State’s original protocol versus the
benefits of using the updated CALPUFF
model that became available after the
State’s Protocol was adopted, and
different background ammonia
concentrations based in part on data
that have also become available since
then, and we concluded that it was
necessary to adopt an updated
Protocol 90 to respond fully to a number
of issues raised by various commenters.
The new EPA Protocol for modeling of
Wyoming BART uses the same
CALPUFF model version 5.8 as did the
protocol that we previously adopted for
modeling BART sources visibility
impacts in Montana.91
90 Air Quality Modeling Protocol: Wyoming
Regional Haze Federal Implementation Plan, U.S.
EPA, January, 2014.
91 Modeling Protocol: Montana Regional Haze
Federal Implementation Plan (FIP) Support,
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EPA evaluated the comments and the
ambient ammonia monitoring data
submitted by commenters. EPA
understands that there is no single
accepted method for estimating the
background concentration of ammonia,
and that any method will have
advantages and disadvantages. The lack
of consensus on a method was a factor
in EPA’s decision to set aside the 2 ppb
concentration value specified in the
State’s Protocol and instead to rely in
part on the default values in Interagency
Workgroup on Air Quality Modeling
(IWAQM) Phase 2 report 92 and in part
on monitoring data. Specifically, for
BART sources in western Wyoming we
performed two modeling runs, one
relying on an IWAQM default value and
the other relying only on monitoring
data. As presented below, EPA’s two
sets of modeling results for this BART
source support our final BART
determinations, as they both show
similar visibility benefits. As explained
below, we relied only on an IWAQM
default value for BART sources in
eastern Wyoming.
The 1998 IWAQM report is the only
guidance available for choosing
ammonia background concentrations.
The IWAQM Phase 2 report relied on a
1992 review of ambient monitoring data
for ammonia by Langford et al.93 and
explains that: ‘‘. . . the formation of
particulate nitrate is dependent on the
ambient concentration of ammonia,
which preferentially reacts with sulfate.
The ambient ammonia concentration is
an input to the model. Accurate
specification of this parameter is critical
to the accurate estimation of particulate
nitrate concentrations. Based on a
review of available data, Langford et al.
suggest that typical (within a factor of 2)
background values of ammonia are: 10
ppb for grasslands, 0.5 ppb for forest,
and 1 ppb for arid lands at 20 degrees
Celsius. Langford et al. (1992) provide
strong evidence that background levels
of ammonia show strong dependence
with ambient temperature (variations of
a factor of 3 or 4) and a strong
dependence on the soil pH. However,
given all the uncertainties in ammonia
data, IWAQM recommends use of the
background levels provided above,
prepared for EPA Region 8 by Alpine Geophysics,
LLC, November 21, 2011.
92 Interagency Workgroup On Air Quality
Modeling (IWAQM) Phase 2 Summary Report And
Recommendations For Modeling Long Range
Transport Impacts (EPA–454/R–98–019), EPA
OAQPS, December 1998, http://www.epa.gov/
scram001/7thconf/calpuff/phase2.pdf.
93 Langford, A.O., F.C. Fehsenfeld, J.
Zachariassen, and D.S. Schimel (1992), Gaseous
ammonia fluxes and background concentrations in
terrestrial ecosystems of the United States, Global
Biogeochemical Cycles, 6, 459–483.
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unless specific data are available for the
modeling domain that would discredit
the values cited. It should be noted,
however, that in areas where there are
high ambient levels of sulfate, values
such as 10 ppb might overestimate the
formation of particulate nitrate from a
given source, for these polluted
conditions. Furthermore, areas in the
vicinity of strong point sources of
ammonia, such as feed lots or other
agricultural areas may experience
locally high levels of background
ammonia.’’ 94
The IWAQM Phase 2 report also states
that ‘‘[i]n a refined analysis, ‘‘the
background concentrations of ozone and
ammonia are allowed to vary in time
and space.’’ 95 In summary, given
numerous uncertainties in ammonia
data, the IWAQM Phase 2 report
recommends use of the background
values it provides for different land use
categories, unless specific data is
available in the modeling domain as a
more accurate substitute for its
recommended default values, and
allows for the consideration of
background ammonia concentrations
that vary seasonally or spatially.
EPA has reviewed monitoring data for
ammonia and ammonium that have
been collected at one site in western
Wyoming since 2006.96 We have
determined that the monitoring data
from this site are the most
representative monitoring data available
for characterizing ammonia and
ammonium background levels in the
modeling domains used for western
Wyoming as explained in detail below.
Based on this analysis, EPA has
concluded that the constant 2 ppb
background concentration used by the
State is substantially higher than the
observed combined ammonia and
particulate ammonium concentrations at
this monitoring site in western
Wyoming, especially during the winter
season when the observed sum of
ammonia and particulate ammonium
concentration were typically much
lower than 2 ppb.97 Therefore, for two
BART sources in western Wyoming
(PacifiCorp’s Naughton and Jim Bridger)
in one of our modeling runs we
94 Interagency Workgroup On Air Quality
Modeling (IWAQM) Phase 2 Summary Report And
Recommendations For Modeling Long Range
Transport Impacts, EPA–454/R–98–019, (December
1998) pages 14–15.
95 IWAQM, Ibid., page 6.
96 Li, Y., Schwandner, F.M., Sewell, H.J.,
Zivkovich, A., Tigges, M., Raja, S., Holcomb, S.,
Molenar, J.V., Sherman, L., Archuleta, C., Lee, T.,
Collett Jr., J.L., Observations of ammonia, nitric
acid, and fine particles in a rural gas production
region, Atmospheric Environment (2013), doi:
10.1016/j.atmosenv.2013.10.007.
97 Li et al. U.S. EPA, December, 2013.
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modeled using monthly varying
ammonia background concentrations
based on the combined observed
concentration of ammonia and
particulate ammonium at this
monitoring site in western Wyoming, as
described in the EPA Protocol.98 In a
second modeling run for these two
BART sources, we modeled using the
default IWAQM ammonia concentration
of 0.5 ppb for forested areas. Although
western Wyoming includes a mixture of
arid grasslands and forested areas, we
used the IWAQM default value of 0.5
ppb for forested areas because the Class
I areas in the modeling domain are
primarily forested, and because the
monitoring data more nearly matched
the IWAQM recommendation for forests
than the default for the other land types.
When Wyoming adopted its Protocol
in 2006, the State explained that: ‘‘A
constant background ammonia
concentration of 2.0 ppb is specified.
This value is based upon monitoring
data from nearby states and IWAQM
guidance. Experience suggests that 2.0
ppb is conservative in that it is unlikely
to significantly limit nitrate formation in
the model computations.’’ 99
The Wyoming Protocol specified a
constant 2 ppb background ammonia
concentration, but the Protocol
(addressing source owners performing
their own BART analyses) states that:
‘‘[i]f you believe that ammonia limiting
is appropriate for a specific BART
analysis, justification should be
discussed with the Division prior to its
use.’’ 100 The Wyoming Protocol in the
text quoted here refers to a method for
correcting CALPUFF for ammonia
limiting conditions, which indicates
that the State recognized the possibility
that its protocol could be overly
conservative in its treatment of
ammonia. Therefore, we believe it is
appropriate and consistent with the
IWAQM Phase 2 report and the
intention of the State’s Protocol to
model a BART source in western
Wyoming using both the newly
available monitoring data, and the
default concentration recommended in
the IWAQM Phase 2 report, to represent
background ammonia concentrations
more accurately than would be the case
if we retained the 2 ppb value specified
in the State Protocol.
We describe here in more detail the
ambient monitoring data from the site in
western Wyoming and our use of those
98 Air Quality Modeling Protocol: Wyoming
Regional Haze Federal Implementation Plan.
99 Wyoming Protocol, p. 12.
100 Wyoming Protocol, p. 15.
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data. Li et al (2013) 101 report on an
analysis of ambient monitoring data
conducted from 2006 to 2011 at the
Pinedale site in western Wyoming in an
area with significant oil and gas
production. The monitoring site
included measurements of gaseous
ammonia (NH3) and particulate
ammonium (NH4) and a complete set of
acidic species including gaseous nitric
acid and particulate nitrate and sulfate.
The complete set of measurements
makes it possible to determine the total
ammonia and ammonium concentration
(NHX=NH3+NH4) and to determine if
ammonium nitrate formation is limited
by the availability of excess NH3. Li et
al found significant seasonal variability
in NH3 and NH4 concentrations at the
site and concluded that excess nitric
acid was present in winter, while NH3
concentrations were close to zero in
winter, indicating that formation of
ammonium nitrate was limited by the
availability of ammonia at this site in
winter.102 Because ammonia at this
monitoring site may have been affected
by nearby sources of sulfuric acid and
nitric acid, which would deplete the
gaseous ammonia concentration locally,
we used the combined gaseous and
particulate measurement of NHX to
estimate monthly average background
ammonia concentrations, with a low
concentration in January of 0.36 ppb
and a peak concentration in 1.12 ppb in
August.103 The monitor is located in an
area that includes nearby sources of
ammonia emissions from livestock and
other anthropogenic sources, including
a nearby area of oil and gas production
activity, which could result in locally
elevated ammonia compared to the area
more immediate to the BART source
and to the nearest Class I areas.
Moreover, some of the particulate
ammonium observed at the site was
irreversibly bound with sulfate and may
have had a non-local origin due to long
range transport of ammonium sulfate.
These factors mean that this estimate of
local background may tend to
overestimate the regional background
ammonia concentration and thus also
overestimate the visibility benefit due to
NOX reductions at sources. There may
be other unknown factors also working
in the same direction or in the other
101 Li, Y., Schwandner, F.M., Sewell, H.J.,
Zivkovich, A., Tigges, M., Raja, S., Holcomb, S.,
Molenar, J.V., Sherman, L., Archuleta, C., Lee, T.,
Collett Jr., J.L., Observations of ammonia, nitric
acid, and fine particles in a rural gas production
region, Atmospheric Environment (2013), doi:
10.1016/j.atmosenv.2013.10.007.
102 Li et al., Ibid.
103 Air Quality Modeling Protocol: Wyoming
Regional Haze Federal Implementation Plan,U.S.
EPA, December, 2013, page 18, Table 7.
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direction. For example, monitoring
methods for ammonia and quality
systems for characterizing monitoring
accuracy have not been standardized to
the extent that methods for other
ambient compounds have been,
resulting in uncertainty as to whether
there is bias in the measurements.
As discussed above, we also modeled
the PacifiCorp Naughton and Jim
Bridger BART sources in western
Wyoming using a constant background
ammonia concentration of 0.5 ppb,
which is the IWAQM Phase 2 report
default recommendation for forested
areas. Model results using either
approach to determine an ammonia
background concentration support our
final BART determinations, as they both
show similar visibility benefits.
We also remodeled the BART sources
in eastern Wyoming including Wyodak,
Dave Johnston and Laramie River. The
Class I areas most impacted by these
BART sources are Badlands and Wind
Cave National Parks in western South
Dakota. The closest long-term ammonia
monitoring site to these Class I areas is
at site at Beulah, North Dakota operated
by the State of North Dakota. This site
is about 280 miles from Badlands
National Park and about 300 miles away
from Wind Cave NP. The area around
Beaulah site includes a mix of
agricultural lands and grassland.
Measured monthly average gaseous
ammonia concentrations at the Beulah
site in central North Dakota vary from
about 1 to 2 ppb throughout the year,
with the lowest values in fall and
winter.104 Additionally, combined
ammonia and particulate ammonium
measurements have been reported at
Wind Cave National Park for an 8 month
period by Chen et al.105 This study
measured NHX daily average
concentrations in the range of about
0.05 to 4 ppb, with an annual average
concentration of 0.75 ppb. We
considered these monitoring data
sufficient to put into serious doubt the
2 ppb concentration specified in the
State’s Protocol, but insufficient to
support either a single or an alternative
modeling run based on monitoring data.
Therefore, we chose to rely on the
IWAQM Phase 2 report for a single set
of modeling runs for the BART sources
in eastern Wyoming. The area around
104 Protocol for BART-Related Visibility
Impairment Modeling Analyses in North Dakota,
November, 2005, North Dakota Department of
Health, Division of Air Quality, 1200 Missouri
Avenue, Bismarck, ND 58506. Page 33.
105 Chen et al., A Pilot Monitoring Study of
Atmospheric NHX at Selected IMPROVE sites
AWMA Aerosol and Atmospheric Optics, Visibility
& Air Pollution Conference, September 24–28, 2012,
Whitefish, MT.
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Wind Cave National Park includes
forested areas, including Black Hills
National Forest, while the area around
Badlands National Park includes a mix
of arid and grass lands. While there is
uncertainty in the appropriate
background ammonia level in this
region, we used the IWAQM Phase 2
report recommended value of 1 ppb for
arid lands because it falls within the
range of the limited monitoring data
available in nearby regions and because
it is represents an intermediate level for
the different land use types within the
region.
For both the eastern and western
Wyoming modeling domains and runs,
we corrected for ammonia limiting
conditions. The correction for ammonia
limiting conditions is a post-processing
step in POSTUTIL, one component of
the CALPUFF modeling system.
Because CALPUFF simulates each
BART unit individually, the background
ammonia concentration is assumed by
the model to be fully available to react
with emissions from each unit. In
reality, the total emissions from the
combined units compete for the
available ammonia. Also, because
CALPUFF simulates multiple parcels of
air originating at each unit, there is the
possibility that different parcels can
overlap at a Class I area. The ammonia
limiting correction in POSTUTIL is
designed to repartition the available
ammonia to react with emissions from
all of the units and overlapping air
parcels, thereby avoiding double
counting of the background ammonia.
We used the same ammonia limiting
correction in our modeling for Montana
BART 106 sources, and this is a standard
configuration in the CALPUFF modeling
system.
In summary, we concluded that it was
more reasonable to model visibility
impacts in western Wyoming using both
the default IWAQM Phase 2 report
recommendation for forested areas and
using a seasonally varying NH3
concentration in western Wyoming that
was based on long term monitoring of
NH3 and NH4 from one site, than to use
the 2 ppb concentration specified in the
State’s Protocol. We found that the
visibility impacts predicted for the
various control levels at the PacifiCorp
Naughton and Jim Bridger BART
sources were very similar with these
two approaches and that either set of
results supports the same BART
determination for these sources.
Therefore, we did not have to make a
106 Modeling Protocol: Montana Regional Haze
Federal Implementation Plan (FIP) Support,
prepared for EPA Region 8 by Alpine Geophysics,
LLC, November 21, 2011.
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determination that one approach was
superior to the other, and we have not
done so. We also determined that it was
appropriate to use the default IWAQM
Phase 2 report recommendation of 1 ppb
for eastern Wyoming.
Comment: A commenter believes that
the improvements from the addition of
SCR technology are based on highly
conservative models which overestimate
the deciview reduction as compared to
actual monitored data collected at the
IMPROVE stations. Subsequently, the
improvement in visibility provided by
SCR is not supported by the escalated
costs of $600 million above the cost to
install Wyoming’s proposed control
technologies.
Response: EPA disagrees with this
comment to the extent that it takes issue
with EPA’s modeling. As discussed in
response to other commenters, EPA
recognized that the State’s original
modeling protocol specified a fixed
value of 2 ppb for background ammonia.
EPA has performed new modeling using
lower background concentrations and
using a correction for ammonia limiting
conditions when modeling multiple
units from a single BART source.
EPA also used the most current
regulatory approved versions of the
models in the updated modeling. EPA
has recognized that the CALPUFF
model can be conservative in estimating
visibility impairment, and therefore,
EPA has used the 98th percentile model
results instead of the maximum
modeled visibility impairment to
address the possibility of model
overpredictions. In recommending the
use of CALPUFF for assessing source
specific visibility impacts, EPA
recognized that the model had certain
limitations but concluded that ‘‘[f]or
purposes of the RHR’s BART provisions,
CALPUFF is sufficiently reliable to
inform the decision making process,
e.g., see 77 FR 39123.107 As discussed
107 77 FR 39123: ‘‘Because of the scale of the
predicted impacts from these sources, CALPUFF is
an appropriate or a reasonable application to
determine whether such a facility can reasonably be
anticipated to cause or contribute to any
impairment of visibility. In other words, to find that
a source with a predicted maximum impact greater
than 2 or 3 deciviews meets the contribution
threshold adopted by the States does not require the
degree of certainty in the results of the model that
might be required for other regulatory purposes. In
the unlikely case that a State were to find that a 750
MW power plant’s predicted contribution to
visibility impairment is within a very narrow range
between exemption from or being subject to BART,
the State can work with EPA and the FLM to
evaluate the CALPUFF results in combination with
information derived from other appropriate
techniques for estimating visibility impacts to
inform the BART applicability determination.
Similarly for other types of BART eligible sources,
States can work with the EPA and FLM to
determine appropriate methods for assessing a
single source’s impacts on visibility.’’
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above, to the extent that the comment
takes issue with the use of the 98th
percentile, the legal deadline for
challenging the use of CALPUFF has
passed, but we encourage the
commenter to provide input in the event
that EPA develops any new future
visibility guidelines and predictive
models.
Comment: The commenter states that
EPA made five errors in its visibility
modeling, including (1) given the
general inaccuracy in CALPUFF unitspecific modeling, not allowing
Wyoming the deference accorded it
under the CAA; (2) relying upon an
outdated CALPUFF method of visibility
modeling, contrary to EPA precedent;
(3) violating the applicable modeling
guidance, Appendix W, by not using the
‘‘best’’ science; (4) violating the Data
Quality Act by not using the ‘‘best’’
science; and (5) failing to recognize the
gross overestimations and internal
inconsistencies in EPA’s modeling
approach.
Response: EPA disagrees with this
comment. In response to item (1): In
promulgating the BART guidelines we
made the decision in the final BART
Guideline to recommend that the model
be used to estimate the 98th percentile
visibility impairment rather than the
highest daily impact value as proposed.
We made the decision because ‘‘there
are other features of our recommended
modeling approach that are likely to
overstate the actual visibility effects of
an individual source. Most important,
the simplified chemistry in the model
tends to magnify the actual visibility
effects of that source. Because of these
features and the uncertainties associated
with the model, we believe it is
appropriate to use the 98th percentile, a
more robust approach that does not give
undue weight to the extreme tail of the
distribution.’’ 77 FR 39121. In regard to
deference to the state, as discussed in
more detail elsewhere in this document,
Congress crafted the CAA to provide for
states to take the lead for implementing
plans, but balanced that decision by
requiring EPA to approve the plans or
prescribe a federal plan should the state
plan be inadequate to meet CAA and
regulatory requirements. Our action
today is consistent with the statute and
regulations. In response to item (2): We
initially relied on the State’s modeling
Protocol, adopted in 2006, that specified
model versions available at that time,
but that have since been updated. In our
original proposal we performed limited
gap filling modeling that was consistent
with the State’s Protocol and that used
the same model versions as the State. In
this final action, as presented in more
detail in the Protocol in the docket, due
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to a number of other changes in the
protocol, we also updated the protocol
to use the current regulatory version of
the CALPUFF modeling system. In
response to items (3) and (4): In
recommending the use of CALPUFF for
assessing source specific visibility
impacts, EPA recognized that the model
had certain limitations but concluded
that ‘‘[f]or purposes of the regional haze
rule’s BART provisions . . . CALPUFF
is sufficiently reliable to inform the
decision-making process.’’ 108 EPA
accordingly appropriately used
CALPUFF in this action. EPA
recognized that there were uncertainties
in the science of the CALPUFF
modeling system, and therefore used the
less conservative 98th percentile value
to model results to address the
possibility that the model was overly
conservative. We address concerns
about the Data Quality Act (also referred
to as the Information Quality Act),
elsewhere in this document. In response
to item (5): EPA recognized that the
State’s original Protocol was
inconsistent with the IWAQM report
and monitoring data because of the use
of a constant 2 ppb ammonia
concentration, and our modeling in this
action relied on ambient monitoring
data and the default values consistent
with IWAQM Phase 2 report, to specify
two alternatives for more realistic
background ammonia concentrations in
western Wyoming. We also reduced the
background ammonia concentration
from 2 to 1 ppb in eastern Wyoming, as
discussed previously. A seasonal
ammonia concentration was not
adopted due to the lack of high quality
monitoring data in eastern Wyoming;
however, as discussed previously, the 1
ppb background estimate is consistent
with IWAQM Phase 2 report. As
discussed elsewhere, we also used the
ammonia limiting correction for
modeling multiple units from a single
BART source to address concerns with
the model being overly conservative.
Comment: Contrary to its own
guidance, EPA failed to use the most
realistic model. 40 CFR part 51,
Appendix W, EPA’s modeling guidance,
demands that the ‘‘best’’ model should
always be used. EPA failed to use the
‘‘best’’ model in Wyoming, which is
CALPUFF 6.4. Therefore, EPA failed to
follow Appendix W’s requirements.
Response: We disagree with this
comment. As explained above, EPA
followed the RHR. Specifically, in
recommending the use of CALPUFF for
assessing source specific visibility
impacts, EPA recognized that the model
had certain limitations but concluded
108 70
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that ‘‘[f]or purposes of the regional haze
rule’s BART provisions . . . CALPUFF
is sufficiently reliable to inform the
decision-making process.’’ 109 EPA
accordingly appropriately used
CALPUFF in this action. The use of
CALPUFF is subject to GAQM
requirements in section 3.0(b), 4, and
6.2.1(e) which includes an approved
protocol to use the current 5.8 version,
which is the version we used for EPA’s
final modeling analysis. We did not use
CALPUFF Version 6.4 because this
version of the model has not been
approved by EPA for regulatory use.
We made the decision in the final
BART Guidelines to use less than the
highest daily impact value for
assessment of visibility impacts. We
made this decision in response to
comments we received expressing
concern that the chemistry modules in
the CALPUFF model are less advanced
and that use of the 1st High was
conservative and the knowledge that
CALPUFF’s simplified chemistry could
lead to model overpredictions and thus
be conservative. We decided in the
BART Guideline to use the 98 percentile
for CALPUFF based modeling results.
We also received comments opposed to
using the day with the worst
meteorology, but the primary reason we
changed to using a less stringent metric
than the day with the highest visibility
impact was because of concerns about
overestimations in CALPUFF’s
simplified chemistry. As a result, we
determined that it was appropriate to
use the 98th percentile or 8th High
value when modeling all days of the
year instead of the 1st High value, also
described as the Highest Daily impact
level for each year modeled: ‘‘Most
important, the simplified chemistry in
the model tends to magnify the actual
visibility effects of that source. Because
of these features and the uncertainty
associated with the model, we believe it
is appropriate to use the 98th
percentile—a more robust approach that
does not give undue weight to the
extreme tail of the distribution.’’ 110
Comment: EPA’s modeling for its
regional haze FIP action was inadequate
and incomplete. (EPA failed to re-run
WRAP regional modeling due to ‘‘time
and resource constraints’’). Therefore,
EPA’s regional haze FIP action violates
the ‘‘Guideline on Air Quality Models,’’
40 CFR part 51 Appendix W, the
Information Quality Act and the
implementing guidelines issued,
respectively, by the U.S. Office of
Management and Budget (OMB) and the
EPA which require information
disseminated by EPA to be accurate,
109 70
FR at 39123.
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complete, reliable and unbiased. The
Information Quality Act and EPA’s
‘‘Information Quality Guidelines’’ place
a heightened standard on ‘‘influential’’
information, including scientific
information regarding health, safety, or
environmental risk assessments. EPA’s
inaccurate and incomplete visibility
modeling is by definition ‘‘influential,’’
because EPA could reasonably
determine that dissemination of the
information will have or does have a
clear and substantial impact on
important public policies or important
private sector decisions, such as the
BART NOX determinations in EPA’s
regional haze FIP.
Therefore, this ‘‘influential’’
information must be based on best
available science and data and
supporting studies must be conducted
in accordance with sound objective
scientific practices and methods. EPA’s
Guidelines implementing the
Information Quality Act expressly
contemplate the correction of
information disseminated by EPA that
falls short of the ‘‘basic standard of
quality, including objectivity, utility,
and integrity,’’ established by either
EPA’s own Guidelines or those issued
by OMB.
The commenter seeks correction to a
number of errors and omissions in
EPA’s regional haze FIP with regard to
CALPUFF modeling and EPA’s failure
to re-run the WRAP model. The
commenter requests that EPA withdraw
its regional haze FIP until these issues
are resolved.
Response: As EPA explained in our
Information Quality Guidelines, we
believe ‘‘that the thorough consideration
provided by the public comment
process serves the purposes of the
Guidelines, provides an opportunity for
correction of any information that does
not comply with the Guidelines, and
does not duplicate or interfere with the
orderly conduct of the action.’’ 111
Therefore, we are responding to the
modeling comments and related
comments regarding EPA’s Guidelines
and the Information Quality Act in this
document.
WRAP performed regional
photochemical modeling using both the
Community Multi-Scale Air Quality
modeling system (CMAQ) and
Comprehensive Air Quality Model
(CAMx) air quality models to evaluate
progress toward attaining visibility goals
111 Guidelines for Ensuring and Maximizing the
Quality, Objectivity, Utility, and Integrity of
Information Disseminated by the Environmental
Protection Agency, EPA/260R–02–008 October
2002, U.S. Environmental Protection Agency Office
of Environmental Information (2810) 1200
Pennsylvania Avenue NW., Washington, DC 20460.
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5115
using all projected emission changes
from all source categories throughout
the United States. WRAP did not
perform regional photochemical
modeling to evaluate the visibility
impacts of individual BART sources.
While WRAP did make assumptions
regarding the level of emissions control
that would be adopted by BART sources
as part of its analyses, no state or EPA
region has re-run the WRAP’s regional
photochemical models to assess
individual BART source contributions
to visibility impairment. Instead, the
BART sources, the states, and EPA have
used the CALPUFF model to evaluate
contributions to visibility impairment
from individual BART sources. This
approach is consistent with the BART
Guidelines that recommend that the
CALPUFF model should be used to
evaluate visibility impairment from
individual BART sources. Additionally,
while EPA supported development of
WRAP CMAQ modeling in order to
assist states in developing their RPGs
and determining the cumulative benefit
`
of an overall control strategy vis-a-vis
the URP on the 20% worst days, our use
of CALPUFF for evaluating visibility
improvement from a single BART
source is consistent with the BART
Guidelines and also consistent with
modeling performed by other states and
EPA regional offices for individual
BART sources.
We have responded to comments
related to errors and omissions in the
CALPUFF modeling in separate
response to comments.
Comment: The commenter states that
the revised EPA modeling, which used
new information on emissions rates, did
not significantly change the results
identified in Wyoming’s BART analyses.
The commenter also states that there are
small differences between EPA’s and
Wyoming’s analyses which do not
justify EPA rejecting Wyoming’s BART
determinations.
Response: We disagree that in all
cases there are only small differences in
EPA revised modeling and the State’s
modeling. Importantly, as described
elsewhere in this document and in the
docket for this action, EPA revised and
corrected various inputs to the BART
factors so that the analyses are
consistent with the RHR and statutory
requirements. While the difference at
the most impacted Class I area from
individual sources or units is some
cases can be characterized as small, the
cumulative differences from many small
improvements can be significant.
Whether such differences are significant
will depend on the overall
consideration of the BART factors.
Because of the flaws in Wyoming’s
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visibility and cost analyses for many of
its BART sources, EPA could not be
confident that Wyoming’s BART
determinations were reasonable without
undertaking an appropriate analysis of
the statutory factors.
Comment: The commenter states that
Wyoming provided the required
modeled visibility improvement
information for SCR, and quotes from
the State’s analysis: ‘‘Post-Control
Scenario B is directly comparable to
Post-Control Scenario A as the only
difference is directly attributable to the
installation of SCR.’’ The commenter
then concludes EPA did not lack the
required information to evaluate
visibility improvements.
Response: We have addressed this
comment in a previous response, citing
the requirement in the BART Guidelines
that visibility must be assessed relative
to the pre-control scenario (and not just
incremental to other control scenarios).
Moreover, there remain deficiencies, as
presented elsewhere in this document
and docket, with the State’s BART
modeling analyses that justify our
rejection of the State’s BART
determinations for PacifiCorp. Most
notably, as discussed in separate
responses, the State did not assess the
visibility improvement of SNCR as
required by the CAA and BART
Guidelines.
Comment: An older version of the
CALPUFF modeling suite was used by
EPA (CALPUFF model of March 2006
vintage and the CALPOST model of
April 2006 vintage.) These older
versions pre-date the latest Model
Change Bulletin (MCB–D) of June 23,
2007. Since the analysis for the five
Wyoming power plants was performed
in February thru April 2012, we
question why the older version was
used and not the current CALPUFF 5.8
version, which was approved as the
guideline version in June of 2007. We
do not recommend use of the older
versions of CALPUFF and CALPOST.
Response: As described in this action,
our previous modeling continued to use
the State’s Protocol, including the older
model versions, to maintain consistency
with the State’s modeling results.
However, in this final action, we
adopted a new modeling protocol that
uses the current regulatory versions of
the models, including the Model Change
Bulletin suggested by the commenter.
We determined that it was appropriate
to adopt an updated modeling protocol
because we made other significant
changes in the State’s modeling
approach, and because we remodeled all
emissions scenarios, there was no longer
a need to use older model versions for
consistency of comparison of our
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limited gap filling model results to the
State’s original modeling.
Comment: EPA should have used the
most recent version of CALPUFF, or at
a minimum, should have used the
version that EPA requires for other
regional haze SIPs. EPA has taken the
position that CALPUFF Version 5.8
must be used for regional haze
modeling. 77 FR 42834, 42854.
However, EPA’s unit-specific CALPUFF
modeling in Wyoming, completed in
April 2012, used CALPUFF Version
5.711a (originally released in 2004).
Version 5.711a is eight years old, and
several CALPUFF versions behind
Version 5.8. While PacifiCorp believes
the more modern and realistic
CALPUFF Version 6.42 should be used,
at a minimum EPA must abide by its
own position and use Version 5.8 in
evaluating the Wyoming regional haze
SIP, which it failed to do. According to
EPA’s own statements, EPA’s own
modeling results should be discarded
because EPA used an improper
‘‘alternative model’’ in Wyoming.
EPA should have used the most recent
version of CALPUFF (Version 6.42) in
Wyoming because it produces more
realistic and accurate results. Version
6.42 contains needed refinements, such
as a better ‘‘chemistry’’ module known
as ISORROPIA (Version 2.1). CALPUFF
Version 6.42 is more accurate because,
as the FLMs have noted, Version 5.8
does not have the required settings to
perform the new Method 8 visibility
analysis. Additionally, CALPUFF
Version 6.42 has been maintained by
TRC, Inc., a private contractor, and has
had many bug fixes and enhancements
not included in CALPUFF Version 5.8.
Most importantly, the previous
chemistry modules used in Version 5.8
(and in the 5.711a Version EPA used
here) also have been shown to
overestimate nitrate concentrations in
Wyoming by a factor of 3–4 and
substantial improvements have been
made to eliminate this over-prediction
using the ISORROPIA module.
Despite all these advancements in
modeling and modeling science, EPA
conducted its modeling for its regional
haze FIP in 2012 using the same (now
outdated) CALPUFF version that
PacifiCorp and Wyoming used five years
ago, which has been shown to
overestimate results by 300% to 400%.
Rejecting Wyoming’s modeling, and
then using the same, outdated modeling
approach, is arbitrary and capricious.
Response: As described in previous
responses, we previously used the same
modeling protocol adopted by the State
for the purpose of our limited, gap
filling modeling, so that we would have
a consistent basis for comparison with
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the State’s modeling. In this action we
have updated the protocol to use the
current regulatory versions of the
models including CALPUFF version 5.8.
We did not use CALPUFF Version
6.42 because this version of the model
has not been approved by EPA for
regulatory use. EPA relied on version
5.8 of CALPUFF because it is EPAapproved version in accordance with
the Guideline on Air Quality Models
(‘‘GAQM’’, 40 CFR 51, Appendix W,
section 6.2.1.e). EPA updated the
specific version to be used for regulatory
purposes on June 29, 2007, including
minor revisions as of that date. The
approved CALPUFF modeling system
includes CALPUFF version 5.8, level
070623, and CALMET version 5.8 level
070623. CALPUFF version 5.8 has been
thoroughly tested and evaluated, and
has been shown to perform consistently
with the initial 2003 version in the
analytical situations for which
CALPUFF has been approved. Any
other version, and especially one with
such fundamental differences in its
handling of chemistry, would be
considered an ‘‘alternative model’’,
subject to the provisions of GAQM
section 3.2.2(b), requiring full model
documentation, peer-review, and
performance evaluation. No such
information for the later CALPUFF
versions that meet the requirements of
section 3.2.2(b) has been submitted to or
approved by EPA. Experience has
shown that when the full evaluation
procedure is not followed, errors that
are not immediately apparent can be
introduced along with new model
features. For example, changes
introduced to CALMET to improve
simulation of over-water convective
mixing heights caused their periodic
collapse to zero, even over land, so that
CALPUFF concentration estimates were
no longer reliable.112
The change from CALPUFF version
5.8 to CALPUFF 6.4 is not a simple
model update to address minor issues,
but a significant change in the model
science that requires its own rulemaking
with public notice and comment before
it can be relied on for regulatory
purposes.
Furthermore, it should be noted that
the U.S. Forest Service and EPA review
of CALPUFF version 6.4 results for a
limited set of BART applications
showed that differences in its results
from those of version 5.8 are driven by
two input assumptions not associated
112 ‘‘CALPUFF Regulatory Update’’, Roger W.
Brode, Presentation at Regional/State/Local
Modelers Workshop, June 10–12, 2008; http://
www.cleanairinfo.com/
regionalstatelocalmodelingworkshop/archive/2008/
agenda.htm.
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with the chemistry changes in 6.4. Use
of the so-called ‘‘full’’ ammonia limiting
method and finer horizontal grid
resolution are the primary drivers in the
predicted differences in modeled
visibility impacts between the model
versions. These input assumptions have
been previously reviewed by EPA and
the FLMs and have been rejected based
on lack of documentation, inadequate
peer review, and lack of technical
justification and validation.
Comment: The commenter states that
EPA treats the results from the
CALPUFF as being capable of accurately
predicting visibility improvements
down to the tenths or hundredths of a
deciview, but that the model does not
accurately predict visibility impacts at
this level.
Response: As described in response to
other comments, EPA recognized that
there is uncertainty in the CALPUFF
results, and EPA addressed this
uncertainty by using the modeled 98th
percentile visibility impairment rather
than the maximum visibility
impairment. EPA considers model
changes on the order of tenths of a
deciview to be useful for informing the
BART decision process, consistent with
BART modeling performed by other
EPA regions and states.
Comment: PacifiCorp presented
substantial information supporting the
need to use improved and updated
versions of the models and provided
substantial information on the effects
that the nitrogen oxides to nitrogen
dioxide conversion rate and background
ammonia concentrations have on
modeled visibility impacts.
Response: We agree with the
comment that the background ammonia
concentration has a significant effect on
model predicted visibility impacts. As
described elsewhere in this action, we
reviewed recent ambient monitoring
data for ammonia and particulate
ammonium, and concluded that the
original background ammonia
concentration of 2 ppb was inconsistent
with the IWAQM Phase 2 report and
monitoring data for estimating visibility
impacts in Wyoming, especially in the
western portion of the State. In the
modeling results included in this action,
we considered the default value of 0.5
ppb and also applied a seasonally
varying background ammonia
concentration in western Wyoming that
was based on measurements from 2006
to 2011 of total ammonia and particulate
ammonium at Pinedale, Wyoming.113
We also reduced the background
ammonia concentration to 1 ppb in the
eastern portion of the State, and for both
113 Li
et al. 2013
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parts of the State we used an ammonia
limiting correction for modeling
multiple units from a single BART
source to avoid double counting of the
available ammonia. The use of more
realistic ammonia background
concentrations, the ammonia limiting
correction, and the use of the 98th
percentile modeled impact address the
concern that the CALPUFF model could
overestimate visibility impacts.
Comment: One commenter stated that
we underestimated the background
ammonia concentration in the
CALPUFF modeling, and cited the
IWAQM Phase 2 recommendations for
default ammonia concentrations for
grasslands, forest lands and arid lands,
respectively, of 10, 0.5 and 1 ppb, at 20
degrees Celsius. The commenter stated
that, because land use type can vary
across the large domains used in the
CALPUFF modeling, it would be
appropriate to calculate a weighted
average of the background ammonia
based on the fractional land use type in
the model domain.
Response: We disagree with this
comment. The IWAQM Phase 2 report
does not recommend calculating a
weighted average of default ammonia
concentration based on regional
variation in land use types. The
commenter provides no regulatory basis
for use of a weighted average.
Comment: One commenter stated that
the IWAQM recommended default
background ammonia recommendations
do not specifically account for strong
point/area sources of ammonia, such as
cattle feedlots, which are also scattered
throughout the modeling domain and
which generally add to the background
ammonia levels. This commenter stated
that some areas of the modeling domain,
namely northeastern Colorado, are
described as ‘‘ammonia rich’’. For BART
source analyses in Colorado, the
recommended background ammonia
value from the Colorado Department of
Public Health and Environment
(CDPHE) is 44 ppb, based on
measurements conducted during the
Northern Front Range Air Quality Study
(NFRAQS), and therefore the Wyoming
DEQ/EPA background ammonia
concentration of 2 ppb might not carry
sufficient ammonia for an accurate
modeling assessment of visibility
impacts within certain Colorado Class I
areas.
Response: We disagree with the
comment that large point/area sources
are not included in estimates of
background ammonia concentrations.
While concentrations of ammonia of
several hundred ppb can be observed
near a cattle feedlot, these
concentrations are not typical of
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regional background concentrations.
Additionally, dispersion and vertical
mixing occur in plumes of air
transported downwind of large
emissions sources, and the resulting
dilution of ammonia results in lower
concentrations as the plume is
transported downwind of the source
area. Therefore, ambient ammonia
concentrations are generally greatly
reduced downwind from the source.
Moreover, ammonia has a short
atmospheric lifetime of a few hours to
a few days,114 and removal of ammonia
by deposition further reduces the
concentration downwind of the source
area. Therefore, it would be
inappropriate to estimate background
ammonia levels by measuring ammonia
concentrations close to a large ammonia
emissions source. Background
concentrations of air pollutants are
generally estimated using ambient
monitoring data at background sites that
are specifically selected such that there
is no direct influence by large nearby
point or areas sources.115 Therefore,
background monitoring data do
explicitly include the contributions of
emissions from large point and area
sources by providing a direct
measurement of the ambient
concentration after transport, dilution
and removal processes operate on the
emissions from the source.
The commenter also cites modeling
performed by the CDPHE and ammonia
measurements made during the
NFRAQS studies. As discussed in
another response, CDPHE performed a
CALPUFF model sensitivity study to
evaluate the effect of background
ammonia on model predicted nitrate
concentrations, and found that the
CALPUFF model was insensitive to
variations in background concentrations
greater than 10 ppb and became
progressively more sensitive to
background NH3 as it was reduced from
10 to 0 ppb.116 The NFRAQS study
reported measured ammonia
concentrations in the Denver
metropolitan area, and these
measurements are not representative of
background ammonia concentrations in
114 Langford
et al.
example, see EPA guidance documents
that discuss methods for estimating background
NO2 concentrations: ‘‘Additional Clarification
Regarding Applicability of Appendix W Modeling
Guidance for the 1-hour NO2 NAAQS’’
116 Supplemental BART Analysis CALPUFF
Protocol for Class I Federal Area Visibility
Improvement Modeling Analysis, DRAFT, revised
Aug 19, 2010, Colorado Department of Public
Health and Environment. (CDPHE) Air Pollution
Control Division Technical Services Program, 4300
Cherry Creek Drive South, Denver, Colorado 80246,
pages 26–33.
115 For
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rural and remote areas of central
Colorado or western Wyoming.
Comment: The commenter states that
Wyoming has conducted its regional
haze SIP based on the modeling
protocols and versions available at the
time its regional haze SIP was
completed. Because of this, there are
limitations associated with the results
obtained. However, in proposing its
regional haze SIP, Wyoming has
evaluated the model output with an
understanding of the model’s
limitations. Wyoming then applied its
judgment, as encouraged and required
by EPA’s guidelines and the CAA,
which helped to mitigate the issues
associated with models that over-predict
the visibility improvement associated
with BART controls being added. In
contrast, EPA gives no consideration to
the limitations of the models it uses. In
the absence of using good judgment to
deal with over-predictive results, it is
critical that EPA use the most up-to-date
and scientifically accurate models
available.
We also received related comments
that states have significant modeling
discretion to which EPA failed to grant
the proper deference. One commenter
pointed out that the BART Guidelines
recognize that states can make
judgments regarding the use of
modeling results due to the very real
problems with CALPUFF, including its
overestimation of visibility
improvement. As EPA itself has stated,
Wyoming should be free to make its
own judgment about which modeling
approaches are valid and appropriate.
70 FR 39123. Another commenter
pointed to the statement that ‘‘we must
permit States to take into account the
degree of improvement in visibility that
would result from imposition of BART
on each individual source when
deciding on particular controls.’’ 70 FR
39107, 39129. Another commenter
stated that EPA failed to allow Wyoming
to account for CALPUFF’s
overestimation of NOX impacts, and
therefore, EPA is not affording
Wyoming’s BART decisions the proper
deference when it comes to the
modeling and applying the modeling
results.
Response: As discussed elsewhere in
this document in greater detail,
Congress crafted the CAA to provide for
states to take the lead for implementing
plans, but balanced that decision by
requiring EPA to approve the plans or
prescribe a federal plan should the state
plan be inadequate. Our action today is
consistent with the statute. As also
discussed elsewhere in this document,
we agree that there are limitations in the
original modeling performed by the
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state, and therefore, it was necessary to
perform new modeling using more
realistic background ammonia
concentrations, default values, and
updated model versions to provide a
sound basis for evaluating BART source
visibility impacts. Our revised modeling
is consistent with the BART Guidelines
and with visibility modeling guidance
in the IWAQM Phase 2 report, and we
believe that the revised modeling
constitutes a sound basis for evaluating
visibility impacts of BART sources and
in fact is supportive of Wyoming’s SIP
with respect to sources where ammonia
background makes a significant
differences.
Comment: The commenter states that
EPA should have used the most recent
version of CALPUFF (Version 6.42) in
Wyoming because it produces more
realistic and accurate results and
because Version 5.8 does not have the
required settings to perform the new
Method 8 visibility analysis.
Response: As described in response to
another comment, we used CALPUFF
version 5.8 because this is the approved
regulatory version of the model, while
CALPUFF version 6.42 has not been
approved. CALPUFF version 5.8 does
allow the option of using the Method 8
visibility analysis, and as described in
our modeling protocol, we used Method
8 for our analysis. The availability of
Method 8 in CALPUFF version 5.8 was
one of the reasons that we determined
it was important to perform new
modeling using the current regulatory
version of the model, rather than
continuing to rely on the original
protocol adopted by the State in 2006,
as we had done in our previous
proposal.
Comment: EPA used a different
background ammonia number for
modeling than it requires of the states,
and ignored current science on
background ammonia. Regional haze
modeling, and the resulting predicted
visibility improvement, is greatly
influenced by the background ammonia
number used in the model. EPA
improperly used a constant 2 ppb
background ammonia number for the
Wyoming BART modeling. EPA has not
provided any scientific proof showing
the constant 2 ppb ammonia number is
appropriate for Wyoming. The 2 ppb
ammonia value overestimates visibility
improvement, contrary to the approach
used by Wyoming Land Use, IWAQM
Guidance, WRAP protocols, and
elsewhere.
Commenter suggests that the WRAP
recommended the use of 1 ppb of
ammonia year round for states in the
region to account for seasonal
variability. EPA has required states to
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use 1 ppb of background ammonia when
conducting regional haze modeling. 76
FR 52434 (New Mexico criticized for not
using 1 ppb background ammonia). At
a minimum EPA should follow its own
guidelines and use 1 ppb of background
ammonia when conducting CALPUFF
unit-specific modeling.
However, the ‘‘best’’ science requires
the use of ‘‘variable ammonia’’
background numbers. IWAQM
recommends ammonia background
numbers of 0.5 ppb for forest, 1 ppb for
dry/arid lands, and 10 ppb for
agriculture/grassland. Given its
geographic location and elevation
levels, Wyoming undergoes seasonal
swings of dry-hot summers and snow
covered ground in the winter. Therefore,
the use of a single ammonia
concentration for the entire year in a
state where the land use and land cover
changes significantly between seasons
results in overestimation of visibility
improvements. This is particularly true
in winter when agricultural activity is
minimal and meteorological conditions
make visibility calculations particularly
sensitive to ambient ammonia
concentrations. EPA has approved the
use of variable gaseous ammonia
concentrations before, including the
‘‘Addendum to Modeling Protocol for
the Proposed Desert Rock Generating
Station’’ and should have used them
when conducting the CALPUFF
modeling for Wyoming.
Sensitivity tests on ambient ammonia
concentrations were performed by the
CDPHE for an area in northwest
Colorado. The analysis demonstrated
that visibility calculations performed at
Mount Zirkel Wilderness Area in
northwest Colorado had limited impact
when ambient ammonia concentrations
were reduced from 100 to 1 ppb, but
there was a significant reduction in
visibility impacts when concentrations
were further reduced to 0.1 ppb.
Given the evidence presented above,
the use of the monthly varying ammonia
would provide accurate estimates of
visibility impacts from the PacifiCorp
regional haze units. EPA’s failure to use
variable background ammonia in its
modeling is arbitrary and capricious.
Response: We agree that the 2 ppb
constant background ammonia
concentration is inconsistent with the
IWAQM Phase 2 report default values
and monitored data. This value was
adopted by the State in 2006 before
more reliable ammonia and particulate
ammonium measurements were
available in Wyoming. As described in
this action, we modeled using
seasonally varying background
ammonia concentrations in western
Wyoming based on 5 years of
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monitoring data,117 and we also
modeled using the IWAQM default
value of 0.5 ppb for forests. In eastern
Wyoming we adopted a constant 1 ppb
ammonia concentration based on the
IWAQM guidance. We used an
ammonia limiting correction for BART
sources with multiple units throughout
the State. While robust, long term
monitoring data of ammonia and
particulate ammonium are not available
in eastern Wyoming, the BART sources
in eastern Wyoming, and the South
Dakota Class I areas where they
contribute the greatest visibility
impairment, are located closer to areas
of Nebraska and the Dakotas which have
large agricultural sources of ammonia
emissions. Moreover, the IMPROVE
monitoring at the South Dakota Class I
areas show much higher winter
concentrations of ammonium nitrate
than do Class I areas in western
Wyoming. Therefore, we believe it is
appropriate to adopt higher background
ammonia concentrations in eastern
Wyoming than in western Wyoming,
and we used a constant 1 ppb ammonia
concentration in eastern Wyoming,
consistent with the IWAQM
guidance 118 for arid lands and also
consistent with the WRAP Protocol.119
Comment: EPA made a modeling error
in Wyoming when it used CALPOST
version 5 with Method 6. FLMs
recommended in 2000 the use of
Method 6 to determine visibility
impacts from BART eligible sources.
However, for any recent PSD
application and BART modeling since
2010, EPA has requested that Method 8
be used for determining impacts on
visibility at nearby Class I areas.
The previously preferred Method 6
simply computes background light
extinction using monthly average
relative humidity adjustment factors
particular to each Class I area applied to
background and modeled sulfate and
nitrate. Six years after the development
of Method 6 in 1999, EPA released
enhancements to the background light
extinction equations, which use the
revised IMPROVE variable extinction
efficiency formulation. These
enhancements take into account the fact
that sulfates, nitrates and organics and
other types of particles have different
117 Li
et al., 2013.
Workgroup On Air Quality
Modeling (IWAQM) Phase 2 Summary Report And
Recommendations For Modeling Long Range
Transport Impacts (EPA–454/R–98–019), EPA
OAQPS, December 1998.
119 Tonnesen, G., Wang, Z., Morris, R., Hoats, A.,
Jia, Y., Draft Final Modeling Protocol, CALMET/
CALPUFF Protocol for BART Exemption Screening
Analysis for Class I Areas in the Western United
States, Submitted to the Western Regional Air
Partnership, August 15, 2006.
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118 Interagency
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light extinction coefficients. Also, the
background concentrations at each Class
I area have been updated by EPA to
reflect natural background visibility
condition estimates for each Class I area
for each type of particle. Additionally,
relative humidity adjustment factors
have been tailored separately for small
particles, large particles, and to account
for sea salt background concentrations.
These new enhancements to the
calculation method, called Method 8,
greatly improve the accuracy of the
estimated visibility impact. Method 8
was added to CALPOST in 2008 and
was adopted as the preferred option for
determining impacts on visibility by the
FLMs in their ‘‘Federal Land Managers
Air Quality Related Values Work Group
Guidance Document’’ in 2010 (FLAG
2010). The applicable background
concentrations and relative humidity
adjustment factors using Method 8 for
each Class I area are identified in the
FLAG 2010 document.
Despite the update to Method 8 in
2008 and the stated preference by the
FLMs in 2010 to use Method 8, EPA
conducted the Wyoming BART
modeling in 2012 using the long
outdated and scientifically inferior
Method 6. EPA’s use of Method 6, and
not Method 8, is arbitrary and
capricious.
Response: We agree that it is
preferable to use Method 8 rather than
Method 6 for evaluating visibility
impacts based on the recommendation
of the FLMs in FLAG 2010.120 The older
CALPUFF version 5.711 that was
adopted in the State’s original modeling
protocol in 2006 did not have the option
of using Method 8. In our previous
modeling we adopted the State’s
original protocol to maintain a
consistent basis of comparison with the
State’s modeling results. In this final
action, we adopted an updated
modeling protocol using the current
regulatory version of the model, which
allows the use of Method 8, and we
used Method 8 for the analysis of
visibility impacts.
Comment: We received numerous
comments that EPA incorrectly used the
maximum annual visibility impacts
occurring during any given year of the
2001–2003 baseline period over which
the Wyoming visibility models are run.
Commenters asserted that standard
practice has been, and continues to be,
to average the results over the three year
period as the three year average is a
120 Federal Land Managers’ Air Quality Related
Values Work Group (FLAG) Phase I Report—
Revised (2010).
Natural Resource Report NPS/NRPC/NRR—2010/
232.
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5119
more robust value than the single year
value used by EPA, and thus EPA
should use longer term data. One
commenter pointed out that consistent
with the principle of using longer-term
averages, baseline visibility conditions
under the RHR are determined by taking
the average degree of visibility
impairment for the most and least
impaired days for each of calendar years
2000 through 2004, and averaging the
five annual values.
Response: We disagree with this
comment. In our review of the
CALPUFF modeling results presented
by Wyoming, we cited the change in the
maximum 98th percentile impact over
the modeled three year meteorological
period (2001–2003). As the 98th
percentile value is intended to reflect
the 8th high value in any year, it already
eliminates seven days per year from
consideration in order to account for
short-term events, unusual
meteorological conditions, and any
over-prediction bias in the model. We
also note that our approach is consistent
with the method used by Wyoming in
identifying subject-to-BART sources,
where a source is exempt from BART
only if the modeled 98th percentile
change is less than 0.5 deciview at all
Class I areas for each year modeled.121
That is, whether a source is subject to
BART is dependent on the maximum
98th percentile over the three year
modeled meteorological period, not the
average across the three year period. We
find that it is reasonable to use the same
approach when considering the
visibility improvements associated with
control options. Finally, we note that
this approach is consistent with our
consideration of visibility improvement
in other actions, such as our FIP for
Montana.
Comment: EPA’s use of the maximum
values in its BART NOX determinations
for its regional haze FIP causes inflated
visibility impacts and over-estimated
improvements being used. For example,
if EPA were to run its approved models,
used its approved ammonia values for
the western states, and used the average
visibility impact over the three years
rather than a maximum impact for a
single year, the incremental visibility
impact between installing LNB
technology and SNCR at Wyodak and
Dave Johnston Unit 3 drops to just 0.09
deciview. Instead, EPA has used an
improper evaluation to create an
inflated visibility improvement of 0.15
and 0.17 delta deciview to justify the
installation of the SNCR. As a result,
EPAs’ BART NOX evaluations are
121 Chapter 6, Section 9(d)(i)(C) of the Wyoming
Air Quality Standards and Regulations.
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invalid. The modeling results reported
by Mr. Paine using the actual BART
limits include values for each of the
meteorological years 2001, 2002 and
2003, as well as the average values for
the three years. All of the values signify
a negligible visibility improvement from
SNCR.
Response: We have addressed each
aspect of this comment in separate
responses to comments. In our previous
proposal we performed CALPUFF
model simulations consistent with the
approach specified in the Wyoming
protocol, but in this action we adopted
updated model versions and used lower
ammonia background concentrations
that are consistent with monitoring data
and IWAQM Phase 2 report. Regardless,
as discussed in section IV, in
consideration of our revised cost of
compliance and visibility impact
analyses, and of the remaining BART
factors, we have changed our final NOX
BART determinations for both of the
units in question. We are no longer
requiring SNCR for either Wyodak or
Dave Johnston Unit 4.
Comment: EPA’s use of the
cumulative deciview improvement from
several Class I areas overestimates the
visibility improvement which may
reasonably be anticipated because
visibility impacts from a BART source
may occur on different days at each
Class I area. Adding the numbers in
Tables 47, 54, and 56 of EPA’s proposed
regional haze FIP leads to the
impression that a perceptible visibility
improvement will occur, when in reality
none of the modeled visibility
improvements would be perceptible to
the human eye.
Response: We disagree with this
comment. In evaluating the visibility
improvement associated with various
control options, EPA interprets the CAA
to require consideration of visibility
improvement at all impacted Class I
areas. Consideration of improvement at
multiple Class I areas, as opposed to just
benefits at the most impacted Class I
area, has often been described as
‘‘cumulative visibility improvement.’’
Despite this terminology, however, an
analysis of cumulative visibility
improvement does not necessarily
require that the deciview improvement
at each area be summed together. While
states or EPA are free to take such a
quantitative approach, they are also free
to use a more qualitative approach.
Here, we chose to rely primarily on the
visibility improvement at the most
impacted Class I area, while also
considering the number of additional
Class I areas that would see
improvement, as well as the level of
improvement at each area. We did not
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expressly rely on a summation of
visibility benefits across Class I areas, as
we have done in other regional haze
actions, although, as the commenter
points out, this metric was included in
some tables. Contrary to the
commenter’s assertion, however, a
summation of visibility benefits is not
intended to suggest that individually
imperceptible levels of improvement are
somehow perceptible, but rather to
provide a single metric that can
simultaneously capture both the number
of Class I areas affected and the
magnitude of improvement at those
areas for comparison purposes.
Moreover, we note that visibility
improvement does not need to be
perceptible to be deemed significant for
BART purposes. We have responded in
more detail to concerns regarding
perceptibility elsewhere in this
document.
Comment: The commenter states that
EPA’s cumulative visibility analyses
ignore the discretion given to states in
70 FR 39107; Id. at 39123 (emphasis
added); see also 77 FR 24768, 24774
(Apr. 25, 2012)
Response: As stated above, EPA
primarily relied on the benefits at the
area with the greatest visibility
improvement from controls, but we also
considered impacts and benefits at
nearby areas included in the modeling
analysis. The consideration of visibility
benefits over multiple Class I areas is a
useful metric that can further inform a
BART determination.
Comment: The BART rule provides no
support for EPA’s ‘‘summation of
cumulative impacts’’ approach. Rather,
the BART rule makes clear that the
initial focus is expected to be on the
‘‘nearest Class I area’’ to the facility in
question. 70 FR 39104, 39162 (Separt 6,
2005). The BART rules indicate that it
is appropriate to take account impacts at
not only the nearest Class I area but also
impacts at other nearby Class I areas,
not for the purposing of summing
impacts at all of those areas, but rather
for the purpose of ‘‘determin(ing)
whether effects at those (other) areas
may be greater than at the nearest Class
I area.’’ Id. The BART rule states: ‘‘If the
highest modeled effects are observed at
the nearest Class I area, you may choose
not to analyze the other Class I areas any
further as additional analyses might be
unwarranted.’’ Id.
Response: See our response to
comments above. In addition, the BART
Guidelines provide that states, or EPA
in lieu of the state, have discretion on
how to assess visibility impacts.
Comment: The commenter states that
the BART rule does not preclude a state
from taking into account, as part of a
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BART assessment for a given facility,
visibility impacts projected to occur in
two or more Class I areas that are
attributable to that facility’s emissions.
However, nothing in the rules requires
such an analysis, and such analyses are
deceptive when used in a cumulative
fashion. EPA did not have the authority
to disapprove Wyoming’s visibility
improvement analyses on the grounds
that EPA prefers a different approach
than the lawful and permissible
approach taken by Wyoming. See Train
v. Natural Res. Def. Council, Inc., 421
U.S. 60, 79 (1975).
Response: See our response to
comments above and elsewhere in this
document (e.g., Legal Issue section)
regarding EPA’s oversight authority.
Comment: EPA has improperly failed
to account for the very few number of
days of visibility impacts or the seasonal
timing of when those few impacts occur.
Response: EPA recognizes that the
BART Guidelines allow states to
consider the timing of impacts in
addition to other factors related to
visibility impairment. However, states
are not required to do so, and EPA is not
required to substitute a source’s desired
exercise of discretion for that of the
states. Furthermore, when promulgating
a FIP, EPA stands in the shoes of the
state. In that capacity, EPA is not
required to consider the seasonality of
impacts and has chosen not to do so
here. Taking into account visitation
contradicts the goal of the regional haze
rule of improving visibility on the 20
percent best and worst days. Indeed,
EPA believes that the experiences of
visitors who come to Class I areas
during periods other than the peak
visitation season are important and
should not be discounted.
Comment: A review of the unitspecific CALPUFF EPA modeling
results developed for the Mount Zirkel
Wilderness Area provides a vivid
example of the over-estimation of
visibility improvement that EPA is
relying on to justify the installation of
hundreds of millions of dollars in
additional controls. The unit specific
CALPUFF modeling would indicate that
adding SCR to these units would
improve visibility in Mount Zirkel by
over seven deciviews.
However, the monitored data from
2001–2003 at Mount Zirkel tells a
completely different story. This is the
same time period used in the CALPUFF
models to develop the deciview impacts
for each Wyoming BART-eligible unit
and to project the visibility
improvements associated with the
addition of control devices.
Looking at the three-year average
monitored results, and assuming that
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the nitrates associated with the
emissions from all sources (not just the
BART-eligible EGUs) are completely
eliminated, only a 0.94 deciview
improvement would be expected. EPA
attempts to justify over a billion dollars
in controls at eight PacifiCorp units by
assuming more than seven deciviews of
improvement could be obtained from
these eight units when the actual
monitored data indicates that only a
0.94 deciview improvement would be
possible if all nitrate was removed from
all sources. In essence, EPA’s regional
haze FIP fails to recognize that, given
the monitored nitrate impacts, the
modeled visibility impacts are
obviously grossly exaggerated.
Response: We agree with some of
these concerns—that the original
modeling performed by the State and
EPA used a high background ammonia
concentration and did not correct for
ammonia limiting conditions. This
particularly affected the model results
in the western part of Wyoming and
Class I areas such as Bridger Wilderness
Area.
We have addressed this concern by
adopting a new modeling protocol that
makes several improvements in the
model results, including the use of the
current regulatory version of the model,
the use of Method 8 to assess visibility
impacts, the use of lower background
ammonia concentrations, and ammonia
limiting correction for BART sources
with multiple units. We note that the
model overprediction in our reproposed modeling analyses occurred at
Class I areas affected by BART sources
in western Wyoming, in the region in
which monitoring data showed strong
seasonal variability in ammonia
concentrations. In contrast, modeled
nitrate impacts from BART sources in
eastern Wyoming were significantly
lower than observed nitrate
concentrations at IMPROVE sites at
Wind Cave and Badlands in western
South Dakota.
There are several factors that make it
challenging to directly compare
CALPUFF results to measured
concentrations at IMPROVE monitoring
sites at Class I areas. Most significantly,
the monitor operates every third day,
while the model predicts concentration
each day. Moreover, modeled visibility
impacts from multiple BART sources
cannot be summed and directly
compared to measured data as all BART
sources are unlikely to have their largest
impacts on the same Class I area on the
same day. Additionally, the model 98th
percentile impact should be compared
to the maximum observed monitoring
data because the highest 2% of model
impacts are discarded to address
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concerns that the model can overpredict
visibility impacts.
Comment: The commenter cites a
study by Terhorst and Berkman which
compared CALPUFF model predicted
impacts of the Mojave Power Station at
the Grand Canyon to observed impacts
after the facility was closed in 2005. The
study concluded that there was virtually
no evidence that the (Mojave) closure
improved visibility in the Grand
Canyon, and the commenter cites this
conclusion as evidence of the
unreliability of the CALPUFF model.
Response: We disagree that the
Mohave Power Plant study raises
questions about CALPUFF’s reliability.
The Nevada Division of Environmental
Protection performed CALPUFF
modeling to estimate the contribution of
the Mohave Power Plant to visibility
impairment at Grand Canyon National
Park. Consistent with the BART
Guidelines, the State used the CALPUFF
model to evaluate the Mohave Power
Plant contribution to visibility
impairment relative to natural visibility
conditions. Subsequently, after the
Mohave Power Plant ceased operating,
Terhorst and Berkman analyzed changes
in monitored sulfate concentrations at
the Grand Canyon and calculated the
visibility impacts of those changes
relative to current degraded visibility
conditions. Terhorst and Berkman
incorrectly concluded that the State’s
previous CALPUFF modeling
overpredicted the Mohave Power Plant
visibility impacts because Terhorst and
Berkman failed to compare their results
to natural visibility conditions. EPA
considered and rejected comments on
the proposed BART Guidelines that
visibility impacts should be evaluated to
relative to current degraded visibility
conditions and concluded that ‘‘[u]sing
existing conditions as the baseline for
single source visibility impact
determinations would create the
following paradox: the dirtier the
existing air, the less likely it would be
that any control is required.’’ (70 FR
39124). Because Terhorst and Berkman
failed to compare observed changes in
sulfate concentration to natural
visibility conditions, their analysis does
not support the commenter’s statement
that CALPUFF is unreliable. This flaw
in their analysis has also been
recognized in a paper that responded to
their analysis.122 Finally, as presented
above, the use of the CALPUFF model
122 W.H. White, R.J. Farber, W.C. Malm, M.
Nuttall, M.L. Pitchford, B.A. Schichtel, Comment
on ‘‘Effect of coal-fired power generation on
visibility in a nearby National Park (Terhorst and
Berkman, 2010)’’, Atmospheric Environment 55
(2012) 173–178. doi:10.1016/
j.atmosenv.2012.02.076.
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5121
for regional haze is a settled manner for
which the time for judicial review has
passed.
Comment: The commenter states that
EPA’s own studies document that
CALPUFF overstates results and cites a
May 2012 EPA sponsored study of
CALPUFF that found ‘‘the current and
past CALPUFF model performance
evaluations were consistent with
CALPUFF tending to overestimate the
plume maximum concentrations and
underestimate plume horizontal
dispersion.’’
Response: In the BART Guidance,
EPA recognized concerns that CALPUFF
can overpredict visibility impacts in
some cases, and therefore, as explained
above, adopted the use of the 98th
percentile modeled impact, rather than
the maximum modeled impact, to
address this concern.
Comment: EPA appears to take
contrary positions in Oklahoma, where
it modeled all visibility impairing
pollutants together, and Wyoming,
where EPA said that, based on the
State’s modeling, EPA ‘‘could not
ascertain what the visibility
improvement would be from an
individual NOX or PM control option.’’
Response: It appears that the
commenter has confused (1) whether all
pollutants were modeled together; and
(2) whether all emission reductions
were modeled together. All pollutants
were modeled together both in modeling
performed by Wyoming and by EPA for
BART sources in Wyoming and
Oklahoma, consistent with IWAQM
Phase 2 report recommendations and
with the State of Wyoming modeling
protocol. The additional modeling
performed by EPA was designed to
evaluate visibility improvements from
certain emissions reduction
technologies; specifically, to compare
the incremental benefits of SCR and
SNCR. Each of these model simulations
by EPA also included all other visibility
impairing pollutants, so the approach
used by EPA in Wyoming and
Oklahoma is consistent.
Comment: EPA found that SCR
provided only a 0.36 delta deciview
incremental visibility improvement for
Dave Johnston Unit 3, using EPA
modeling, with an incremental cost of
$7,163.00 per ton. 78 FR 34777–34778.
EPA failed to justify in its proposed rule
how a 0.36 delta deciview
improvement, or approximately onethird that humanly detectible, justifies
the tremendous cost of SCR. Likewise,
EPA found that installing SNCR at Dave
Johnston Unit 4 results in an
incremental 0.11 delta deciview
improvement over Wyoming’s BART
determination at an incremental cost of
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$4,655. 78 FR 34781–34782. The alleged
incremental visibility benefit of
installing SNCR at Wyodak is 0.12 delta
deciview at an incremental cost of
$3,725 per ton. 78 FR 34784–34785.
EPA provides no justification for
requiring such tremendous costs for
such an inconsequential visibility
improvement that likely falls within
CALPUFF’s margin of error. EPA’s
modeling approaches are inconsistent
because EPA has determined in other
states that visibility improvements
greater than those used to justify SNCR
at Wyodak are too small or
inconsequential to justify additional
pollution controls. See 77 FR 24794
(0.27 deciview improvement termed
‘‘small’’ and did not justify additional
pollution controls in New York); 77 FR
11879, 11891 (0.043 to 0.16 delta
deciview improvements considered
‘‘very small additional visibility
improvements’’ that did not justify NOX
controls in Mississippi); 77 FR 18052,
18066 (agreeing with Colorado’s
determination that ‘‘low visibility
improvement (under 0.2 delta
deciview)’’ did not justify SCR for
Comanche units)). Tellingly, the ‘‘low
visibility improvements’’ that Colorado
found at the Comanche units not to
justify post-combustion NOX controls,
as agreed to by EPA, were 0.17 and 0.14
delta deciview. 77 FR 18066. In
Montana, where EPA issued a regional
haze FIP directly, it found that a 0.18
delta deciview improvement to be a
‘‘low visibility improvement’’ that ‘‘did
not justify proposing additional
controls’’ for SO2 on the source. 77 FR
23988, 24012. Here, EPA’s actions
requiring additional NOX controls based
on little to no additional visibility
improvement are arbitrary and
capricious, especially when EPA did not
require additional NOX controls in other
states based on similar visibility
improvements. This is particularly true
in Montana where EPA had direct
responsibility for the regional haze
program.
Response: We disagree that visibility
improvements at Dave Johnston Unit 3
and Wyodak are ‘‘too small or
inconsequential to justify additional
pollution controls.’’ While the visibility
benefits at these units are less than what
is generally considered perceptible (1.0
deciview), they are not so low as to
preclude selection of the associated
controls without any consideration of
the remaining BART factors. The BART
Guidelines are clear that states should
consider visibility impacts that are less
than perceptible: ‘‘Even though the
visibility improvement from an
individual source may not be
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perceptible, it should still be considered
in setting BART because the
contribution to haze may be significant
relative to other source contributions in
the Class I area. Thus, we disagree that
the degree of improvement should be
contingent upon perceptibility. Failing
to consider less-than-perceptible
contributions to visibility impairment
would ignore the CAA’s intent to have
BART requirements apply to sources
that contribute to, as well as cause, such
impairment.’’ 70 FR 39129. When the
visibility improvements are considered,
we continue to find that this level of
improvement, when considered along
with the other statutory factors, justifies
the selected BART controls.
Finally, regarding commenter’s
assertions that we are being
inconsistent, because the commenter is
only specific about visibility
improvement, it is not possible for EPA
to address in this response any specific
concerns. As articulated in our
proposed rulemakings and further
explained in our responses to other
comments, EPA’s partial approval and
partial disapproval of the Wyoming
Regional Haze SIP is consistent with the
CAA, the RHR, BART Rule, and EPA
guidance. Our determinations
considered all five factors, not just
visibility improvement.
Comment: Although it is true that
Wyoming did not model the visibility
impact of SNCR, that fact is no
justification for disapproving
Wyoming’s BART. Nothing in the BART
Guidelines or Wyoming’s BART
Modeling Protocol demands modeling
of SNCR, and EPA points to nothing in
either document that requires modeling
of SNCR.
Response: We disagree with this
comment. The BART selection process
requires a comparison between all
technically feasible control options, not
the evaluation of individual control
technologies in isolation. While the
BART Guidelines do not specify the
order in which control options must be
evaluated (e.g., beginning with the most
stringent or beginning with least
stringent control), they do specify that
the CAA factors must be considered for
all options: ‘‘In the final guidelines, we
have decided that States should retain
the discretion to evaluate control
options in whatever order they choose,
so long as the State explains its analysis
of the CAA factors.’’ 70 FR 39130. The
only exceptions are ‘‘. . . if you find
that a BART source has controls already
in place which are the most stringent
controls available . . .’’, or ‘‘. . . . if a
source commits to a BART
determination that consists of the most
stringent controls available . . .’’ 70 FR
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Frm 00092
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39165. In these situations, it is not
necessary to complete an analysis of all
five BART factors. Therefore, because
neither of these criteria was met, the
State was required to perform an
analysis of all five BART factors for all
technically feasible control options. As
such, the State’s failure to consider the
visibility impacts of SNCR did in fact
serve as appropriate grounds for EPA’s
disapproval of Wyoming’s BART
determination.
Comment: EPA modeling shows no
significant visibility improvement from
SNCR and without a significant
improvement there can be no
justification for disapproving the State’s
BART for Laramie River Station, and, to
the contrary, EPA’s modeling supports
Wyoming’s rejection of SNCR and
choice of LNB/OFA because SNCR
provides negligible visibility
improvement.
Response: We have required new
LNBs with OFA and SCR for the
Laramie River Station, not new LNBs
with OFA and SNCR, which is the
control option addressed by the
commenter. Accordingly, we do not find
that the comment is relevant to our
action. Our revised modeling shows that
the visibility benefit of new LNBs with
OFA and SCR for Laramie River Units
1–3 is 0.57 deciviews, 0.53 deciviews,
and 0.52 deciviews, respectively. We
continue to find that the visibility
benefit, when taking into consideration
the remaining BART factors, justifies
installation of new LNBs with OFA and
SCR.
Comment: Basin Electric submitted
results based on more accurate
modeling than EPA, which show that
actual visibility improvement from
SNCR would be substantially lower than
assumed by EPA. There is no
justification for disapproving
Wyoming’s BART based on a modeled
visibility improvement that is such a
small fraction of what is humanly
perceptible.
Response: As described in response to
other comments, we agree that the
original modeling protocol adopted by
the State was inconsistent with the
BART Guidelines, IWAQM Phase 2
report and newly available ambient
monitoring data, and in our revised
modeling we adopted several of the
changes recommended by this
commenter, including the use of lower
background ammonia concentration, a
correction for ammonia limiting
conditions for multiple units located at
a single BART source, and the use of
Method 8 for the evaluation of visibility
impairment. However, even using these
model options, we still found significant
visibility impacts for SCR control at
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Laramie River. Our results are generally
consistent with the modeling results
submitted by the commenter which also
show significant impacts. As described
in another response, while the visibility
benefits at each of these units
individually are less than what is
generally considered perceptible (1
deciview), they are not so low as to
preclude selection of the associated
controls without any consideration of
the remaining BART factors. The BART
Guidelines are clear that States should
consider visibility impacts that are less
than perceptible because these sources
may still contribute to cumulative
visibility impairment.
Comment: EPA did not assert a failure
to model NOX impacts separately was a
flaw in the Laramie River Station
modeling, although EPA did identify
this as a flaw in PacifiCorp modeling.
Response: We agree that the State
evaluated NOX impacts separately for
the control technologies that the State
included in its modeling, however, the
State did not evaluate SNCR. The other
deficiencies in the State’s visibility
analysis, including the failure to
consider the visibility impacts of SNCR,
were appropriate grounds to disapprove
the State’s BART determination.
Comment: The Wyoming modeling
did in fact isolate the impact on
visibility for NOX control alternatives.
Wyoming held SO2 and PM emissions
constant at baseline levels while
modeling varying NOX emission rates
for each of the NOX control options.
Response: We agree with this
comment. Nonetheless, as stated above,
the other deficiencies in the State’s
visibility analysis, which were
inconsistent with the BART Guidelines,
including the failure to consider the
visibility impacts of SNCR, were
appropriate grounds to disapprove the
State’s BART determination.
Comment: EPA claims that Wyoming
modeled the wrong emission rates. EPA
notes that in its cost analysis it
calculated a new removal efficiency for
NOX control options that was different
than the removal efficiency calculated
by Wyoming, and claims that visibility
modeling should have used the EPA
efficiencies. However, EPA does not
explain how modeling with the different
removal efficiencies conflicts with the
BART Guidelines or the CAA. As to
SNCR, EPA argues that the State
assumed a higher removal efficiency
and thus, paradoxically, modeling with
the State’s removal assumption would
yield greater visibility improvement
than modeling with EPA’s values. No
such modeling was done, however. The
State did no modeling for SNCR, so the
State’s removal efficiency was never
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modeled. It is an enigma how EPA can
disagree with modeling with the
different SNCR removal values when
such modeling was never performed.
Response: We disagree with this
comment. The BART Guidelines are
clear on how removal efficiencies
should be considered in the visibility
evaluation: ‘‘Post-control emission rates
are calculated as a percentage of precontrol emission rates. For example, if
the 24-hr pre-control emission rate is
100 lb/hr of SO2, then the post control
rate is 5 lb/hr if the control efficiency
being evaluated is 95 percent.’’ 70 FR
39170. Therefore, because the control
efficiencies assumed by the State
differed from those found by the EPA,
they affected the calculation of postcontrol emission rates for modeling
purposes (and thereby the consideration
of visibility impacts).
In regard to SNCR, as conceded by the
commenter, the State did not provide
the visibility impacts associated with
the control option. As discussed
elsewhere, failure to assess the visibility
impacts of a technically feasible control
option is in clear conflict with the
requirements of the CAA and BART
Guidelines. This failure alone,
regardless of the control efficiency
assumed for SNCR, was sufficient
grounds for us to reject the State’s BART
determination. Moreover, the incorrect
removal efficiency for SNCR assumed
by the State adversely affected their
analysis of cost of compliance, another
statutorily required BART factor.
To put it simply, the State failed in
the first instance by not considering the
visibility improvement of SNCR as
required by the CAA and BART
Guidelines. When EPA corrected this
deficiency by performing the modeling
ourselves, it was necessary for us to
correct the removal efficiency of SNCR
(as discussed in response to other
comments).
Comment: The State assumed that
SCR would reduce NOX emissions from
0.21 lb/MMBtu to 0.07 lb/MMBtu—a
reduction of 0.14 lb/MMBtu. EPA
assumes SCR would reduce NOX
emissions from 0.19 lb/MMBtu to 0.05
lb/MMBtu, a reduction of the same 0.14
lb/MMBtu. All other things being held
constant, the 0.14 lb/MMBtu reduction
will in both cases yield an identical
reduction in the visibility impairing
concentration of nitrate particulate in a
Class I area.
Response: We disagree with this
comment. The CALPUFF model
simulations estimate the visibility
impairment attributed to the emissions
in each control scenario, not the relative
reduction in different control scenarios.
Therefore, an emissions rate of 0.07 lb/
PO 00000
Frm 00093
Fmt 4701
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5123
MMBtu will have 40% greater total
emissions and a larger visibility impact
than an emissions rate of 0.05 lb/
MMBtu.
Comment: EPA argues that Wyoming
should have used a baseline of the
maximum 24-hour average NOX
emission rate during the baseline years
of 2001–2003, and instead used an
annual average baseline rate. The BART
Guidelines do not mandate the use of
the 24-hour maximum but, rather,
‘‘recommend that the State use the
highest 24-hour average actual emission
rate’’ and that the states should have
flexibility when evaluating the fifth
statutory factor. The BART Guidelines
by their express terms authorize states
to use baseline emissions other than the
24-hour maximum rate. Use of the 24hour maximum baseline is not
mandatory, and not using that baseline
is not a failure to comply with any
requirement in the Guidelines. EPA
itself used annual average pre-control
and post-control emission rates to
model visibility impacts in its Nevada
FIP rulemaking.
Response: We disagree with this
comment. As stated in the preamble to
the BART Guidelines, ‘‘the emissions
estimates used in the [visibility] models
are intended to reflect steady-state
operating conditions during periods of
high capacity utilization.’’ 70 FR 39120.
As such, the BART Guidelines
recommend excluding emissions during
periods of start-up, shutdown, or
malfunction or estimating visibility
impacts based on a source’s allowable
emissions as this could inflate the
visibility impacts of a source. Rather, for
sources such as power plants where
States have information on a source’s
daily emissions, the BART Guidelines
explains that an emission rate based on
a source’s maximum actual emissions
over a 24-hour period is an appropriate
gauge of a source’s potential impact as
it ensures that peak emission conditions
are reflected but would be unlikely to
lead to an overestimation of a source’s
potential impacts. Id. The BART
Guidelines state that in developing a
modeling protocol, States should ‘‘[u]se
the 24-hour average actual emission rate
from the highest emitting day of the
meteorological period modeled (for the
pre-control scenario).’’ Id. and 70 FR
39170.
Wyoming did not do this. Instead, in
assessing the improvement in visibility
associated with the use of controls in its
BART determinations, Wyoming used
the visibility modeling performed by
PacifiCorp and Basin Electric for their
facilities. Although these companies
used very different approaches to
estimating the baseline emission rate—
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neither of which used the 24-hour
average actual emission rate—the State
accepted the visibility modeling done
by both and submitted the results in the
Wyoming SIP. Even if the commenter
were correct that the approach in the
BART Guidelines is only recommended,
the commenter has not provided any
explanation as to why the disparate
approaches used in the Wyoming SIP
were appropriate for estimating the
degree of visibility improvement
associated with controls. Wyoming
similarly provided no explanation as to
why the varying approaches adopted by
Basin Electric and PacifiCorp were
appropriate for assessing visibility
improvement. Moreover, the commenter
has not established that the baseline
emission rates used by Wyoming would
accurately reflect visibility impacts
associated with steady-state operating
conditions during periods of high
capacity utilization. Obviously, baseline
emission rates reflecting periods of
relatively lower capacity utilization
would tend to underestimate peak
visibility impacts. Consider for example
the baseline emission rate used for
Laramie River Unit 1. There, the State
used a daily emission rate equating to
6,320 tons per year,123 while, based on
actual emissions data, the EPA used a
daily rate equating to 8,786 tons per
year.124 Thus, the rate used by the State
reflects a period of considerably lower
capacity utilization that would therefore
tend to underestimate peak impacts.
Regarding the emissions rates used in
the Nevada regional haze SIP, the State
did not use the 24-hour average of
actual emissions from the highest
emitting day in its BART determination
for Reid Gardner Generating Station. 77
FR 50936, 50944 (Aug. 23, 2012). As
part of its review of the Nevada SIP,
EPA performed new visibility modeling.
In that modeling exercise, EPA used
Nevada’s emission rates based on
annual averages. Please refer to a related
comment and response in the final
action for that rule for a full discussion.
See 77 FR 50944). Following our review
of comments in that rulemaking—
including comments that we should
have used the Guidelines maximum 24hour average of emissions in our
visibility modeling—we scaled our
estimates of the visibility impacts of
controls based on the source’s emissions
using the Guidelines maximum 24-hour
average. We took these scaled visibility
123 Wyoming Department of Environmental
Quality Air Quality Division BART Application
Analysis AP–6047, Table 16, May 28, 2009.
124 Air Quality Modeling Protocol: Wyoming
Regional Haze Federal Implementation Plan, U.S.
EPA, Table B.9, January, 2014.
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impacts into account in our final action.
Id. at 50945.
Comment: EPA did not use the 24hour maximum rate for the modeling it
performed in 2012. As noted in Section
VIII.C, it used the same baseline
emission rates used by the State. EPA–
R08–OAR–2012–0026–0037. EPA did
not find the State’s approach was a
violation of the BART Guidelines or was
a reason to disapprove the State’s
modeling or BART determination.
Having sanctioned the use of a different
baseline then, EPA may not now claim
it violates the BART Guidelines or a
ground for disapproving the State’s
modeling or BART determination.
Response: We agree that we did not
use the 24-hour maximum [actual]
emission rates for modeling purposes in
our original proposed rule published in
2012. However, we did not finalize that
rule, at least in part, for the very reason
that the baseline emission rates
calculated by Wyoming, and
subsequently used by EPA in the 2012
proposed rule, were inconsistent with
the BART Guidelines. As we never
finalized the original rule, we disagree
with the commenter’s suggestion that
we somehow sanctioned Wyoming’s
approach. A proposed rule does not
represent final agency action.
Comment: The maximum
improvement modeled by EPA that
would be achieved at any Class I area by
adding SCR to the existing new LNB
plus OFA is 0.5 delta deciview. This is
below the 1.0 delta deciview level often
cited as the lowest level of change that
is humanly perceptible. For EPA to
propose disapproval of the State’s BART
based on an imperceptible improvement
is to propose disapproval based on a
nonmaterial factor.
Response: We disagree that the
visibility improvements for Laramie
River or Jim Bridger are de minimis or
too small to just justify the expense of
requiring controls. As discussed in
response to another comment, the BART
Guidelines are clear that it is not
necessary for the visibility improvement
of a particular control option to be
above the perceptible threshold. The
regional haze program is premised on
the fact that numerous sources are
contributing to visibility impairment
and numerous sources will need to
reduce emissions in order to improve
visibility. We continue to find that this
level of improvement, when considered
along with the other statutory factors,
justifies the selected BART controls.
Comment: The commenter states that
EPA’s modeled visibility improvement
overstates the improvement that would
actually be achieved. The commenter
submitted new modeling showing that
PO 00000
Frm 00094
Fmt 4701
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the visibility improvement from further
reductions of NOX emissions would be
much smaller than that predicted by
EPA. AECOM corrected four of the flaws
in EPA’s modeling and re-ran
CALPUFF. The commenter submitted
refined modeling with four adjustments:
1. The use of seasonal background
ammonia concentrations; 2. Modeling of
all units together with correction for
ammonia limited conditions; 3. Use of
a post-control emission rate of 0.07 lb/
MMBtu, consistent with EPA’s proposed
emission limit; and 4. The use of
CALPOST Method 8. AECOM’s revised
modeling was identical to EPA’s in all
other respects. The refined modeling
predicted that the incremental visibility
benefit of SCR at each of Laramie River
Units 1, 2 and 3 would range between
0.20–0.24 delta deciview at either
Badlands or Wind Cave National Park.
The actual visibility improvement of
SCR would be even less than predicted
by the refined modeling because
CALPUFF is known to substantially
overstate nitrate haze.
Response: We agree that our proposed
modeling was inconsistent with the
BART Guidelines, IWAQM Phase 2
report and monitored data, and in our
revised final modeling we adopted
several of the changes recommended by
this commenter, including the use of
lower background ammonia
concentration, a correction for ammonia
limiting conditions for multiple units
located at a single BART source, and the
use of Method 8 for the evaluation of
visibility impairment. However, even
using these less conservative model
options, we still found significant
visibility impacts for SCR control at the
Basin Electric Laramie River EGUs. We
did not use the seasonal background
ammonia concentration proposed by the
commenter because we did not have
sufficient ambient monitoring data to
determine the seasonal background
concentrations in eastern Wyoming.
Comment: The commenter states that
nitrate haze occurs primarily in the
winter when few visitors are present in
Class I areas. During the peak summer
visitation period, the impact of wildfires
would overwhelm any marginal
visibility improvement that might be
achieved by SCR. The commenter cites
an EPA report that stated ‘‘[A] all else
being equal, impairment from
anthropogenic sources is considerably
more objectionable during times of the
year with greatest visitor attendance
(e.g., summer). Visibility objectives
might, therefore, be stated in terms of
acceptable frequency distributions of
visibility (e.g., contrast) over the course
of a year.’’ Source: Report to Congress
under CAA Section 169A(a)(3). The
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commenter states that these factors
further support Wyoming’s decision to
reject SCR and SNCR as BART. These
technologies would not improve
visibility on the worst haze days
because Laramie River doesn’t
contribute to haze on those days, and
any slight visibility improvement would
occur in the winter season when few
visitors enter the Class I areas.
Wyoming’s decision to reject SCR as
BART is therefore reasonable and
complies with the CAA.
Response: As discussed in response to
another comment, EPA agrees that
nitrate impacts are more dominant in
the winter. Nonetheless, daily nitrate
impacts from April through October are
not trivial. EPA also agrees that the
BART Guidelines allow states to
consider the timing of impacts in
addition to other factors related to
visibility impairment. However, states
are not required to do so, and EPA is not
required to substitute a source’s desired
exercise of discretion for that of the
states. Furthermore, when promulgating
a FIP, EPA stands in the shoes of the
state. In that capacity, EPA is not
required to consider the seasonality of
impacts and has chosen not to do so
here. Taking into account visitation
contradicts the goal of the regional haze
rule of improving visibility on the 20
percent best and worst days. Indeed,
EPA believes that the experiences of
visitors who come to Class I areas
during periods other than the peak
visitation season are important and
should not be discounted.
Comment: We received comments
that our FIP was not warranted because
the cause of visibility impairment
during the times of peak visitation was
wildfires and thus does not justify the
control of NOX from stationary sources.
Response: See response above.
Comment: Ammonia levels at the
altitude of the plume would be lower
than the reported surface level ammonia
concentrations, so less ammonia would
be available to form visibility-impairing
nitrate.
Response: We disagree that there is
compelling evidence that background
ammonia levels are significantly
different at the altitude of the plume
compared to the surface. While there are
limited studies showing vertical
gradients of ammonia in the
troposphere,125 these studies do not
show a strong gradient within the
planetary boundary layer where the
plume is typically located. Moreover, as
discussed in the response to another
125 Levine et al., (1980) The Vertical Distribution
of Tropospheric Ammonia, Geophys. Res. Letters,
vol. 7, No. 5, 17–32.
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comment, it is necessary to evaluate the
combined concentrations of gas
ammonia and particulate ammonium to
estimate the background ammonia level,
so vertical gradients in measured
ammonia alone are not sufficient to
specify the vertical gradient in
background ammonia. It is possible that
decreasing temperature with altitude
could affect the thermodynamic
equilibrium between gas ammonia and
particulate ammonium and that this
could contribute to observed vertical
gradients in ammonia. It is also possible
that dry deposition of ammonia at the
surface could create a negative vertical
gradient in ammonia near the surface.
We recognize that there are limited
measurement studies available for total
gas ammonia and particulate
ammonium, and as a result there is
uncertainty in the estimate of
background ammonia. Given this
uncertainty, we believe it is appropriate
to rely on measurement studies of total
gas ammonia and particulate
ammonium when available and reliable
as explained elsewhere in this
document (along with the IWAQM
Phase 2 report default values), and to
rely on the IWAQM Phase 2 report
where monitoring data are not available.
Comment: The commenter states that
inventories show very low ammonia
concentrations in the corridors between
Laramie River Station and the relevant
Class I areas.
Response: We disagree with the
commenter’s assertions. We note that
there is large uncertainty in estimates of
ammonia emissions inventories that are
based on source activity data and
emissions factors. Moreover, even when
more certain estimates of ammonia
emissions are available, it is not
possible to estimate ambient ammonia
concentrations based on emissions
inventory data alone. An estimate of
ambient ammonia levels would require
an evaluation of modeled emissions
data and the effects of transport,
dispersion and removal of ambient
ammonia. Direct measurements of
ambient concentrations of gas ammonia
and particulate ammonium provide a
more reliable estimate of background
ammonia than do model simulations of
the emissions, transport, dispersion and
removal of ammonia.
Comment: The commenter states that
reliable ammonia measurements from
the IMPROVE monitor located in the
Wind Cave National Park were
published in September 2012. Chen et
al, available at AECOM Report. This
monitor provides actual ground level
ammonia data that is representative of
the Class I areas that are relevant to
Laramie River Station. AECOM Report
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5125
at 4. EPA has given no explanation for
its assumption of a constant 2.0 ppb
background concentration in this case.
Response: We evaluated the ammonia
and ammonium monitoring data
submitted by the commenter in Exhibit
6, which is an extended abstract
presented at the 2010 conference in
Whitefish, MT.126 The data are from a
pilot study conducted from April 2011
to January 2012 designed to measure
total NHX as the sum of ammonia and
particulate ammonium at 9 IMPROVE
sites. The pilot study includes data for
IMPROVE monitoring sites at Wind
Cave and Rocky Mountain National
Park, which are Class I areas for which
we evaluated visibility impacts in this
action. We note that the pilot study data
are for less than one full year and are
plotted in Figure 1 of the report as
monthly average concentrations. The
measured values of NHX are not
reported, but the plot does show
seasonal variation in NHX
concentrations, as expected, with higher
NHX concentrations in summer and
lower concentrations in winter. Annual
average NHX concentrations cannot be
estimated from the plot itself, but they
appear to be approximately consistent
with the default IWAQM ammonia
background concentration of 0.5 ppb for
forested areas. Given that both the
Rocky Mountain and Wind Cave Class
I areas have significant forest cover, the
measurements in the pilot study appear
to be consistent with the IWAQM Phase
2 report.
Measurements of NHx are not reported
for Badlands National Park, which is a
mix of bare rock and mixed-grass prairie
ecosystems. Based on the IWAQM Phase
2 report, default background ammonia
concentrations in the range of 1 to 10
ppb at 20 degrees Celsius would be
appropriate for this region. We reviewed
the ambient ammonia monitoring data
on which the IWAQM Phase 2 report
was based, and the data for grasslands
were largely based on measurements at
Pawnee National Grassland, where
average ammonia levels in summer were
10 ppb. Because the Pawnee National
Grassland is located close to large
agricultural and livestock ammonia
sources in eastern Colorado, it is
uncertain if the same ammonia levels
would be appropriate for the more
Badlands area. Therefore, we selected a
background ammonia concentration of 1
ppb for CALPUFF modeling of BART
sources that impact the Wind Cave and
Badlands Class I areas.
126 Chen et al., A Pilot Monitoring Study of
Atmospheric NHX at Selected IMPROVE sites
AWMA Aerosol and Atmospheric Optics, Visibility
& Air Pollution Conference, September 24–28, 2012,
Whitefish, MT.
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Comment: The commenter states that
if EPA uses the maximum 24-hour NOX
emissions rate when modeling baseline
visibility impacts, it should also use the
maximum 24-hour SO2 and PM10
emissions rates for the baseline. NOX
competes with SO2 for ammonia to
make either ammonium nitrate or
ammonium sulfate. Setting the SO2
baseline rate at a low concentration
relative to NOX skews the model to
predict the formation of more
ammonium nitrate and less ammonium
sulfate. This magnifies the modeled
benefits of reducing NOX emissions.
Response: We agree that we did not
use the maximum [actual] 24-hour
emission rates for SO2 and PM10 as we
did for NOX. However, we have not
found based on our analysis, and the
commenter has not established, that
doing so had any material impact on the
modeled benefits associated with NOX
controls. The BART sources in
Wyoming that are covered in this action
are subject-to-BART only for NOX and
PM. In addition, we considered
comments on, but did not question the
validity of the State’s BART analyses for
PM. In fact, as explained in detail
elsewhere in this document, with
respect to the State’s PM BART
determinations, the State’s SIP and
existing information was adequate to
find that the PM BART determinations
were reasonable. Accordingly, the
purpose of our modeling effort was to
identify the visibility improvement
associated with NOX controls, not SO2
or PM controls. And so, in evaluating
the visibility of NOX controls, we held
the SO2 and PM emissions constant at
the rate associated with the ‘‘committed
controls’’ identified by the State.
Therefore, even if there was a
discernible impact on the modeled
visibility benefit of NOX controls related
to our treatment of modeled emission
rates for SO2 and PM, it would be
common to all of the modeled NOX
control scenarios and would not have
favored one control option over another.
Comment: The visibility improvement
from SCR will be much less than EPA
claims. The modeling preformed by
AECOM and Wyoming produced similar
results, and both predicted much less
visibility improvement than EPA.
Response: The modeling performed
by Wyoming used the 2 ppb background
concentration that was established in
the State’s protocol, and this resulted in
model visibility impacts that were
significantly greater than those
estimated by AECOM in its modeling
using lower, seasonally varying
background ammonia concentrations.
The ammonia concentrations in ppb
used in the AECOM modeling for the
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months of January December were as
follows: 0.3, 0.9. 0.9, 1.0, 1.0, 2.0, 2.0,
1.0, 0.8, 0.8, 0.6, and 0.3. We note that
our modeling results in our original
proposal also used the State’s protocol,
and our model results were identical to
the State’s modeling results for the
emissions scenarios that both the State
and EPA evaluated. The EPA modeling
results in our revised proposal showed
larger visibility impacts because we
corrected the baseline emissions rates to
make the emissions consistent with the
BART Guidance. In the new modeling
results that we performed using our
revised final EPA Protocol and included
in this action, we used a model
configuration that is generally
consistent with modeling submitted by
the commenter. The revisions to the
protocol include reduced background
ammonia, correction for ammonia
limiting conditions, updated regulatory
versions of the model, and the use of
Method 8. The commenter did not
submit model results for all emissions
scenarios in a format that can be directly
compared to our tabulated model
results, but our revised model results in
this action appear to be generally
consistent with the commenter’s model
results, and these results do show that
SCR at Basin Electric Laramie River has
appreciable visibility benefit at the
Wind Cave and Badlands Class I areas.
Comment: The commenter states that
the version of CALPUFF used by
Wyoming and EPA (version 5.711a)
relies on simplified chemistry
algorithms that overstate nitrate
formation and overpredict visibility
impacts, and that EPA acknowledges
that ‘‘the simplified chemistry in the
[CALPUFF] model tends to magnify the
actual visibility effects of [a] source.’’ 70
FR 39121. Papers by Morris et al. and
Karamchandani et al. show that
CALPUFF chemistry overpredicts
nitrates by a factor of 2-to-4 times in
winter.
Response: As described in responses
to other comments and in our modeling
protocol, EPA used the currently
approved CALPUFF version 5.8 for
modeling used in this action. EPA has
acknowledged in the BART Guidelines
that there is uncertainty in the
CALPUFF modeled visibility impacts.
EPA recognized the uncertainty in the
CALPUFF modeling results when EPA
made the decision, in the final BART
Guidelines, to recommend that the
model be used to estimate the 98th
percentile visibility impairment rather
than the highest daily impact value.
While recognizing the limitations of the
CALPUFF model in the BART
Guidelines Preamble, EPA concluded
that, for the specific purposes of the
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Regional Haze Rule’s BART provisions,
CALPUFF is sufficiently reliable to
inform the decision making process.
Comment: The commenter states that
a study by the CDPHE showed model
results for nitrates will be skewed high
by assuming higher than actual
background levels of ammonia.
Response: The CDPHE completed a
CALPUFF model sensitivity study that
evaluated the effect of the background
ammonia concentration on model
predictions for ammonium nitrate and
sulfate. The CDPHE found that
CALPUFF model predicted nitrate was
insensitive to variations in background
concentrations greater than 10 ppb and
became progressively more sensitive to
background ammonia as it was reduced
from 10 to 0 ppb.127 We note that
CDPHE performed a sensitivity study
but did not evaluate model performance
and did not identify any particular case
in which model performance was
skewed by the use of inappropriate
background ammonia concentrations.
The conclusions of the CDPHE study are
fully consistent with the IWAQM Phase
2 report, which also recognized that
accurate specification of background
ammonia ‘‘is critical to the accurate
estimation of particulate nitrate
concentrations.’’ 128
Comment: The commenter cites
several presentations and studies that
document flaws in CALPUFF’s sulfate
and nitrate chemistry: (1) It is out of
date, overly simplistic, and inaccurate;
(2) CALPUFF greatly overstated sulfate
and nitrate in winter, overestimating
visibility impacts by 100–1000% in
many cases; and (3) that the model
understated sulfate in summer; and that
nitrate predictions were particularly
inaccurate, overstated, and unreliable.
Response: EPA recognized the
uncertainty in the CALPUFF model
when EPA made the decision, in the
final BART Guidelines, to recommend
that the model be used to estimate the
98th percentile visibility impairment
rather than the highest daily impact
value. While recognizing the limitations
of the CALPUFF model in the BART
Guidelines, EPA concluded that, for the
specific purposes of the RHR’s BART
provisions, CALPUFF is sufficiently
reliable to inform the decision making
process.
Comment: NOX emissions control has
little visibility benefit during summer
when visibility impairment is
dominated by wildfires.
Response: EPA agrees that nitrate
impacts are more dominant in the
winter. The CALPUFF model results are
127 CDPHE,
Ibid.
page 14 and page 21
128 IWAQM,
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consistent with these observations, with
the largest modeled visibility
improvements occurring from late fall to
early spring. NOX emissions are
precursors to ammonium nitrate, and
high concentrations of ammonium are
typically observed from late fall to early
spring when cold temperatures and high
relative humidity results in
thermodynamic conditions that favor
the formation of ammonium nitrate.
Observed ammonium nitrate
concentrations are typically low during
summer because warm temperatures
result in thermodynamic conditions that
are not favorable to the formation of
ammonium nitrate. Nonetheless, there
may be higher nitrate concentrations on
colder days during this period.
Comment: EPA’s visibility-benefits
analysis still is constrained in the reproposed Wyoming haze plan because
EPA has not identified the visibility
benefits from BART controls across all
of the Class I areas affected by hazecausing pollutants from Wyoming
sources. Wyoming EGUs impact
visibility over at least 18 Class I areas.
While EPA’s own visibility modeling
fully supports determinations that SCR
is BART for all Wyoming EGUs, the
visibility benefits of SCR across all
affected Class I areas are cumulatively
significant and, if the RHR’s
fundamental purpose is to be fulfilled,
they must not be ignored.
Response: EPA disagrees with this
comment. The commenter’s number of
‘‘at least 18 Class I areas’’ is derived by
including Class I areas that are more
than 300 km from BART sources. EPA
disagrees that these Class I areas should
be included in the visibility analysis.
The IWAQM Phase 2 report reviewed
model performance evaluations of
CALPUFF as a function of distance from
the source and concluded that:’’Based
on the tracer comparison results
presented in Section 4.6, it appears that
CALPUFF provides reasonable
correspondence with observations for
transport distances of over 100 km. Most
of these comparisons involved
concentration values averaged over 5 to
12 hours. The CAPTEX comparisons,
which involved comparisons at
receptors that were 300 km to 1000 km
from the release, suggest that CALPUFF
can overestimate surface concentrations
by a factor of 3 to 4. Use of the puff
splitting option in CALPUFF might have
improved these comparisons, but there
are serious conceptual concerns with
the use of puff dispersion for very longrange transport (300 km and beyond).
As the puffs enlarge due to dispersion,
it becomes problematic to characterize
the transport by a single wind vector, as
significant wind direction shear may
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well exist over the puff dimensions.
With the above thoughts in mind,
IWAQM recommends use of CALPUFF
for transport distances of order 200 km
and less. Use of CALPUFF for
characterizing transport beyond 200 to
300 km should be done cautiously with
an awareness of the likely problems
involved.’’ 129 We present additional
discussion of this issue in our response
to the following comment.
Comment: EPA arbitrarily failed to
model visibility impacts of the various
control options at all affected Class I
areas, including those that are beyond
300 km from the source. EPA recently
responded to a similar comment in its
final action promulgating the Montana
Regional Haze FIP, 77 FR 57864, for the
first time supporting its truncated
modeling by referencing a nowdiscredited 1998 report regarding
CALPUFF performance. Because EPA
raised this issue only after the close of
the public comment period on its
Wyoming regional haze action, EPA
should consider the Conservation
Organizations’ response. See 42 U.S.C.
7607(d)(4)(B)(i).
In its response to public comments on
the Montana FIP, EPA stated, ‘‘The
Interagency Workgroup on Air Quality
Modeling (IWAQM) Phase 2 report
(EPA, 1998) reviewed model
performance evaluations of CALPUFF as
a function of distance from the source
and concluded that: . . .[u]se of
CALPUFF for characterizing transport
beyond 200 to 300 km should be done
cautiously with an awareness of the
likely problems involved.’’ 77 FR
57867–68. EPA then concludes,
‘‘[t]herefore, given that the IWAQM
guidance provides for the use of the
CALPUFF model at receptor distances
of up to 200 to 300 km, and given that
EPA has already addressed uncertainty
in the CALPUFF model, we believe it is
reasonable to use CALPUFF to evaluate
visibility impacts up to 300 km.’’ Id. at
57868.
We agree that CALPUFF is reliable at
distances of 300 km. However, EPA’s
use of the IWAQM Phase 2 report to
support its decision to exclude
modeling at distances beyond 300 km is
arbitrary. First, changes to CALPUFF
since 1998 may correct problems
identified in the IWAQM Phase 2 report
with modeling accuracy in the 200–
1,000 km range. Second, a more recent
study prepared for EPA called into
question the conclusions of the IWAQM
Phase 2 report upon which EPA relies.
See Long Range Transport Models Using
Tracer Field Experiment Data (May
2012) (EPA Contract No: EP–D–07–102,
129 IWAQM,
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Work Assignment No: 4–06). The May
2012 study concluded that ‘‘The
inability of most (∼90%) of the current
study’s CALPUFF sensitivity tests to
reproduce the 1998 EPA study tracer
test residence time on the 600 km
receptor arc is a cause for concern.’’ Not
only were the authors of the May 2012
study unable to reproduce the 1998
study’s findings that CALPUFF
overestimated pollutant concentrations
at distances of 600 km, the 2012 study
concluded that CALPUFF actually
underestimates average pollutant
concentrations at 600 km. Accordingly,
reliance on CALPUFF at long distances
would result in conservative estimates
of visibility impacts. It is not
appropriate to assume, as EPA
effectively did in its Wyoming proposal,
that such impacts are non-existent.
EPA’s failure to model and consider
visibility impacts at all affected Class I
areas, including those beyond 300 km,
is not supported.
Because the RHR, and SIPs and FIPs
promulgated to implement it, are to
fulfill CAA requirements to mitigate and
ultimately eliminate anthropogenic
sources of haze pollution at all Class I
national parks and wilderness areas, it
is imperative that states and EPA use
models to completely and accurately
depict the visibility impact of a source
to the region’s Class I areas as well as
projected benefits from BART. In this
regard, the conclusion of the May 2012
study that CALPUFF reliably (if
conservatively) identifies visibility
impacts to Class I areas beyond those
previously evaluated are critical, and
directs EPA to supplement the
incomplete analysis presented in its
proposed action on the Wyoming
Regional Haze plan with additional
modeling, or consider the more
complete modeling submitted by the
conservation organizations with their
August 2, 2012 comments.
Response: EPA disagrees with the
commenter’s assertion that changes to
CALPUFF now support modeling at
distances greater than 300 km. The
commenter cited a May 2012 technical
evaluation (Documentation of the
Evaluation of CALPUFF and Other Long
Range Transport Models Using Tracer
Field Experiment Data 130) that
evaluates several long range transport
models based on several tracer studies.
The report cited by the commenter does
not refute the IWAQM Phase 2 report
which states that ‘‘IWAQM recommends
use of CALPUFF for transport distances
of order 200 km and less. Use of
CALPUFF for characterizing transport
130 http://www.epa.gov/scram001/reports/EPA454-R-12-003.pdf.
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beyond 200 to 300 km should be done
cautiously with an awareness of the
likely problems involved.’’ 131 In fact,
the May 2012 report further
‘‘emphasizes the need for a standardized
set of options for regulatory CALPUFF
modeling.’’ 132 Given these findings,
EPA does not agree, as the commenter
asserts, that it must consider CALPUFF
modeling results from Federal Class I
areas beyond 300 km. EPA therefore
believes that the results of CALPUFF
modeling beyond 300 km of the source
should be evaluated in light of the
limitations discussed in the two
guidance documents cited above.
Finally, we disagree that there is any
notice issue with respect to the
commenter’s allegations that EPA
referenced the 1998 IWAQM study for
the first time in our response to
comments in our Montana FIP action.
As quoted above, the BART guidelines
specifically reference the 1998 IWAQM
study with respect to CALPUFF settings.
Comment: EPA modeled visibility
benefits at four Class I areas, and
demonstrated visibility improvement
due to SCR that approximately doubled
the improvement afforded by SNCR at
every Class I area modeled. 78 FR
34775–34776. EPA properly took
account of the cumulative visibility
improvement across all four modeled
Class I areas for each unit, id. at 34776,
but in fact, as the Conservation
Organizations commented previously,
see 8/2/2012 Conservation Organization
Comments, SCR affords visibility
benefits across at least six Class I areas.
Thus, the cumulative visibility benefits
are even greater than found by EPA, and
further support a determination that
SCR is BART for Laramie River Station
Units 1–3.
Response: We disagree that we should
have evaluated visibility impacts at all
of the areas that the commenter
considered in its analysis. The
commenter provided CALPUFF model
results at 18 areas, including areas that
are not mandatory Class I areas, and at
Class I areas at distances greater than
300 km from Laramie River Station. In
our analysis of visibility impacts, we
considered the visibility improvement
at four Class I areas within 300 km of
the Laramie River Station. Therefore,
our modeling analyses did not ignore
the visibility improvement that would
be achieved at areas other than the most
impacted Class I area, and we disagree
with the assertion that we should have
131 http://www.epa.gov/scram001/7thconf/
calpuff/phase2.pdf, page 18.
132 http://www.epa.gov/scram001/reports/EPA454-R-12-003.pdf, page 10.
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evaluated all of the areas that the
commenter considered.
Comment: EPA’s re-proposed
Wyoming haze plan presents a unit-byunit analysis of the visibility benefits of
the installation of various BART control
alternatives at Wyoming EGUs, and
identifies benefits at only a subset of the
affected Class I areas. However, EPA did
not present evidence of the cumulative
visibility benefits that would be enjoyed
by Class I areas from implementation of
all of the BART determinations in its
2013 re-proposal. To assess this
shortcoming, the Conservation
Organizations contracted with Howard
Gebhart to conduct a cumulative
visibility improvement modeling
analysis that compared installation of
the NOX BART determinations found in
EPA’s 2013 re-proposal versus the State
BART determinations found in the
Wyoming Regional Haze SIP. See
Gebhart Report, at 17–24. Mr. Gebhart’s
visibility modeling results show that
installation of the BART determinations
in EPA’s 2013 re-proposal will result in
significant visibility improvement at
numerous Class I areas when compared
to the Wyoming SIP. For example,
installation of the BART determinations
in EPA’s 2013 re-proposal would
consistently result a total deciview
improvement of 1.0 deciview or greater
over the Wyoming SIP at Badlands
National Park, Savage Run Wilderness,
and Wind Cave National Park. In
addition, significant visibility
improvements exceeding 0.5 deciviews
were predicted at Badlands National
Park, Bridger Wilderness, Mount Zirkel
Wilderness, Rawah Wilderness, Rocky
Mountain National Park, Savage Run
Wilderness, and Wind Cave National
Park. In summary, the Conservation
Organizations’ cumulative visibility
improvement modeling analysis
provides further support that significant
visibility benefits can be achieved from
the finalization of the BART
determinations contained in EPA’s 2013
re-proposal. EPA’s 2013 re-proposed
rule advances (without entirely
fulfilling) the goals of the regional haze
program to reduce visibility impairment
using BART during the first regional
haze five-year planning period. In
contrast, the Wyoming Regional Haze
SIP would fall far short of these goals.
Response: First, we note that the
modeling performed by the
Conservation Organizations’ contractor
used the 2 ppb background ammonia
concentration, and did not correct the
model results for ammonia limiting
conditions, and therefore predicts
greater visibility impairment than did
EPA’s revised modeling. EPA provided
information about the visibility
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improvement modeled for different
BART scenarios at multiple Class I areas
within 300 km of each BART source.
EPA primarily relied on the benefits at
the area with the greatest visibility
improvement from controls, but we also
considered the cumulative impacts and
benefits at multiple Class I areas. EPA
agrees that considering cumulative
visibility benefits by aggregating the
expected improvement from over
multiple Class I areas is a useful metric
that can further inform a BART
determination. Such an approach can be
useful, for example, in simplifying a
complex array of visibility impacts,
especially where a source has
significant impacts on multiple Class I
areas.
Comment: EPA’s proposed rule fails
to present the cumulative visibility
benefits of installation of SCR at
Wyoming’s EGUs. Instead, EPA only
presents the visibility benefits for a
single Class I area per source (Wind
Cave National Park for all sources
except the Jim Bridger plant (Mount
Zirkel Wilderness Area)). The
cumulative impact of a source’s
emissions on visibility as well as the
cumulative benefit of emission
reductions is a necessary consideration
as part of the fifth-step in the BART
analysis. The statutory direction and
goal of the regional haze program is to
remedy any existing impairment of
visibility in mandatory Class I areas. 42
U.S.C. 7491(1). The implementing
regulations plainly anticipate the need
to reduce impacts in multiple Class I
areas, including those outside a state’s
borders, and the obligation to assess
what is necessary to do so. 40 CFR
51.308(d)(3). Further, states are required
to establish reasonable progress goals for
each Class I area, not just the one most
impacted by a single source. Id. section
51.308(d)(1). EPA’s own regional haze
guidance document states that a
cumulative visibility benefit analysis is
generally consistent with the CAA. 70
FR 39105, 39107 (we believe that a
State’s decision to use a cumulative
analysis at the eligibility stage is
consistent with the CAA); 40 CFR Part
51, App Y. While the Guidelines also
contemplate and even allow analysis of
only the most impacted Class I area,
such an analysis contradicts the regional
approach towards the restoration of
visibility. Moreover, given the number
of Class I areas impacted by Wyoming
sources, it is illogical and baseless to
fictitiously limit the spectrum of source
impact and emission control benefit.
Based upon the guidance and the
requirements of the CAA, the
cumulative impact of a source’s
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emissions on visibility, as well as the
cumulative benefit of emission
reductions, should be considered as part
of the fifth-step in the BART analysis.
The FLMs, too, have urged EPA Region
8 to consider the cumulative visibility
benefits of requiring stricter controls on
BART-eligible units in Montana. For
example, at a public meeting in Billings,
regarding the Montana Regional Haze
SIP, Valerie Naylor, Superintendent of
Theodore Roosevelt National Park
stated, ‘‘EPA placed too much emphasis
on incremental costs and incremental
benefits, while eliminating
consideration of cumulative benefits
that would be realized in the numerous
Class I National Parks, National Wildlife
Refuges, and Wilderness Areas
impacted by Colstrip.’’ The National
Park Service (NPS) has consistently
requested that cumulative visibility
benefit analyses be conducted in other
regional haze determinations. In
addition, EPA must consider the
cumulative visibility benefit of BART
controls on multiple units of a single
source. EPA’s BART guidelines make
clear that states must consider
emissions from an entire source in
determining whether a source is subject
to BART, and further clarify that
multiple units at a single utility
constitute a single source. 40 CFR Part
51, App Y, sect. II.A.
The Conservation Organizations
retained Air Resource Specialists, Inc.
(ARS) to evaluate the cumulative
visibility impact of NOX BART controls,
and found that the cumulative benefit of
SCR at all Wyoming BART-subject EGUs
is very significant. In conducting its
supplementary modeling, ARS used an
SCR-controlled NOX emission rate to
0.05 lb/MMBtu to reflect the level of
control achievable with SCR and
recalculated baseline emissions to
comply with the BART guidelines, as
described in sections I.A.2 and I.C.
Otherwise, ARS employed the same
assumptions used by EPA in its
analysis.
ARS’s visibility modeling addresses
impacts to 18 Class I areas, including
Savage Run Wilderness Area (which is
not a mandatory Class I area but is
managed as such by Wyoming). The
ARS report addresses the cumulative
benefit of installation of SCR at multiple
units at a single power plant location
(ex. the cumulative benefits of
installation of SCR at all four Bridger
units). The ARS Report also calculates
the cumulative visibility benefit of
installation of SCR on all BART units in
Wyoming. Id. It should not be assumed
that ARS’s results document the highest
impacts. Rather, they are presented to
demonstrate widespread and far-
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reaching visibility impacts and
improvements that can be achieved
through the use of SCR.
The cumulative visibility benefit from
installation of SCR on all BART units in
Wyoming is significant. The application
of SCR control on Wyoming’s subject-toBART emission units is predicted to
improve worst-case visibility
impairment by up to 8 deciviews at the
Savage Run Class I area, with 4
deciviews of improvement or better at
six Class I areas. ARS Report, Table 3–
13. For the 98th percentile day, the
improvement after SCR emissions
control at all Wyoming BART-subject
EGUs is as high as 3.5 deciviews at
Wind Cave National Park. Id. At least
six different Class I areas show
improvement of 3 deciviews or more
based on the 98th percentile day after
SCR emissions control at all Wyoming
BART-subject EGUs. Id.
SCR controls at Wyoming’s subject-toBART units are also predicted to
significantly reduce the number of days
with visibility impacts above 0.5
deciview and 1.0 deciview compared to
baseline emissions scenario. Over all 18
Class I areas modeled, the cumulative
improvement from application of SCR
on all Wyoming BART-subject EGUs is
721 fewer days with visibility
impairment exceeding 0.5 deciview and
595 fewer days with visibility
impairment exceeding 1.0 deciview. Id.,
Table 3–14. These improvements are
relatively uniformly distributed across
the seven Class I areas most impacted by
Wyoming’s subject-to-BART EGUs:
Badlands National Park, Bridger
Wilderness Area, Mt. Zirkel Wilderness
Area, Rawah Wilderness Area, Rocky
Mountain National Park, Savage Run
Wilderness Area, and Wind Cave
National Park.
Response: As described in another
response, EPA did not limit its analysis
of visibility impairment to a single Class
I area. We evaluated visibility
impairment from each BART source at
multiple Class I areas. We presented the
results for each Class I area, and we
considered the visibility impairment at
multiple Class I areas in our BART
determination. The estimates of
visibility impairment presented by the
commenter relied on an overly
conservative estimates of background
ammonia concentrations, and therefore
are likely to overestimate cumulative
visibility benefits.
In regard to the comment concerning
the cumulative visibility benefit of
BART controls on multiple units at a
single source, see the response to a
subsequent comment below.
Comment: It is appropriate to
consider both the degree of visibility
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5129
improvement in a given Class I area as
well as the cumulative effects of
improving visibility across all of the
Class I areas affected. If reducing
emissions from a BART source impacts
multiple Class I areas, then a BART
determination should incorporate those
benefits. It is not justified to evaluate
impacts at one Class I area, while
ignoring others that are similarly
significantly impaired by the BART
source. If emissions from the BART
source are reduced, the benefits will be
spread well beyond only the mostimpacted Class I area, and these benefits
are an integral part of the BART
determination. The BART Guidelines
attempt to create a workable approach to
estimating visibility impairment. The
Guidelines do not attempt to address the
geographic extent of the impairment,
but in effect assume that all Class I areas
are created equal, i.e., widespread
impacts in a large Class I area and
isolated impacts in a small Class I area
are given equal weight for BART
determination purposes. To address the
problem of geographic extent, we look at
the cumulative impacts of a source on
all Class I areas affected, as well as the
cumulative benefits from reducing
emissions. While there may be more
sophisticated approaches to this
problem, we believe that this is the most
practical, given current modeling
techniques and information available.
Response: Contrary to the
commenter’s assertion, we did assess
cumulative visibility impacts for
multiple Class I areas. In our analysis of
visibility impacts, we considered the
visibility improvement at multiple Class
I areas within the 300 kilometers of the
modeling domain. For example, in our
analysis of BART control options for
Naughton, we considered the visibility
improvement at seven Class I areas
(Bridger Wilderness Area, Fitzpatrick
Wilderness Area, Grand Teton National
Park, North Absaroka Wilderness Area,
Teton Wilderness Area, Washakie
Wilderness Area, and Yellowstone
National Park).
Therefore, our proposed rule did not
ignore the visibility improvement that
would be achieved at areas other than
the most impacted Class I area, and we
disagree with the assertions that we did
not consider the impacts at multiple
Class I areas. In the proposed rule, we
did however focus on the visibility
benefits at the most impacted Class I
area.
Comment: EPA has incorrectly
estimated visibility improvement from
all NOX control options at the Laramie
River Station. Wyoming DEQ evaluated
visibility improvements at the two
nearest Class I areas and reported the
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‘‘The cumulative visibility improvement
for SCR, as compared to LNB/OFA,
across Wind Cave National Park and
Badlands National Park (based on the
98th percentile modeled results) was
0.52–0.54 delta deciview for each of the
three units.’’ EPA R8 evaluated the five
closest Class I areas but reported results
for only the Wind Cave National Park.
Response: As described in a previous
response, in our analysis of visibility
impacts, we considered the visibility
improvement at four Class I areas within
300 kilometers of Laramie River.
Modeling results for all Class I areas
considered for each BART source for the
re-proposal were available to the public
during the comment period upon
request. (See ‘‘Summary of EPA’s
Additional Visibility Improvement
Modeling’’). Therefore, our proposed
rule did not ignore the visibility
improvement that would be achieved at
areas other than the most impacted
Class I area, and we disagree with the
assertions that we did not consider the
impacts at multiple Class I areas. In the
proposed rule, we did however focus on
the visibility benefits at the most
impacted Class I area.
Comment: EPA rejected Oklahoma’s
visibility analyses which ‘‘relied upon
pollutant specific modeling to evaluate
the benefits from the use of available
SO2 emission controls.’’ 76 FR 81728,
81740. Rather, EPA modeled in
Oklahoma ‘‘all visibility impairing
pollutants to fully assess the visibility
improvement anticipated from the use
of controls.’’ EPA argued this modeling
took into account ‘‘the complexity of
atmospheric chemistry and chemical
transformation among pollutants.’’ In
Wyoming, EPA noted that Wyoming
provided ‘‘visibility improvement
modeling results that combine[d] the
visibility improvement from NOX, PM
and SO2 control options’’ and that ‘‘EPA
could not ascertain what the visibility
improvement would be from an
individual NOX or PM control option.’’
77 FR 33031. EPA appears to take
contrary positions in Oklahoma and
Wyoming. EPA’s inconsistent positions
are arbitrary and capricious.
Response: As described in a response
to a previous comment, it appears that
the commenter has confused (1)
whether all pollutants were modeled
together; and (2) whether all control
technologies were modeled. All
pollutants were modeled together both
in modeling performed by Wyoming
and by EPA for BART sources in
Wyoming and Oklahoma, consistent
with IWAQM Phase 2 report
recommendations. The additional
modeling performed by EPA was
designed to evaluate visibility
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improvements from certain emissions
reduction technologies. Each of these
simulations also included all other
visibility impairing pollutants, so the
approach used by EPA in Wyoming and
Oklahoma is consistent.
Comment: We are concerned about
the emissions modeled by EPA as
presented in the ‘‘Summary of EPA’s
Additional Visibility Improvement
Modeling.’’ For example, sulfuric acid
mist (H2SO4) emissions from each
PacifiCorp unit are assumed to double
from the baseline and control scenarios
that do not include SCR versus
scenarios with SCR. The only
explanation provided by EPA is that
‘‘the emission rate for . . . total sulfate
rates were increased to account for the
additional production that results from
SCR controls.’’ EPA’s approach in
Wyoming is not consistent with its
approach elsewhere. For example, in its
modeling analysis of addition of SCR at
Colstrip Units 1 and 2 in Montana, EPA
assumed no additional sulfate emissions
from the addition of SCR.
Because H2SO4 must be reported as a
hazardous air pollutant, the Electric
Power Research Institute has developed
a widely-accepted method for
estimating those emissions. Our
analyses indicate a two-orders-ofmagnitude overestimation by EPA of
these visibility-impairing emissions,
which results in an underestimation of
the visibility benefit of adding SCR.
Response: While the method
established by the Electric Power
Research Institute may yield more
accurate H2SO4 emission rates, we have
not found, and the commenter has not
substantiated, that our treatment of
H2SO4 led to meaningfully different
modeled visibility improvement, or for
that matter, influenced the BART
determination in a material manner. In
the modeling conducted by EPA, we set
the sulfuric acid emission rates equal to
those in the State’s modeling analyses
which typically doubled the H2SO4
emission rate between the baseline and
SCR modeling scenarios. In comparison
to the emission rates for SO2 and NOX,
the emission rates for H2SO4 were
trivial. For example, consider Dave
Johnston Unit 3, where the modeled
emission rates for SO2 and NOX in the
baseline scenario were 420.0 lbs/hr and
1671.0 lbs/hr, respectively, while the
modeled emission rate for H2SO4 was
2.6 lbs/hr. Here, in comparison to SO2
and NOX emissions, the emissions rate
of H2SO4 is clearly insignificant and
would have a limited impact on
modeled visibility. The same can be
said for the SCR scenario where the
modeled emission rates for SO2 and
NOX were 420.0 lbs/hr and 163.3 lbs/hr,
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respectively, while the modeled
emission rate for H2SO4 was 5.1 lbs/hr.
In short, the H2SO4 emission rates used
in the modeling were so low that it is
apparent that they have no more than a
negligible impact on the modeled
visibility improvement.
Comment: EPA must consider the
cumulative visibility benefit of BART
controls on multiple units of a single
source. EPA’s BART guidelines make
clear that states must consider
emissions from an entire source in
determining whether a source is subjectto-BART, and further clarify that
multiple units at a single utility
constitute a single source. 40 CFR part
51, App Y, sect. II.A. This is not by
accident or oversight. As EPA stated in
its preamble to the BART Guidelines,
‘‘[a]pplying de minimis levels on a unit
by unit basis . . . could exempt
hundreds of tons of emissions of a
visibility-impairing pollutant from
BART analysis. [I]t is possible that
while emissions from each unit are
relatively trivial, the costs of controlling
emissions from multiple units might be
cost-effective in light of the BARTeligible source’s total emissions of the
pollutant at issue.’’ 70 FR 39104, 39117.
With respect to the RHR requirement
that states must project visibility
impacts of BART controls, the BART
Guidelines state: ‘‘Once you have
determined that your source or sources
are subject to BART, you must conduct
a visibility improvement determination
for the source(s) as part of the BART
determination.’’ 40 CFR part 51, App Y,
sect. IV.D.5. Thus, it is clear that both
visibility impacts and visibility benefits
are to be considered cumulatively for
multiple units at a single source.
This is also consistent with EPA’s
practice in other states. For example,
EPA found it appropriate to consider the
combined visibility impact of pollution
controls on multiple units at a single
facility in determining that BART is
SNCR for Units 1 and 2 of the Colstrip
facility in Montana. Failure to consider
cumulative visibility impacts discounts
the very real effect of source-specific
pollution on regional haze and likewise
the cumulative benefits of potential
retrofits. EPA cannot demonstrate that it
has properly evaluated BART controls
for affected sources without producing
and presenting such a cumulative
analysis.
Response: EPA notes that, in
considering the visibility improvements
reflected in our revised modeling, EPA
interprets the BART Guidelines to
require consideration of the visibility
improvement from BART applied to the
entire BART-eligible source. The BART
Guidelines explain that, ‘‘[i]f the
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emissions from the list of emissions
units at a stationary source exceed a
potential to emit of 250 tons per year for
any visibility-impairing pollutant, then
that collection of emissions units is a
BART-eligible source.’’ In other words,
the BART-eligible source (the list of
BART emissions units at a source) is the
collection of units for which one must
make a BART determination. The BART
Guidelines state ‘‘you must conduct a
visibility improvement determination
for the source(s) as part of the BART
determination.’’ This requires
consideration of the visibility
improvement from BART applied to the
BART-eligible source as a whole. We
note, however, that while our
regulations require states and EPA to
assess visibility improvement on a
source-wide basis, they provide
flexibility to also consider unit-specific
visibility improvement in order to more
fully inform the reasonableness of a
BART determination, but that does not
replace the consideration of visibility
benefit from the source (facility) as a
whole.
In making the BART determinations
in this final action we have considered
visibility improvements at the source,
and then also at the units that comprise
the source. The approach that we used
in our BART decisions for Wyoming is
consistent with the approach that we
used for Montana.
Comment: The commenter submitted
results of back trajectory HYSPLIT
modeling showing that pollutants
reaching certain Class I areas on the
high nitrate haze days did not originate
from Laramie River Station. The
commenter concludes that this analysis
confirms that reducing NOX emissions
from Laramie River would not improve
visibility at these Class I areas.
Response: We disagree with the
comment that the HYSPLIT results
submitted by the commenter can be
used to evaluate the contribution of
Laramie River to visibility impairment
at Wind Cave National Park. The
commenter performed HYSPLIT backtrajectory modeling for 10 days with
high ammonium nitrate concentrations
at Wind Cave National Park. The 10
days were selected from the period from
2001 to 2010, and only two of these
days occurred during 2001 to 2003
baseline period used for the BART
visibility modeling. These two days
were February 24, 2001 and February
14, 2003, when the observed ammonium
nitrate at the IMPROVE monitoring site
at Wind Cave National Park was 41 and
33 inverse Megameters (Mm-1),
respectively. We note that there were
many days during the 2001 to 2003
period on which observed ammonium
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nitrate levels at Wind Cave National
Park were in the range from 10 to 30
Mm-1,133 but the commenter did not
submit HYSPLIT results for these days.
HYSPLIT is a trajectory model similar
to CALPUFF in that both models use
modeled and observed wind field data
to predict the trajectory of pollutants
transported from a source area to a
receptor location. There are differences
in the formulation of the HYSPLIT and
CALPUFF models and differences in the
meteorological data used as input data
for each model, so the predicted
trajectory from each model may vary
somewhat as a result of these
differences. The most notable difference
in the two models is that CALPUFF is
designed to predict both the trajectory
and the chemical conversion of
precursor emissions to fine particulates
and to estimate the concentrations of
ammonium nitrate and other species at
receptor sites, while HYSPLIT simply
predicts the trajectory of the emissions
but does not predict the chemical
transformations nor the concentration of
ammonium nitrate at receptor sites.
We evaluated the CALPUFF results
for February 24, 2001 and February 14,
2003, and found that the HYSPLIT and
CALPUFF results were consistent, i.e.,
the CALPUFF model did not attribute
high levels of ammonium nitrate at
Wind Cave National Park on these two
days to Laramie River. The table of
CALPUFF modeling results 134 shows
that the model predicted a contribution
of nitrate from Laramie River of 0.02
deciview on Feb 24, 2001, or 0.05% of
the observed value, and on Feb 14,
2003, 1.697 deciview, or 5% of the
observed. The small modeled
contribution on these days is consistent
with uncertainty in the HYSPLIT model.
Because the HYSPLIT model does not
estimate the formation of ammonium
nitrate, and because HYSPLIT results
were only submitted for two days
during the 2001 to 2003 baseline
modeling period, these HYSPLIT results
are neither useful nor reliable for
identifying emissions sources that
contribute to visibility impairment at
Wind Cave National Park. The HYSPLIT
and CALPUFF results do indicate that
sources other than Laramie River
contribute to visibility impairment on
the two days with the very highest
ammonium nitrate levels at Wind Cave
during the 2001 to 2003 baseline period.
However, the CALPUFF results indicate
that Laramie River contributes to
133 Document with Wind Cave IMPROVE data, in
the docket.
134 EPA CALPUFF modeling results for Laramie
Rivers Station, in docket: CALPUFF_WY_BART_
bextNO3_BE_LR_Baseline_WindCave_12112013.
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visibility impairment at Wind Cave
National Park.
Comment: EPA improperly
considered ‘‘cumulative visibility
improvement’’ when it rejected
Wyoming’s BART NOX analyses and
required SCR at Naughton Unit 1 and
Naughton Unit 2. (78 FR 34782). Other
comments asserted that EPA improperly
considered ‘‘cumulative visibility
improvement’’ when it rejected
Wyoming’s BART NOX analyses and
required SCR at Dave Johnston Unit 3
(78 FR 34778). Finally, a third set of
comments asserted that EPA R8 has
incorrectly estimated visibility
improvement from all NOX control
options at Wyodak: Wyoming DEQ
evaluated cumulative visibility
improvements at the two nearest Class
I areas (Wind Cave and Badlands
National Parks) while EPA R8 reported
results for only one Class I area.
Response: We disagree with these
comments. In evaluating the visibility
improvement associated with various
control options, EPA interprets the CAA
to require consideration of visibility
improvement at all impacted Class I
areas. Consideration of improvement at
multiple Class I areas, as opposed to just
benefits at the most impacted Class I
area, has often been described as
‘‘cumulative visibility improvement.’’
Despite this terminology, however, an
analysis of cumulative visibility
improvement does not necessarily
require that the deciview improvement
at each area be summed together. While
states or EPA are free to take such a
quantitative approach, they are also free
to use a more qualitative approach.
Here, we chose to rely primarily on the
visibility improvement at the most
impacted Class I area, while also
considering the number of additional
Class I areas that would see
improvement, as well as the level of
improvement at each area. We did not
expressly rely on a summation of
visibility benefits across Class I areas, as
we have done in other regional haze
actions, although this metric was
included in some tables. Finally, in our
analysis of visibility impacts, we
considered the visibility improvement
at both Class I areas within 300
kilometers of Wyodak. The modeling
results for the second proposal for all
Class I areas considered for each BART
source were available to the public
during the comment period upon
request. (See ‘‘Summary of EPA’s
Additional Visibility Improvement
Modeling’’).
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1. BART-Eligible Sources
Comment: OCI Wyoming commented
that it was listed as a BART-eligible
source, but that the facility has an
enforceable cumulative annual NOX
emission limit of 175.2 tons/year.
Therefore, the facility is not a ‘‘major
stationary source’’ and is not BARTeligible.
Response: We agree with this
comment and acknowledge that OCI
Wyoming is not a BART-eligible source.
2. Costs of Controls
Comment: One commenter stated that
it supported EPA’s use of the CCM and
the Integrated Planning Model (IPM) to
calculate costs.
Response: It is noted that EPA has
revised the cost estimates found in the
proposed rule based upon input from
various commenters. The differences in
cost for individual units may result
from: (1) Accounting for site elevation
in the SCR capital cost; (2) Change in
SCR reagent to anhydrous ammonia
from urea; (3) Change in urea SNCR
chemical utilization for Laramie River
units due to high furnace temperature;
(4) Incorporation of some of the costs
provided in comments; (4) Change in
auxiliary electrical cost from market
price to generating, or ‘‘busbar,’’ cost; (5)
Correction of dilution water cost
equation for SNCR; and (6)
Consideration of shorter plant lifetimes
in some instances.
More detailed descriptions of these
changes and how they were addressed
are discussed in a report (Andover
Report) and spreadsheets 135 developed
for EPA’s responses to comments, as
well as in our responses to the specific
comments that are associated with these
changes below.
Comment: Sargent & Lundy’s analysis
provides realistic information regarding
what it likely would cost to install and
operate an SCR system at Laramie River
Station. They include a cost analysis by
Sargent & Lundy that, unlike EPA’s
consultant’s work, follows the BART
Guidelines and EPA’s CCM, and takes
into account key site-specific conditions
at Laramie River Station. This analysis
is far more accurate and reliable than
what was done by EPA’s consultant—it
is a site-specific, from-the-ground-up
analysis done by an engineering firm
that has done more NOX control projects
for EGUs than any other firm in the U.S.
135 Andover Technology Partners, ‘‘Cost of NO
X
Controls on Wyoming EGUs’’, October 28, 2013;
Wyoming EGU BART and Reasonable Progress
Costs—10/28/2013; Wyoming EGU BART and
Reasonable Progress Costs for Jim Bridger—10/28/
2013.
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Sargent & Lundy’s analysis provides
realistic information regarding what it
likely would cost to install and operate
an SCR system at Laramie River. This
analysis strongly supports Wyoming’s
decision to select new LNBs and OFA
as BART for Laramie River Station, not
SNCR or SCR.
Response: We do not agree with this
comment. The BART Guidelines
provide that: ‘‘You should include
documentation for any additional
information used for the cost
calculations, including any information
supplied by vendors that affects your
assumptions regarding purchased
equipment costs, equipment life,
replacement of major components, labor
productivity and rates and any other
element of the calculation that differs
from the Control Cost Manual.’’ 40 CFR
part 51, app. Y, at IV.4.a.
Thus, detailed cost documentation is
necessary to the extent that cost
assumptions differ from the CCM. In
this case, several of Sargent & Lundy’s
cost assumptions for control costs at
Basin Electric’s Laramie River Station
differed from the CCM, but the
necessary supporting documentation
was not provided as part of their report.
Detailed descriptions of the deficiencies
in the cost assumptions are described in
comments specific to the units. As
explained elsewhere in this document,
EPA has accepted some of the revised
costs developed for Basin Electric, but
not others.
Comment: We found that EPA’s
consultant had added 1.2% to the total
capital investment of SCR to account for
‘‘taxes and insurance.’’ The CCM says:
‘‘In many cases property taxes do not
apply to capital improvements such as
air pollution control equipment,
therefore, for this analysis, taxes are
assumed to be zero. The cost of
overhead for an SCR system is also
considered to be zero. An SCR system
is not viewed as risk-increasing
hardware (e.g., a high energy device
such as a boiler or a turbine).
Consequently, insurance on an SCR
system is on the order of a few pennies
per thousand dollars annually.’’ The
BART submittal by PacifiCorp included
a 1.1% sales tax and Basin Electric
included a 4% sales tax, both of which
were applied to the purchased
equipment costs. It is unclear if
application of a sales tax is appropriate
in Wyoming and, if so, what the correct
tax rate is.
Response: To the extent that sales or
property taxes are actually incurred and
increase the cost of the project, they
should be accounted for in the cost. See
CCM at 2.5.4.1 and 2.5.5.8. However, air
pollution control improvements often
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do not result in increased property
taxes. When these taxes are not in fact
applied, they should not be included in
the estimate. The use of 1.2% as an
estimate of property taxes and insurance
is a conservative estimate that is
consistent with EPA’s assumptions in
the IPM documentation. According to
the IPM documentation (version 4.10,
Chapter 8, page 8–11): ‘‘U.S. state
property taxes are approximately 0.9%
based on a national average basis. This
is based on extensive primary and
secondary research conducted by ICF
using property tax rates obtained from
various state agencies. . . . Insurance
costs are approximately 0.3%. This is
based on estimates of insurance costs on
a national average basis.’’ 136
As noted by the commenter, these
costs may not in fact apply for
environmental upgrades or may be
much less than estimated. EPA did not
have information on the applicability of
property taxes at the time we conducted
our cost estimates and conservatively
assumed a reasonable amount. We also
note that the commenter did not provide
sufficient information to support a
different property tax or insurance rate.
With regard to sales tax, the IPM
algorithm for SCR cost is based upon
historical projects and incorporates
typical levels of sales tax. That is, the
capital costs provided by the
algorithm(s) are inclusive of sales tax.
Accordingly, for the purpose of the
BART cost estimates, and without
additional data to determine what sales
taxes would actually apply, EPA has
relied on the assumptions in the IPM
algorithm.
Comment: EPA states in its FIP Action
(78 FR 34749): ‘‘For all control
technologies, EPA has identified
instances in which Wyoming’s sourcebased cost analyses did not follow the
methods set forth in the EPA Control
Cost Manual. For example, Wyoming
included an allowance for funds used
during construction and for owners
costs and did not provide sufficient
documentation such as vendor estimates
or bids.’’
With respect to AFUDC, another
utility (Oklahoma Gas and Electric)
argued in a similar regional haze setting
that: ‘‘AFUDC provides a way of
measuring the real cost of interest over
the construction period. AFUDC
accounts for the time value of money
associated with the distribution of
construction cash flows over the
construction period, which may be
approximately 18 months for an SCR
project.’’ Total capital investment, as
136 http://www.epa.gov/airmarkets/progsregs/epaipm/BaseCasev410.html#documentation.
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defined in the CCM, includes all costs
required to purchase equipment needed
for the control system (purchased
equipment costs), the costs of labor and
materials for installing that equipment
(direct installation costs), costs for site
preparation and building, working
capital, and off-site facilities.
A cost breakdown of total capital
investment (as defined above) is
presented in several examples in the
CCM. For example, Table 1.4 (page
1–32 of Section 4—NOX Controls) and
Table 2.5 (page 2–44 of Section 4—NOX
Controls) therein explicitly identify
AFUDC as component ‘‘E’’ of the TCI,
where TCI = D + E + F + G + H + I,
where: D = Total Plant Cost; E =
AFUDC; F = Royalty Allowance; G =
Preproduction Cost; H = Inventory
Capital; I = Initial Catalyst and
Chemicals.
References 9 and 10 on page 2–38 of
the CCM explicitly include AFUDC as a
cost component and reference two
reports, by Shattuck and Kaplan, in
support of its use. The EPA built upon
this knowledge base and costing
methodology in its publication of the
CCM in 2002. Thus, the CCM allows the
time value of money, measured by the
real discount rate, to be incorporated
into the cost estimate.
Section 2.3.1 of the CCM (Elements of
Total Capital Investment) describes the
need for total capital investment to
include all expenditures incurred
during the construction phase of the
project, including direct costs, indirect
costs, fuel and consumables expended
during start-up and testing, and other
capitalized expenses. The only items
explicitly mentioned to be excluded are
common facilities that already exist at
the site. AFUDC is part of the expense
that will be incurred with the
installation of a large air pollution
control system, and the accepted
practice in the utility industry and by
financial institutions is to treat AFUDC
as a capitalized expenditure. This
approach is recognized in publications
by the U.S. Department of Energy—
Energy Information Administration,
such as the Annual Energy Outlook, and
in publications by the Electric Power
Research Institute, such as the
Technical Assessment Guide (EPRI
TAG). As previously mentioned, the
EPA clearly followed this approach in
its studies of retrofit costs of SO2 and
NOX in the years leading up to its
publication of the CCM. Furthermore,
AFUDC has been included in several
other coal-fired boiler BART
determinations, and AFUDC is included
as a line item in EPA’s Coal Quality
Environmental Cost (CUECost)
worksheets for flue gas desulfurization
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(FGD) control systems. In cases where
the time value of money during the
construction period would be
significant (e.g., projects with longer
construction periods such as the
installation of SCR), the CCM clearly
allows inclusion of AFUDC.
PacifiCorp supports and adopts by
reference Oklahoma Gas and Electric’s
argument regarding including AFUDC
in project cost estimates. Whether or not
AFUDC is included in project cost
estimates does not materially impact the
results reached under the EPA CCM
method, its inclusion should not
constitute a basis for EPA to reject
Wyoming’s entire cost assessments.
PacifiCorp has provided tables that
provide comparisons of PacifiCorp’s
project specific EPA CCM method
results where AFUDC is excluded in
one set of costs and is included in the
other to demonstrate this point.
Response: We disagree with
commenters’ assertions that AFUDC is a
cost that should be incorporated into
our cost analysis, as it is inconsistent
with CCM methodology. The utility
industry uses a method known as
‘‘levelized costing’’ to conduct its
internal comparisons, which is different
from the methods specified by the CCM.
Utilities use ‘‘levelized costing’’ to allow
them to recover project costs over a
period of several years and, as a result,
realize a reasonable return on their
investment. The CCM uses an approach
sometimes referred to as overnight
costing, which treats the costs of a
project as if the project were completed
‘‘overnight’’, with no construction
period and no interest accrual. Since
assets under construction do not
provide service to current customers,
utilities cannot charge the interest and
allowed return on equity associated
with these assets to customers while
under construction. Under the
‘‘levelized costing’’ methodology,
AFUDC capitalizes the interest and
return on equity that would accrue over
the construction period and adds them
to the rate base when construction is
completed and the assets are used.
Although it is included in capital costs,
AFUDC primarily represents a tool for
utilities to capture their cost of
borrowing and return on equity during
construction periods. AFUDC is not
allowed as a capitalized cost associated
with a pollution control device under
CCM’s overnight costing methodology,
and is specifically disallowed for SCRs
(i.e., set to zero) in the CCM.137
Therefore, in reviewing other BART
determinations, EPA has consistently
137 CCM (Tables 1.4 and 2.5 show AFUDC value
as zero).
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excluded AFUDC.138 EPA’s position
regarding exclusion has been upheld in
the United States Tenth Circuit Court of
Appeals.139
The fact that CUECost, the EPRI TAG,
and the Department of Energy cost
estimates, and even cost estimates used
as the basis for IPM typically include
AFUDC is immaterial in this case
because, for this purpose, overnight cost
methodology is used and AFUDC is not
included in that methodology.
Finally, we reject the commenter’s
assertion that Wyoming’s inclusion of
AFUDC did not provide a material basis
for EPA to disapprove portions of the
State’s SIP. Inclusion of AFUDC
increases total project costs of SCR by
several million dollars. For example,
Attachment 4 to PacifiCorp’s comment
letter shows that AFUDC for Dave
Johnston Unit 4 would add more than
$9.5 million dollars to the capital costs
of SCR. We find that amounts of this
magnitude are not trivial when
assessing the costs of compliance.
Comment: Sargent & Lundy’s cost
estimate does include AFUDC, which
accounts for the interest charges that
would be incurred by Basin Electric
during SCR construction. AFUDC is a
real and a significant cost on capital
intensive, long-term projects such as
SCR installation, which require
financing over a construction period of
up to four years. Indeed, to exclude
AFUDC would inappropriately bias the
cost estimate in favor of high capital
intensity projects. Therefore, consistent
with industry practice, Sargent & Lundy
included AFUDC, calculated based on a
typical SCR construction project cash
flow assuming a real interest rate of 7%.
The inclusion of AFUDC is not, as
EPA asserts, inconsistent with either the
BART Guidelines or the CCM. See 78 FR
34749. The CCM simply references
‘‘Total Capital Investment,’’ which
includes ‘‘all costs required to purchase
equipment needed for the control
system,’’ as well as ‘‘working capital.’’
CCM 2.3.1, page 2–5 (emphasis added).
This includes costs required to purchase
equipment needed for the control
system (purchased equipment costs), the
costs of labor and materials for
installing that equipment (direct
installation costs), costs for site
preparation and building, working
138 See, e.g., 77 FR 20894, 20916–17 (Apr. 6,
2012) (explaining in support of the North Dakota
Regional Haze FIP, ‘‘we maintain that following the
overnight method ensures equitable BART
determinations * * *.’’); 76 FR 52388, 52399–
52400 (August 22, 2011) (explaining in the New
Mexico Regional Haze FIP that the Manual does not
allow AFUDC)
139 Oklahoma v. U.S. EPA, 723 F.3d 1201 (10th
Cir. 2013).
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capital, and off-site facilities. Id.
Nowhere in the CCM does EPA state
that AFUDC is not an appropriate cost,
particularly with respect to long-term,
capital intensive pollution control
projects. And even if the CCM made
such an assertion, inclusion of AFUDC
in a cost estimate cannot be grounds for
SIP disapproval because: (1) the CCM is
not binding for purposes of making
BART determinations, and (2) requiring
states to exclude AFUDC is not
consistent with Congress’ general
directive that states include ‘‘costs of
compliance’’ in their BART
determinations.
The CAA requires states to consider
in their BART determinations the ‘‘costs
of compliance,’’ but does not further
define the term. See 42 U.S.C. 7491.
EPA’s regulations codify the BART
factors, but neither the regulations nor
the BART Guidelines in Appendix Y
purport to restrict in any manner the
categories of costs that states should
consider when making a BART
determination. See 70 FR 39166–39168.
AFUDC is a ‘‘cost of compliance.’’ Basin
Electric cannot fund large capitalintensive projects like SCR without
financing, and the costs related to such
financing are real and substantial.
Consideration of AFUDC is therefore
entirely consistent with the CAA’s
broad reference to ‘‘costs of
compliance,’’ and excluding AFUDC
would be inconsistent.
In this case, even if AFUDC is
excluded from the total annual costs,
the costs of installing SCR do not
decrease substantially enough to justify
SCR. Sargent & Lundy performed
sensitivity analyses demonstrating that
the cost-effectiveness of SCR at Laramie
River remains at between $8,531 per ton
of NOX removed and $9,048 per ton of
NOX removed even if AFUDC is
excluded. Furthermore, if the
maintenance cost and labor rate of 1.5%
also is factored into the analysis,
consistent with the CCM, as opposed to
the lower 0.25% used by Sargent &
Lundy, the cost-effectiveness remains
above $8,500 per ton of NOX removed.
Sargent & Lundy also performed a
sensitivity analysis demonstrating that
including property taxes and insurance
as 1.2% of total capital investment,
consistent with the approach taken by
Andover but not with the CCM
approach, more than offsets the
exclusion of AFUDC. S&L Evaluation
section 7.1.4, Table 10.
Response: EPA agrees that AFUDC
can be a substantial overall cost on large
capital projects that extend over a
period of several years. However, as
noted in the previous response, the
CCM clearly excludes AFUDC in the
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overnight cost method. Furthermore, as
we explain in more detail in responses
to comments that pertain to specific
sources, we disagree with the
commenter’s estimates for cost
effectiveness for the Laramie River
units.
Comment: Commenters assert that
EPA’s regional haze FIP is flawed
because it failed to provide sufficient
documentation, such as vendor
estimates or bids to validate its
estimates. EPA attempts to justify its
approach by stating: ‘‘In our revised cost
analyses, we have followed the structure
(emphasis added) of the EPA CCM,
though we have largely used the
Integrated Planning Model cost
calculations to estimate direct capital
costs and operating and maintenance
costs.’’ 78 FR 34749.
EPA did not explain what it meant by
following the ‘‘structure’’ of the manual,
versus simply following the manual. By
contrast, PacifiCorp solicited and
incorporated vendor estimates into
these comments. This new information,
which EPA must incorporate into new
BART analyses to the extent EPA issues
a final regional haze FIP, validates
Wyoming’s BART analyses cost of
control estimates. In addition, it further
quantifies the inaccuracies in EPA’s
development and use of purported new
information that in no way qualifies as
vendor estimates, bids, or any type of
site-specific vendor information.
Response: We do not agree with this
comment. By following the ‘‘structure’’
of the manual, EPA included all of the
cost elements that the CCM indicates
should be included, while excluding
those that should not (such as AFUDC).
In other words, EPA employed the
overnight cost method as is required for
BART analyses. The BART Guidelines
require that the CCM be followed unless
deviations from it are clearly
documented and explained.
PacifiCorp received bids from vendors
and EPA has incorporated information
from these bids into its revised cost
estimates. However, for reasons
described elsewhere in response to
comments, EPA has not accepted all of
the costs. The BART Guidelines state:
‘‘You should include documentation for
any additional information you used for
the cost calculations, including any
information supplied by vendors that
affects your assumptions regarding
purchased equipment costs, equipment
life, replacement of major components,
and any other element of the calculation
that differs from the CCM.’’ 70 FR
39166.
With regard to Basin Electric, vendor
quotes for the Laramie River Station
were not supplied. As Basin Electric
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indicated in its comments, ‘‘[t]he LRS
cost estimates are conceptual in nature;
thus, S&L did not procure equipment
quotes specifically for the LRS control
systems. Rather, equipment costs for the
LRS projects are based on conceptual
designs developed for the control
systems, preliminary equipment sizing
developed for the major pieces of
equipment, and recent pricing for
similar equipment.’’
In effect, like the IPM cost algorithms,
the method that underlies Sargent &
Lundy’s estimate for Basin Electric is
empirically based on past data, and not
vendor quotes developed specific to
Laramie River. We have, however,
accepted some of the costs submitted by
Basin Electric and not accepted others.
Comment: Even if EPA had the
authority to require the use of the CCM,
which it does not, EPA’s insistence on
Wyoming’s strict compliance with the
costing methodology set forth in the
CCM, without adjusting the
methodology to account for important
site-specific factors, leads to an
erroneous and arbitrary and capricious
result. This is not required by the CCM.
Indeed, the manual expressly discounts
the usefulness of the costing
methodology to power plants generally
and to SCR control systems specifically,
and it acknowledges that deviation from
the methodology may be appropriate
based on a user’s engineering judgment.
The CCM provides general costing
methodology for stationary source air
pollution control technologies,
applicable primarily to regulatory
development where a rough order of
magnitude estimate is appropriate. The
introduction to the manual also caveats
its usefulness when assessing control
costs at power plants, which use
different cost accounting. Cost Manual
section 1.1, page 1–3. Specifically, it
states that ‘‘[e]lectrical utilities generally
employ the EPRI Technical Assistance
Guidance (TAG) as the basis for their
cost estimation processes.’’ Id. In a
footnote, it explains that while power
plants might still use the manual,
‘‘comparisons between utilities and
across the industry generally employ a
process called ‘levelized costing’ that is
different from the methodology used
here.’’ Id. section 1.1, page 1–3 n.1.
The CCM also generates rough
estimates of costs that are less accurate
than the site-specific cost factors that
are more appropriate for BART
determinations at a large power plant.
The manual is used heavily in
regulatory development, and the costing
methodology is geared specifically to
avoid the necessity of site-specific
information and to enable estimates to
be prepared at ‘‘relatively low cost with
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minimum data.’’ Id. section 2.2, page
2–3 (internal quotations omitted).
However, the level of accuracy is much
lower than that for estimates using sitespecific information. The cost
estimating procedure can provide a
‘‘rough order of magnitude,’’ estimate
that is ‘‘nominally accurate to within ±
30%.’’ Id. section 1.2, page 1–4. Indeed,
‘‘EPA does not claim cost estimates for
industry at a greater than study level
accuracy for industrial users’’ because
‘‘the industrial user will necessarily
have much more detailed information
than the generic cost and sizing
information.’’ Id. section 2.2, page 2–3,
2–4.
Where the user has detailed sitespecific information, the manual does
not contemplate strict adherence to its
costing methodology. Users may
‘‘exercise ‘engineering judgment’ on
those occasions when the procedures
may need to be modified or
disregarded.’’ Id. section 1.3, page 1–7.
With respect to estimating factors used
in cost estimates, ‘‘the application of an
appropriate factor requires the
subjective application of the analyst’s
best judgment.’’ Id. section 2.5.4.1, page
2–28. The manual is designed to
provide a tool box for estimating costs
that can be helpful to the engineer, but
‘‘[t]he bottom line is that there is no
clear-cut ‘cookbook’ process through
which the analyst will be able to make
the right informed decision each time,
and the formalized costing methodology
employed by the Manual is only part of
that process.’’ Id. section 2.6, page 2–37.
With respect to SCR cost estimations,
the CCM is no more than a ‘‘tool to
estimate study-level costs for high-dust
SCR systems.’’ Id. section 2.4, page
2–40. The ‘‘[a]ctual selection of the most
cost-effective option should be based on
a detailed engineering study and cost
quotations from the system suppliers.’’
Id. This requirement for a more detailed
study relying on site-specific factors is
necessary because, as EPA
acknowledges, the CCM’s assumptions
regarding capital investment for SCR are
inaccurate. Id. section 2.5.4.1, page
2–27. For systems like SCR, ‘‘the control
in question is either so large or so sitespecific in design that suppliers design,
fabricate, and construct each control
according to the specific needs of the
facility.’’ Id. section 2.5.4.1, page 2–27.
Thus, for these systems, ‘‘the Manual
deviates from its standard approach of
providing study level costs and, instead,
provides a detailed description of the
factors that influence the TCI [total
capital investment] for the analyst to
consider when dealing with a vendor
quotation.’’ Id. Under these
circumstances, EPA acknowledges that
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getting vendor quotes may be difficult
because they cannot be done in an ‘‘offthe-shelf’’ fashion. Id. The engineering
judgment of the manual’s user is
especially critical in estimating the costs
of an SCR retrofit: ‘‘Probably the most
subjective part of the cost estimate
occurs when the control system is to be
installed on an existing facility.’’ Unless
the original designers had the foresight
to include additional floor space and
room between components for new
equipment, the installation of retrofitted
pollution control devices can impose an
additional expense to ‘‘shoe-horn’’ the
equipment into the right locations. For
example, an SCR reactor can occupy
tens of thousands of square feet and
must be installed directly behind a
boiler’s combustion chamber to offer the
best environment for NOX removal. For
these boilers, there is generally little
room for the reactor to fit in the existing
space and additional ductwork, fans,
and flue gas heaters may be needed to
make the system work properly.
To quantify the unanticipated
additional costs of installation not
directly related to the capital costs of
the controls themselves, engineers and
cost analysts typically multiply the cost
of the system by a retrofit factor. The
proper application of a retrofit factor is
as much an art as it is a science, in that
it requires a good deal of insight,
experience, and intuition on the part of
the analyst. The key behind a good cost
estimate using a retrofit factor is to make
the factor no larger than is necessary to
cover the occurrence of unexpected (but
reasonable) costs for demolition and
installation. Such unexpected costs
include, but are certainly not limited to,
the unexpected magnitude of
anticipated cost elements; the costs of
unexpected delays; the cost of
reengineering and re-fabrication; and
the cost of correcting design errors. Id.
section 2.5.4.2, page 2–28. The CCM
cannot properly account for these
uncertainties and thus provides that
users can apply a ‘‘retrofit factor’’ of up
to 50 percent to account for them. Id.
EPA notes that ‘‘[s]ince each retrofit
installation is unique, no general factors
can be developed.’’ Id. 2.5.4.2, page
2–29.
In sum, the BART Guidelines and
CCM were drafted and are to be applied
as guidelines to assist the states in their
decision making, not as inflexible
mandates. Knowing this, states like
Wyoming follow the BART Guidelines
generally but make the necessary
localized and individualized
adjustments required to generate
realistic, rather than formalistic, cost
estimates. Accordingly, EPA should
expect the states to deviate on occasion,
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5135
not to slavishly follow the BART
Guidelines and CCM to the point of
generating artificial (and unrealistic)
cost estimates. Yet that is now exactly
what EPA contends the states must do.
EPA’s current approach to using the
BART Guidelines and manual as
grounds for disapproval without
deference to the states’ authority and
local control is unreasonable, erroneous,
and arbitrary and capricious.
Response: There are only very limited
situations in which a state or EPA can
depart from the CCM cost methodology.
‘‘The basis for equipment cost estimates
also should be documented, either with
data supplied by an equipment vendor
(i.e., budget estimates or bids) or by a
referenced source (such as the OAQPS
CCM, Fifth Edition, February 1996, EPA
453/B–96–001). In order to maintain
and improve consistency, cost estimates
should be based on the OAQPS CCM,
where possible. The CCM addresses
most control technologies in sufficient
detail for a BART analysis. The cost
analysis should also take into account
any site-specific design or other
conditions identified above that affect
the cost.’’ 70 FR 39166.
The guidelines for BART
determinations make it clear that the
CCM is the intended methodology for
conducting a BART cost determination.
It also states why: To maintain and
improve consistency. However, the
CCM does state that site-specific
conditions should be incorporated. Sitespecific conditions could include space
constraints, or a design feature that
could complicate installing a control.
However, the BART Guidelines are clear
that the analyst should document any
deviations from the CCM: ‘‘You should
include documentation for any
additional information you used for the
cost calculations, including any
information supplied by vendors that
affects your assumptions regarding
purchased equipment costs, equipment
life, replacement of major components,
and any other element of the calculation
that differs from the CCM.’’ 70 FR
39166.
In fact, the record does not point to
any unusual circumstances that explain
why SCR costs in Wyoming should be
so much higher than costs of SCR at
other similar facilities. As will be
demonstrated in responses to comments
that are specific to the individual units,
the commenters did not identify any
unique features of their plants that
would make of the installation of an
SCR so difficult that the cost would be
outside the range of what has been
experienced elsewhere, even accounting
for such things as elevation, which is
discussed later in these responses to
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comments. The BART Guidelines also
provide the following explanation,
which makes it clear that other cost
methods are supplemental, not
replacements for the CCM cost method:
‘‘We believe that the CCM provides a
good reference tool for cost calculations,
but if there are elements or sources that
are not addressed by the CCM or there
are additional cost methods that could
be used, we believe that these could
serve as useful supplemental
information.’’ 70 FR 39127.
Although the focus in the second
quote is ensuring the remaining useful
life is incorporated into the amortization
schedule, this passage affirms that the
CCM’s annualized cost methodology
should be followed. The following quote
from the same page of the BART
guidelines sheds light on the type of
costing methodology employed by the
CCM, ‘‘capital and other construction
costs incurred before controls are put in
place can be rolled into the first year, as
suggested in EPA’s OAQPS CCM.’’
Although this passage is again focused
on the remaining useful life, the text we
reproduce is a reference to the basic
CCM cost methodology—the overnight
method. That is what is meant with the
reference of rolling future costs into the
first year. The ‘‘all in’’ method that
OG&E used does not do that—it projects
costs to a future date. Although the CCM
does not use the term, ‘‘overnight cost,’’
it is widely used in industry.
The U.S. Energy Information
Administration defines ‘‘overnight cost’’
as ‘‘an estimate of the cost at which a
plant could be constructed assuming
that the entire process from planning
through completion could be
accomplished in a single day. This
concept is useful to avoid any impact of
financing issues and assumptions on
estimated costs.’’ 140 In effect, the
overnight cost is the present value cost
that would have to be paid as a lump
sum up front to completely pay for a
construction project.
As will be described in EPA’s other
responses to comments regarding
specific plants, commenters did not
provide the documentation required
under the RHR to demonstrate why their
costs were so much higher than costs for
other similar units. Such documentation
would include any vendor quotes to
include scope of supply, explanations of
labor productivity issues with
supporting documentation, and other
concerns raised by commenters and
140 EIA, ‘‘Updated Capital Cost Estimates for
Electricity Generation Plants,’’ November 2010,
footnote. 2. Available at: http://www.eia.gov/oiaf/
beck_plantcosts/?src=email.
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addressed in more detail in other
comments.
Comment: Sargent & Lundy is both a
design and engineering firm and a
system supplier, and it has provided
exactly the type of detailed scopinglevel engineering study for SCR
contemplated by the CCM when
selecting the most cost-effective NOX
control device. EPA acknowledges that
with respect to SCR cost estimations,
the CCM is no more than a ‘‘tool to
estimate study-level costs for high-dust
SCR systems.’’ CCM section 2.4, page
2–40. For systems such as SCR, ‘‘the
control in question is either so large or
so site-specific in design that suppliers
design, fabricate, and construct each
control according to the specific needs
of the facility.’’ Id. section 2.5.4.1, page
2–27. See also id. at section 2.3, page
2–30 (‘‘the design is highly sitespecific.’’). Importantly, the ‘‘[a]ctual
selection of the most cost-effective
option should be based on a detailed
engineering study and cost quotations
from the system suppliers.’’ Id. at
section 2.6, page 2–43.
The Sargent & Lundy Evaluation
provides a cost estimate not based on
the general, broad brush assumptions
set forth as examples in the CCM, but on
a conceptual design of SCR at Laramie
River based on site-specific variables
and Sargent & Lundy’s extensive
knowledge of, and experience with, SCR
installations on coal-fired utility boilers.
Based on this conceptual design,
Sargent & Lundy estimated equipment
costs using example vendor quotes for
similar projects, and used appropriate
commodity pricing references, rates for
labor based on industry publications
and locality-specific data, and, where
necessary, allowances.
Response: As EPA has noted in
previous responses to comments, the
CCM is a good reference tool for
estimating costs. With regard to Sargent
& Lundy’s estimates at Laramie River
Station, EPA has found deficiencies in
the cost estimates or underlying
assumptions that will be discussed in
more detail in comments that are
specific to units.
Comment: One commenter asserted
that the EPA’s cost evaluations
overestimated the annualized capital
costs of BART options by assuming an
unrealistically high interest rate, which
is particularly extreme in the cost
estimates for SCR because of its
relatively higher capital costs than the
other control technologies evaluated.
The commenter calculated and
submitted documentation of what the
commenter considers to be the real cost
of capital interest to PacifiCorp, which
was 5.66 percent, and to Basin Electric,
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which was around 2 percent. According
to the commenter, the EPA continues to
assume a much higher 7 percent interest
rate, apparently based on the EPA’s
mistaken belief that this rate is
supported by the CCM. The commenter
stated that while the CCM states the
social interest rate ‘‘is currently set at
seven percent’’ by the Office of
Management and Budget (OMB), it
references the interest rate established
by OMB in 1992, whereas the OMB
updates interest rates yearly and the
current social interest rate is 1.7 percent
for a 20-year period (citing OMB
Circular A–94, App. C (revised Dec.
2012)).141 The commenter concluded
that even if EPA were correct in
applying the social interest rate, it
should have used the current published
OMB rate in accordance with the CCM’s
direction.
The commenter went on to contend
that the CCM recommends a sourcespecific interest rate for BART and
reasonable progress determinations,
rather than the social interest rate
applied in promulgation of regulations.
According to the commenter, the
7-percent ‘‘social interest rate’’ is used
to estimate the cost to society of taking
an action. However, the CCM states that
this social interest rate ‘‘is probably not
appropriate for industry.’’ The
commenter noted that the RHR requires
the EPA to make case-by-case
determinations of ‘‘the costs of
compliance’’ for identified BART and
reasonable progress options, which the
commenter interprets as being the actual
cost to the source of implementing the
studied alternatives. The commenter
indicated that where the EPA, the state,
or industry is evaluating ‘‘the economic
impact that [air-pollution control]
equipment would have upon the
source,’’ a source-specific interest rate is
appropriate. The commenter concluded
that the EPA erred in relying on a
generic and outdated 7-percent social
interest rate that resulted in a
particularly inflated estimate of SCR
costs, and asserted that in recalculating
the annualized capital costs of control
technologies, the EPA must either use
the current social interest rate of 1.7
percent, or more appropriately, sourcespecific rates of 5.66 percent for
PacifiCorp Units and 2 percent for Basin
Electric Units.
Response: We have retained the use of
a 7-percent interest rate in calculating
the capital recovery factor. For cost
analyses related to government
regulations, an appropriate ‘‘social’’
interest (discount) rate should be used,
141 http://www.whitehouse.gov/sites/default/files/
omb/assets/a94/dischist-2013.pdf.
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not the source’s actual rate of
borrowing. OMB Circular A–4,
providing Federal agencies guidance on
developing regulatory analyses, and
dated September 17, 2003, reiterates the
guidance found in the earlier Circular
A–94: ‘‘As a default position, OMB
Circular A–94 states that a real discount
rate of 7 percent should be used as a
base-case for regulatory analysis. The 7
percent rate is an estimate of the average
before-tax rate of return to private
capital in the U.S. economy, based on
historical data. It is a broad measure that
reflects the returns to real estate and
small business capital as well as
corporate capital. It approximates the
opportunity cost of capital, and it is the
appropriate discount rate whenever the
main effect of a regulation is to displace
or alter the use of capital in the private
sector.’’ 142
In addition, EPA calculated capital
recovery factors using 3-percent and
7-percent interest rates in determining
cost-effectiveness for the Regulatory
Impact Analysis for the BART
Guidelines.143 The 3-percent rate is
mainly used when private consumption
displacement is the main impact of a
regulatory action. This cost of
retrofitting power plants for this action
displaces private capital far more than
private consumption, so 3-percent is not
an interest rate that is applicable here.
We consider our use of an interest rate
of 7-percent to calculate capital recovery
to be a conservative approach.
Finally, the interest rate cited by the
commenter from Appendix C to OMB
Circular A–94, 1.7 percent, is for an
altogether different purpose than the
type of regulatory analysis supporting
today’s rule. According to the discount
rate policy described in Circular A–94,
interest rates contained in Appendix C,
which reflect Treasury borrowing rates,
are for the purpose of internal planning
decisions of the Federal Government.
This is in contrast to regulatory actions,
for which as noted above, the circular
prescribes use of a ‘‘real discount rate of
7 percent.’’ 144
Comment: One commenter stated that
the EPA used the IPM default cost for
auxiliary power of $0.06/kWhr for all of
the control scenarios evaluated, which
is much higher than the auxiliary power
cost commonly used in cost142 Office of Management and Budget, Circular A–
4, Regulatory Analysis, http://www.whitehouse.gov/
omb/circulars-a004_a_4/.
143 ‘‘Regulatory Impact Analysis for the Final
Clean Air Visibility Rule or the Guidelines for Best
Available Retrofit Technology (BART)
Determinations Under the Regional Haze
Regulations,’’ EPA–0452/R–05–004 (June 2005).
144 http://www.whitehouse.gov/omb/circulars_
a094#8.
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effectiveness analyses. The commenter
asserted that the appropriate cost of
auxiliary power to use in a costeffectiveness analysis is the busbar cost
of power to run the plant, not the cost
of power sold. According to the
commenter, auxiliary power is the
power required to run the plant, or
power not sold, and cost-effectiveness
analyses are based on the cost to the
owner to generate electricity, or the
busbar cost, not market retail rates. The
commenter indicated that the sitespecific data reported by PacifiCorp to
the Federal Energy Regulatory
Commission (FERC) in 2010 indicates
that the busbar power cost for the
Wyoming PacifiCorp plants is typically
in the range of $0.02/kWhr to $0.03 lb/
kWhr, and for Basin Electric’s Laramie
River Station, the company used a cost
of $0.015/kWhr, which is consistent
with the busbar power cost.
Response: In EPA’s original analysis,
we used the default values for electricity
in the IPM model, although we agree
that the cost of power used for auxiliary
loads should be the cost of the owner to
generate the electricity rather than the
market price it could be sold at. EPA has
reviewed FERC Form 1 for
PacifiCorp 145 and has incorporated in
our revised costs for each plant the
stated cost of electricity per net kWh.
For Laramie River Station, the costs in
their July 2008 BART analysis 146 are
used, as these are more consistent with
PacifiCorp’s reported cost of generation
(as reported to FERC) than the values
later used by Basin Electric or by EPA
in our original cost analysis (that our
proposed action was based on), which
are more reflective of retail power prices
rather than the cost to generate.
Comment: One commenter argued
that the IPM model is not appropriate
for generating site-specific cost
estimates to evaluate the costeffectiveness of BART projects because
it does not account for those sitespecific requirements that significantly
impact overall project costs.
Response: As described in our
proposal, the IPM is a multi-regional
linear programming model of the U.S.
electric power sector. IPM relies upon a
very large number of data inputs and
provides forecasts of least-cost capacity
expansion, electricity dispatch, and
emission control strategies for meeting
145 FERC Financial Report, FERC Form No. 1:
‘‘Annual Report of Major Electric Utilities,
Licensees and Others and Supplemental Form 3Q:
Quarterly Financial Report, PacifiCorp, Year/Period
of Report 2010/Q4,’’ pgs 402.2, 403, 403.2, see line
35.
146 Black & Veatch, ‘‘Basin Electric Power
Cooperative Laramie River Station Refined BART
Visibility Modeling,’’ July 24, 2008, pg 25 of 176.
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energy demand and environmental,
transmission, dispatch, and reliability
constraints. EPA has used IPM to
evaluate the cost and emissions impacts
of proposed rules, such as the recent
Mercury and Air Toxics Standard
(MATS).147
We wish to clarify that, for our
proposed action on Wyoming’s Regional
Haze SIP, we did not actually run IPM.
Rather, we used information from one
component of IPM, specifically, the
component that develops the costs of air
pollution control technologies. Broadly
speaking, IPM relies upon numerous
components and sub-components to
specify constraints and variable values
that feed into the model algorithms used
during an actual IPM model run. The air
pollution control cost development
component is just one of these
numerous components. We relied upon
the cost information and equations
contained in this component by
manually placing them into a
spreadsheet that calculated the capital,
operating, and maintenance costs
associated with pollution control
options. While we relied upon the
results of these spreadsheet
calculations, we did not then use those
results to run IPM, as the type of
information generated by an actual IPM
model run (e.g., generation dispatch
decisions, capacity decisions) is not
relevant to our action.
We documented our use of the
equations from IPM’s air pollution
control technology cost component by
placing the raw cost calculation
spreadsheets in the docket for our
proposal.148 These spreadsheets contain
the IPM equations, corresponding
variable values, selected notes regarding
assumptions and variable ranges, as
well as selected tables from IPM Base
Case v4.10 documentation. Because we
did not perform an actual IPM model
run, the spreadsheet and contractor’s
report in the docket for our proposal
sufficiently document our use of the
cost methodologies from the IPM air
pollution control cost component.
We disagree with commenters’
characterization of the costdevelopment methodology contained in
IPM as generalized and inadequate for
performing site-specific cost estimates.
As noted in the documentation for
IPM’s cost-development methodology
for SCR, the methodology is based upon
147 http://www.epa.gov/airmarket/progsregs/epaipm/docs/SuppDoc410MATS.pdf.
148 Wyoming EGU BART and Reasonable Progress
Costs—10/28/2013; Wyoming EGU BART and
Reasonable Progress Costs for Jim Bridger—10/28/
2013.
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two databases of actual SCR projects.149
These databases include 2004 and 2006
industry cost estimates prepared for the
Midwestern Ozone Group, and a
proprietary in-house database
maintained by engineering firm Sargent
& Lundy. The Midwestern Ozone Group
information was cross-referenced with
actual 2009 projects, and escalated
accordingly. Sargent & Lundy then used
the information in these databases to
develop the equations described in the
cost component, taking into account the
pre-control NOX emission level, degree
of reduction, coal type, facility size, and
numerous other unit-specific factors.
While a costly engineering evaluation
that included site visits in addition to
use of satellite imagery might produce a
more refined cost estimate, we disagree
that our approach does not produce sitespecific estimates. As noted by EPA in
response to other comments, EPA’s use
of satellite imagery enabled us to
evaluate each of the major site-specific
issues raised by commenters.
Specifically, we input several sitespecific factors, such as fuel type,
baseline NOX level, reagent cost and
type, level of NOX reduction, sitespecific power and reagent costs, etc.
into the algorithm. The algorithm also
provides for adjustment of cost to
account for retrofit difficulty. The CCM
at section 2.5.4.2 (page 2–28 of Section
1 Chapter 2) calls for a retrofit difficulty
factor to account for the site-specific
costs associated with a retrofit, such as
demolition or moving existing
equipment, etc. A retrofit factor is also
used in the IPM algorithm, making it
consistent with the approach used in
the CCM. Per the documentation for the
IPM algorithms: ‘‘The formulation of the
SCR cost estimating model is based
upon two databases of actual SCR
projects. The comparison between the
two sets of data was refined by fitting
each data set with a least squares curve
to obtain an average $/kW project cost
as a function of unit size. The data set
was then collectively used to generate
an average least-squares curve fit. The
least squares curve fit was based upon
an average of the SCR retrofit projects.
Retrofit difficulties associated with an
SCR may result in capital cost increases
of 30 to 50 percent over the base model.
The least squares curve fits were based
upon the following assumptions:
Retrofit Factor =1; Gross Heat Rate =
9880; SO2 Rate = < 3 lb/MMBtu; Type
of Coal = Bituminous; Project Execution
= Multiple lump sum contracts.’’ 150
149 http://www.epa.gov/airmarkets/progsregs/epaipm/docs/v410/Appendix52A.pdf.
150 Sargent & Lundy, ‘‘IPM Model—Revisions to
Cost and Performance for APC Technologies—SCR
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Therefore, the IPM algorithm is based
upon actual retrofit projects. As such,
the average or typical retrofit found for
the retrofit projects evaluated is
assumed to use a retrofit factor of 1.0,
and for more difficult than average
retrofits, a retrofit factor greater than 1.0
would apply. On page 1 of the
documentation of the IPM model for
SCR, it states that ‘‘Retrofit difficulties
associated with an SCR may result in
capital cost increases of 30 to 50% over
the base model.’’ Therefore, EPA
expects that retrofit difficulty factors
may apply up to around 1.50 at the
maximum. In effect, project elements
that are typically included in an SCR
retrofit are accounted for in the cost
estimated by the algorithm, and
deviations from those typical costs can
be addressed by a retrofit factor. In fact,
the algorithm expressly calls for a
retrofit factor that can be varied (see
Table 1 of reference, variable ‘‘B’’),
which makes it consistent with the
retrofit difficulty factor method called
for in the CCM. And, because the IPM
algorithm is based upon actual projects,
it already incorporates contingency.
Finally, the IPM algorithm can be
modified for other effects, such as
elevation, and EPA has since examined
this and modified its estimates in this
final action to correct for the effects of
altitude.
Comment: One commenter alleged
that site elevation was not reasonably
accounted for in EPA’s cost estimates,
particularly for PacifiCorp’s Naughton
Units 1 and 2 and Dave Johnston Unit
3. The commenter explained that
algorithms in the IPM model were
developed for a generic coal-fired power
plant located at or near sea level.
However, site elevation can have a
significant impact on control system
sizing and design. Thus, elevation of the
site must be considered separately and
factored into the unit capacity (i.e.
megawatts) accordingly due to its effects
on the flue gas volume. The commenter
pointed out that PacifiCorp’s Wyoming
BART units are located at elevations
ranging from approximately 5,000 to
7,000 feet above mean sea level. At this
elevation, flue gas flows will be 20–30
percent higher than similarly sized units
at mean sea level. The higher flue gas
flow requires larger ductwork, larger
reactors, and more robust support
structures, and these items have a
profound influence on the overall
project cost. While Wyoming had this
information available in its SIP, EPA
failed to account for site elevation in its
FIP.
Cost Development Methodology, FINAL’’, August
2010.
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Response: EPA agrees with
commenter that higher altitudes will
increase the volume of flue gas, making
it necessary to increase the crosssectional area of associated ductwork
and the SCR reactor. Increased flue gas
volume also impacts the fan design.
Consequently, EPA has revised its cost
calculations for SCR in this final action
to address issues associated with plant
altitude. While altitude has a significant
impact on the cost of SCR, it does not
make a significant difference in the cost
of SNCR because altitude does not affect
the urea flow rate or the associated urea
storage system, urea circulation system,
or metering/mixing/pumping systems.
There may be a slight increase in the
number of injectors due to increased
furnace cross-section, but this is
expected to be a small part of the total
cost of an SNCR system.
Comment: The same commenter
argued that site configurations were not
reasonably accounted for in EPA’s cost
estimates, particularly for the Naughton
Units 1 and 2 and Dave Johnston Unit
3. The IPM model applies a retrofit
factor to account for the difficulty of
fitting new BART equipment into the
existing site configuration. The Andover
Report states that site visits were not
possible. Thus, retrofit factors for
Naughton Units 1 and 2, and Dave
Johnston Unit 3 were determined based
on a review of Google EarthTM images of
the station. Accordingly, the Andover
Report applied retrofit factors for the
units that are highly subjective based on
minimal site information. The
commenter argued that, when preparing
site-specific cost estimates, site visits
must be conducted to evaluate the true
complexity associated with the retrofit
and to assess specific modifications to
the plant that would be required to
overcome issues associated with
congestion, as well as difficulties
associated with construction. Neither
Andover nor EPA sought permission
from PacifiCorp to visit the sites of the
BART units, nor did Andover explain
why it ‘‘wasn’t possible’’ to do so. Both
Sargent & Lundy and Babcock and
Wilcox have extensive experience with
PacifiCorp’s Naughton and Dave
Johnston facilities. Just since 2005,
Sargent & Lundy has been contracted by
PacifiCorp to perform 14 projects at
Dave Johnston station and over 25
projects at Naughton station. These
projects range from site evaluations,
studies, detailed engineering, or
functioning as PacifiCorp’s Owner’s
Engineer for major environmental
retrofit engineer, procure, and construct
projects. From having conducted many
site visits at these stations, Sargent &
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Lundy is very aware of site-specific
congestion and construction challenges
that would affect SCR installations at
Naughton Units 1 and 2 and Dave
Johnston Unit 3. Similar to Sargent &
Lundy’s site-specific experience,
Babcock and Wilcox has recently
completed major environmental retrofit
projects on Naughton Units 1 and 2 (wet
scrubber additions) and Dave Johnston
Unit 3 (dry scrubber and baghouse
addition), making Babcock and Wilcox
uniquely positioned to offer budgetary
cost estimates for further retrofits to
those facilities with significant firsthand knowledge. While Wyoming had
much of this information available in its
SIP, EPA failed to account for this sitespecific information in its FIP.
Response: EPA disagrees with the
commenter. EPA did account for sitespecific factors when performing its cost
estimates. Because SCRs are built on or
next to the boiler structure, they are
often elevated, and there is usually
equipment in one direction (the boiler)
or the other (other air pollution control
equipment, like an electrostatic
precipitator (ESP), scrubber, or
chimney) that limits access. This issue
is complicated further with boilers that
are located adjacent to one another—a
common configuration. Due to the
height of the SCR, large cranes play a
vital role in their construction. The
location of cranes next to where the SCR
is going to be built can be difficult.
As noted in a paper by Babcock &
Wilcox,151 key issues for SCR
constructability are site access and
ability to locate a crane and the
resulting erection sequence. The
erection sequence is impacted by the
crane that is available and whether it
can fit on site because the crane and its
location will limit the size of material
that can be lifted into place. A larger
crane allows for the lifting of larger
pieces of ductwork, resulting in fewer
lifts and less fabrication in the air.
Without adequate access for a crane and
proximity to a lay-down area for
material, erection must be done with
smaller pieces, which will require more
labor and expense.
Access around and between the
boilers will determine crane location
and location of material receiving areas.
In some cases, it may be necessary to
demolish equipment or buildings in
order to gain adequate access. In other
cases, it may be necessary or preferable
to erect cranes on the top of the boiler
structure (as was performed for the SCR
151 Hines, J.A., Kokkinos, A., Fedock, D.,
‘‘Benefits of SCR Design for Constructability’’,
Power Gen, International 2001, December 11–13,
2001, Las Vegas
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installed at Dominion’s Brayton Point
Unit 3).152
Because of its easy availability and it
usefulness in providing a ‘‘bird’s eye’’
view of the site congestion (how close
equipment is located to each other,
room for a crane, etc.), site access, local
transportation options, availability of a
lay-down area to locate material on site,
and other limitations around the site,
satellite imagery has become a very
important tool in evaluating these sitespecific factors. In fact, the major air
pollution control original equipment
manufacturers use satellite imagery to
assist them in estimating site congestion
issues, determining location of
construction equipment and other
limitations on and around the site in
this way. Site visits are also useful, but
are normally performed in addition to
rather than in lieu of careful
examination of satellite images. For
example, in their comments to EPA in
2010, the Utility Air Regulatory Group
used satellite photographs to
demonstrate the relative difficulty of
different SCR installations.153
While a site visit can be useful and
provide additional information,
assessing satellite imagery provides
adequate information to determine
access to the site, access around the
boilers, availability of space for locating
construction equipment and materials,
and whether buildings or equipment
must be demolished to make room for
the equipment. Notably, the budgetary
price provided to PacifiCorp from
Babcock & Wilcox was not developed
from a site visit. Per the cover page of
the budgetary proposal, ‘‘[g]iven the
budgetary nature of this request, we
have not made site visits to consider
layout options: instead, we have used
available drawings and made necessary
assumptions to enable us to establish a
basis to derive quantities of material and
associated costs.’’
For SCR installations, site visits and
more detailed boiler drawings provide
additional information regarding air
preheater location and whether it must
be relocated to make room for the SCR,
or if ductwork limitations require
demolition of other large pieces of
equipment such as ESPs. Such costs
will significantly increase the cost of
retrofitting an SCR. However, relocation
of the air preheater or ESP was not
identified as a concern by any of the
commenters. Instead, most commenters
152 Wright, B., Erickson, C., Phillipo, M., ‘‘Keys to
Success: SCR Installations at Dominions Brayton
Point Units 1 and 3’’, Electric Power, May 2008.
153 Cichanowicz, E., ‘‘Current Capital Cost and
Cost-Effectiveness of Power Plant Emissions Control
Technologies’’, Prepared for Utility Air Regulatory
Group, January 2010.
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raised retrofit issues that are commonly
encountered in SCR retrofits, including
location of SCR support steel and
possible interferences with other
equipment on site; penetration of boiler
building by SCR ductwork; location of
cranes for units that are side-by-side; the
need for increased fan capacity and
associated electrical modifications; and
stiffening of ductwork due to increased
pressure drop from SCR. As a result, the
retrofit costs in the IPM algorithms that
were developed from actual SCR
projects should capture these more
common retrofit issues and to the extent
that some situations seem more
difficult, can be addressed with retrofit
factors.
In its cost estimates, PacifiCorp
provided a long comparative table (over
100 rows with 25 columns of data) for
Dave Johnston 3 and Naughton 1 and 2
showing different cost estimating
methods. The table showed vendor
budgetary pricing for Direct Capital
Costs based upon a proposal from
Babcock & Wilcox. While EPA accepts
the proposal from Babcock & Wilcox as
part of our final action, we have a few
general comments. The proposal, while
providing a detailed total scope of
supply, provides a total cost for the
project without line items. In addition,
the items included under the Owner’s
scope by Black and Veatch are limited
to: Boiler modifications; air-preheater
modifications; medium voltage power
source; asbestos, lead, and
polychlorinated biphenyls (PCB)
remediation; commercial licenses and
permits; and spare parts. Some of these
costs, such as air-preheater
modifications, will not be required,
while others will have a small to modest
impact on the overall cost. Notably, the
cost estimate includes items like potable
water systems, fire protection, service
water, other assorted auxiliaries, as well
as roads, fences, etc. Therefore, the
proposal is close to being ‘‘turnkey’’ and
includes nearly all costs for the project.
It also includes some items that would
fall into the category of General
Facilities. The proposal assumes that
other modifications to the Naughton
plant will result in abandonment of
existing chimneys and ESPs on Units 1
and 2. Currently, these chimneys are in
service. Babcock & Wilcox also
determined that the existing fans are
likely to be sufficient for the additional
draft loss from the SCR. As was noted
in the Andover Report, we think that
there may be some substantial
conservatism built into the Babcock and
Wilcox estimate. For example, the
proposal states that the offset of
Naughton Units 1 and 2 is just enough
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to make it impractical to make a
common structure for both SCR reactors.
However, examination of the drawings
in the proposal shows that Babcock &
Wilcox has sized the ductwork to
compensate for the offset so that the
SCR reactors should be able to be
supported with a common structure.
Also, the proposal assumes that the
abandoned stacks at both sites will be
dismantled, although this does not
appear to be necessary for Naughton
Unit 2 and may not be necessary for
Dave Johnston Unit 3 if shorter
horizontal duct runs are used. Finally,
comparison of the cost estimate
provided by PacifiCorp for Naughton
Unit 1 and 2, and Naughton 1
especially, to historical costs shows that
the costs are well in excess of what
other SCRs have cost. This is
particularly perplexing because
additional fan capacity is not needed,
and it is not necessary to move the air
preheater.
In light of the proposal and its fairly
comprehensive scope of supply,
PacifiCorp’s capital cost estimate
included a number of items that EPA is
not including in our cost estimate, as
noted below:
1. Process Contingency: Although the
CCM permits a process contingency of
5%, in EPA’s opinion this is not
necessary today for SCR on coal-fired
boilers firing the coals used in
Wyoming. According to the Department
of Energy’s National Energy Technology
Laboratory,154 ‘‘Process contingency is
intended to compensate for uncertainty
in cost estimates caused by performance
uncertainties associated with the
development status of a technology.
Process contingencies are applied to
each plant section based on its current
technology status.’’ According to the
document, for commercially available
technologies, process contingency could
range from 0–10%.
When the CCM was issued in January
2002, SCR was commercially available
but was only emerging in application on
coal-fired utility boilers in the U.S.
According to a study by
Cichanowicz,155 there was only about
13,000 MW of coal-fired capacity using
SCR in the U.S. at the end of 2001, with
nearly all SCRs installed in the prior
two years, meaning that there was very
limited long-term experience with SCR
on coal-fired units. SCR usage on coal154 U.S.
Department of Energy, National Energy
Technology Laboratory, ‘‘Cost Estimating
Methodology for NETL Assessments of Power Plant
Performance’’, DOE/NETL–2011/1455, April 2011,
pg 4.
155 From data in Cichanowicz, J., Muzio, L., Hein,
M., ‘‘The First 100 GW of SCR in the U.S.,—What
Have We Learned?’’—2006 Mega Symposium.
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fired boilers has since increased about
ten-fold to about 130,000 MW of coal
capacity (over 40% of all U.S. coal
capacity), and is therefore a very well
proven and well understood technology
on a wide range of U.S. coals, including
Powder River Basin coal. As a result, the
process contingency for SCR on coalfired utility boilers should be much
lower today than what it was when the
CCM was issued in January 2002, which
was 5%. EPA believes that for SCR
applications on utility boilers burning
Powder River Basin coals (the Wyoming
utility boilers), which are very well
understood SCR applications, there
should not be any need for process
contingency.
2. Project Contingency: Because the
cost estimates developed for PacifiCorp
are already very conservative and based
upon detailed estimates of the labor and
materials to build the SCR, a 15%
project contingency is excessive.
According to the CCM at Section 1.1,
Chapter 1, pages 1–4: ‘‘The accuracy of
the information in the Manual works at
two distinct levels. From a regulatory
standpoint, the Manual estimating
procedure rests on the notion of the
‘‘study’’ (or rough order of magnitude—
ROM) estimate, nominally accurate to
within ± 30%. This type of estimate is
well suited to estimating control system
costs intended for use in regulatory
development because they do not
require detailed site-specific
information necessary for industry level
analyses.’’
The methods and cost elements of the
CCM were adapted from the American
Association of Cost Engineers, or AACE
(CCM Section 1, Chapter 2, pages 2–5).
AACE 16R–90 156 states that, ‘‘Project
Contingency is included to cover the
costs that would result if a detailed-type
costing was followed as in a definitivetype study.’’ According to National
Energy Technology Laboratory (NETL),
‘‘AACE 16R–90 states that project
contingency for a ‘budget-type’ estimate
(AACE Class 4 or 5) should be 15% to
30% of the sum of [bare erected cost],
[engineering, procurement, and
construction] fees and process
contingency.’’ 157 AACE 18R–97 defines
different classes of estimates, from Class
5 (least detailed) to Class 1 (most
detailed).158 The methodology used in
the CCM falls into a Class 4 or Class 5,
156 AACE Recommended Practice, AACE 16R–90;
www.aacei.org/non/rps/18R-90.pdf.
157 U.S. Department of Energy, National Energy
Technology Laboratory, ‘‘Cost Estimating
Methodology for NETL Assessments of Power Plant
Performance’’, DOE/NETL–2011/1455, April 2011,
pg 5.
158 AACE Recommended Practice, AACE 16R–87;
www.aacei.org/non/rps/18R-97.pdf.
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while the methodology used by
PacifiCorp’s contractor, Babcock and
Wilcox, is clearly a far more detailed
estimate that does not leave out any
aspect of the project. Therefore, the
project contingency factor is not
applicable. The 15% project
contingency factor in the CCM for SCR
is based upon use of the cost-estimating
method described in the CCM to
develop the Total Direct Capital Costs.
It is not intended to apply to a detailed
estimate that:
• Includes many cost items not
explicitly included in the estimating
method described in the CCM to
develop the Total Direct Capital Costs
and meant to be included in the 15%
project contingency; and
• Already has substantial contingency
built into it through conservative
assumptions.
In fact, the CCM discusses the
importance of not double-counting
contingency in multiple places, such as
retrofit factor and contingency: ‘‘Due to
the uncertain nature of many estimates,
analysts may want to add an additional
contingency (i.e., uncertainty) factor to
their estimate. However, the retrofit
factor is a kind of contingency factor
and the cost analyst must be careful to
not impose a double penalty on the
system for the same unforeseen
conditions. Retrofit factors should be
reserved for those items directly related
to the demolition, fabrication, and
installation of the control system. A
contingency factor should be reserved
(and applied to) only those items that
could incur a reasonable but
unanticipated increase but are not
directly related to the demolition,
fabrication, and installation of the
system. For example, a hundred year
flood may postpone delivery of
materials, but their arrival at the job site
is not a problem unique to a retrofit
situation.’’ (emphasis added). The CCM,
therefore, explicitly anticipates that
some analysts may, incorrectly, apply
multiple contingencies for the same
areas of uncertainty even when using
the methods described in the CCM for
estimating Total Direct Capital Costs.
Because the cost estimates developed
for PacifiCorp are already very
conservative and based upon detailed
estimates of the labor and materials to
build the SCR, rather than study-level
estimates, they have double-counted
both the costs that are intended by the
CCM to be included in the project
contingency when using the CCM
method, plus they have added
additional contingency in the form of
conservative assumptions to address
uncertainties in their estimate. For this
reason, a 15% project contingency is
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excessive, and we have not revised our
cost estimates to include one.
3. General Facilities: The cost
estimate from Babcock & Wilcox,
submitted by PacifiCorp, includes
several items that would fall into the
category of General Facilities, and in
order to avoid double-counting, EPA has
not included an additional line item for
General Facilities.
Comment: The same commenter
suggested that the project-specific
scopes were not reasonably accounted
for in EPA’s cost estimates, particularly
for Naughton Units 1 and 2 and Dave
Johnston Unit 3. Additional projectspecific scope concerns (related to the
addition of SCR on-site) include limited
capacity of the existing induced-draft
fans and auxiliary power system, as well
as National Fire Protection Associationrelated equipment reinforcement
requirements. Larger, more powerful,
induced-draft fans may overload
existing electrical systems, and the
electrical systems may require
significant modifications. Structural
stiffening of the duct work, and
equipment downstream of the boiler
and upstream of the new fans may also
be required by National Fire Protection
Association regulations to operate at
more negative pressures due to the
installation of the SCR. These types of
costs are not generally reflected in the
base case IPM cost algorithms, but they
must be taken into consideration in the
development of a project-specific cost
estimate. Wyoming had this information
available in the Wyoming SIP, but EPA
failed to account for this important cost
information in its FIP.
Response: All SCR systems
experience a pressure drop across the
SCR, and therefore some consideration
must be made to fan capacity for every
SCR system. The algorithm used by EPA
explicitly includes a ‘‘balance of plant’’
cost line item such as an allowance for
additional fans and auxiliary electrical
work.159 As for the duct stiffening, this
is frequently necessary when new fans
are installed. However, as noted in the
proposal by Babcock & Wilcox,
additional fan capacity is not expected
to be necessary at Naughton Units 1 and
2 or Dave Johnston Unit 3.
Comment: The same commenter
alleged that Owner’s costs were not
reasonably accounted for in EPA’s cost
estimates, particularly for Naughton
Units 1 and 2 and Dave Johnston Unit
3. Owner’s Costs include a variety of
non-financial costs incurred by the
159 Sargent & Lundy, ‘‘IPM Model—Revisions to
Cost and Performance for APC Technologies—SCR
Cost Development Methodology, FINAL’’, August
2010, Table 1, pg. 5.
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owner to support implementation of the
air pollution control project. Owner’s
Costs are project-specific, but generally
include costs incurred by the owner to
manage the project, hire and retain staff
to support the project, and costs
associated with third party assistance
associated with project development
and financing. Owner’s Costs are real
costs that the owner will incur during
the project and are typically included in
cost estimates prepared for large air
pollution control retrofit projects. In
fact, EPA’s Coal Quality Environmental
Cost (CUECost) model includes Owner’s
Costs (or ‘‘Home Office’’ costs) in its air
pollution control system cost estimating
workbook and interrelated set of
spreadsheets. See CUECost Workbook
User’s Manual Version 1.0, prepared by
Raytheon Engineers & Contractors, Inc.
and Eastern Research Group, Inc., EPA
Contract No. 68–D7–0001, Appendix B,
pages B–3 and B–6. Wyoming had this
information available in its SIP, but EPA
failed to account for this important cost
information in its FIP.
Response: Home office fees are
Owner’s costs, and these are accounted
for in the CCM in the 10% allowance for
Engineering and Owner’s Costs. See
CCM at Section 4.2, Chapter 2, page 2–
44). As described in Table 2.5 of the
CCM, engineering and home office fees
represent 10% of purchased equipment
costs. In this respect, we agree with the
commenter’s assertions that the CCM
does discuss some of the items that roll
up into these line items. For example,
the CCM does provide for ‘‘Engineering
and Home Office Fees’’ that includes the
home office and plant support costs
described in the comments. We have
included the portion of Owner’s Costs/
Surcharge in the total cost, up to the
value specified for ‘‘Engineering and
Home Office Fees’’ indicated by the
CCM, which is 10%.
The cost factors used in the CCM
include home office fees in the 10% that
is applied to engineering fees; however,
the line item for Owner’s Cost in the
IPM estimate was made zero. The reason
Owners Cost was removed is that the
CCM includes owner’s cost with the
10% for engineering and home office
fees. A 10% engineering charge was
already applied and therefore an
additional allowance for home office
fees would be greater than the cost
allowed under the CCM. Even if that
cost were added at a 5% rate, it would
increase capital cost by 5%. This
difference would not change the
determination.
Comment: The same commenter
argued that regional labor concerns were
not reasonably accounted for in EPA’s
cost estimates, particularly for Naughton
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Units 1 and 2 and Dave Johnston Unit
3. Regional labor concerns are not
accounted for in the IPM model.
Regional labor characteristics must be
taken into consideration in a sitespecific cost estimate to account for
factors including labor availability,
project complexity, local climate, and
working conditions. Because the
Naughton and Dave Johnston facilities
are in relatively remote locations, higher
labor rates must be paid to attract the
kind of skilled workers required to
construct an SCR project. In addition,
the locations are subject to extreme cold
and wind that can result in significant
productivity and construction
challenges and delays, adding to the
overall project cost. Wyoming had this
information available in its SIP, but EPA
failed to account for this important cost
information in its FIP.
EPA’s flawed analyses of incomplete
‘‘new’’ cost information directly
resulted in EPA’s proposed
requirements for PacifiCorp to install
SCR on Naughton Units 1 and 2 and
Dave Johnston Unit 3. In contrast, to be
responsive to EPA’s request for
additional information, PacifiCorp has
solicited budgetary project-specific cost
information from Babcock and Wilcox,
an active and uniquely positioned
competitive market participant for SCR
technology, for these same units. In
conjunction with Sargent & Lundy’s
expertise, PacifiCorp has incorporated
the site-specific budgetary cost
information from Babcock and Wilcox
into updated EPA CCM side-by-side
comparisons with the Andover Report
results to further demonstrate the
inaccuracies in the new cost
information developed by EPA. (The
following included tables to summarize
the results of these comparisons.) It is
important to note that PacifiCorp has
utilized a 20-year remaining equipment
life and has excluded AFUDC from the
results in the tables for comparison
purposes.
As demonstrated by the results in the
tables, EPA significantly understated
costs per ton of pollutant removed. As
such, EPA based its cost-effectiveness
conclusions on significantly inaccurate
information. Before taking any final
action on the proposed FIP, EPA must
consider in its final BART analyses the
additional cost information being
provided by PacifiCorp.
Response: EPA disagrees with this
comment. The commenter claims that
remote locations require offering higher
wage rates and that conditions at the
site, including inclement weather,
reduce worker productivity. Because the
commenter claims that these are
important factors that impact cost, the
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commenter should have provided data
to support its assertions. The
commenter did not provide any data to
demonstrate that wage rates in the area
near its facilities are higher than in more
populated areas. The commenter also
did not provide any specific
productivity factors or other evidence to
show how the commenter arrived at its
man-hour estimates or explain how
those estimates differ from a normal
productivity. Without such information,
EPA cannot review and validate the
commenter’s claims that labor
productivity is low or that labor cost is
high.
On the other hand, labor rates for
union construction labor are available
from the Construction Labor Research
Council (CLRC),160 and these rates are
consistently well below what appears to
have been assumed in the itemized
estimate provided with Basin Electric’s
comments. The difference is too large to
be explained by per diem. Because both
Basin Electric and PacifiCorp used
Sargent & Lundy to prepare their cost
estimates, it is reasonable to assume that
both companies have made similar
assumptions. Moreover, in addition to
the high labor rates assumed, there are
additional line item costs for overtime
and per diem. As a result, the estimates
provided by commenters appears to
incorporate additional costs or
provisions well beyond the normal costs
both in the labor rates and in the line
item for additional labor costs.
While EPA welcomes the use of SCR
vendor estimates, such as those used by
PacifiCorp, or engineering estimates,
such as those provided by Basin
Electric, specific details supporting the
estimates must be provided in order for
them to be useful. Without details on
the scope of supply, the estimates
cannot be used as a reliable source of
information because vendor scope could
potentially be in error or could be
duplicative of other costs included in
the estimate elsewhere.
With regard to adjustment for regional
labor concerns, neither PacifiCorp nor
Basin Electric’s submittals were
satisfactory. Deficiencies in Basin
Electric’s submittal with regard to
regional labor concerns are addressed
elsewhere in these responses to
comments. The proposal from Babcock
& Wilcox, while showing a total lump
sum price, did not demonstrate how
they factored in regional labor concerns.
Comment: The IPM methodology
relied upon in the Andover Report is
160 Construction Labor Research Council Union
Wages and Supplements, available from the
National Construction Boilermaker Employers Web
site, www.nacbe.com.
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inconsistent with the assumptions set
forth in the CCM. While EPA states that
its revised cost analyses ‘‘followed the
structure of the EPA CCM,’’ EPA
acknowledges that ‘‘we have largely
used the Integrated Planning Model cost
calculations to estimate direct capital
costs and operating and maintenance
costs.’’ 78 FR 34749. See also Andover
Update (‘‘In estimating the costs of
controls, the following were considered:
IPM Cost Models, US EPA Air Pollution
CCM.’’). The IPM model is a regulatory
model that uses cost algorithms
developed by Sargent & Lundy to
estimate system-wide costs of air
pollution technology for adoption of
national regulations. The inputs in the
IPM model do not conform to the
methodology set forth in the CCM, and
neither Andover nor EPA offers any
explanation for the discrepancies. This
failure epitomizes the arbitrary and
capricious nature of EPA’s decision
making.
A careful reading of the Andover
Report evidences that Andover only
followed the CCM on a limited basis,
and in doing so, read into the CCM
requirements that are non-existent,
while ignoring wholesale many of the
CCM’s recommendations. The following
language from the report illustrates the
concern: ‘‘The BART Guidelines
recommend use of the EPA Air
Pollution CCM, and the methodology
used here for estimating costs is
consistent with the recommendations in
the manual, such as inclusion of taxes,
insurance and administrative costs, and
the use of overnight cost for capital
cost.’’
As an initial matter, the CCM does not
anywhere recommend the use of
‘‘overnight cost’’ for estimating capital
costs. See Section XI.B.3. The overnight
approach assumes construction of a
project ‘‘overnight,’’ which means a
party would not incur any interest
charges, including AFUDC, or
experience any cost escalations. While a
‘‘constant dollar approach’’ may be read
to exclude escalation, the CCM does not
recommend that users assume that the
interest costs related to constructing a
capital-intensive, multi-year project will
cost the same as an off-the-shelf control
technology that can be installed in a
day. Furthermore, based on the
acknowledgment in its report, Andover
appears only to have followed the
methodology set forth in the CCM in
these three limited respects. In all other
respects, Andover relied on the IPM cost
algorithms for its SCR estimate, without
regard to the CCM. For SNCR capital
costs, Andover relied on an assumed
$20/kW cost rather than using the IPM
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algorithms or the methodology set forth
in the CCM.
The high-level cost algorithms in the
IPM model and the assumed $20/kW
capital cost for SNCR resulted in a
substantial underestimate of the costs of
designing and constructing both the
SCR and SNCR systems. For example,
the only inputs to the IPM cost modules
are unit size, heat input, fuel type, and
NOX removal efficiency. The CCM uses
these inputs, but also provides for using
SCR design parameters, such as flue gas
flow rate, actual stoichiometric ratio
(the amount of reagent needed to
achieve target NOX emissions), space
velocity and area velocity (a measure of
flue gas resident time in the SCR
reactor), catalyst volume, SCR reactor
dimensions, and reagent consumption.
The CCM methodology includes similar
design parameters specific to SNCR,
which the IPM model does not include
and which Andover did not consider in
its cost estimate.
Andover also used the IPM model to
calculate indirect capital costs in the
SCR cost estimate. The IPM model
includes in its indirect capital cost
algorithm factors for Engineering and
Construction Management, Labor, and
Contractor Profit/Fees. Andover
removed from the IPM capital cost
calculation both Owner’s Costs and
AFUDC. Moreover, the IPM Model does
not include a number of other inputs
that are included in the CCM, including
preproduction costs, inventory capital,
and initial catalyst costs, and Andover
did not adjust the model to incorporate
these additional costs. Andover’s
selection of certain IPM model inputs
and exclusion of inputs in the CCM
resulted in the substantial
underestimation of the indirect capital
costs necessary to design and install an
SCR system.
For SNCR, Andover arbitrarily
assigned a capital cost of $20/kW,
without using the IPM algorithms or
performing an analysis of direct and
indirect costs consistent with the CCM.
Andover relied on the IPM model to
calculate operating and maintenance
costs except for urea reagent costs for
SNCR, which uses factors that differ
from those recommended in the CCM
and costs utilized by Sargent & Lundy.
The model’s simplistic treatment of
catalyst costs, for example, is
inconsistent with the recommendations
in the CCM and underestimates annual
catalyst replacement costs for SCR and
for SNCR. For SNCR, Andover adjusted
the urea utilization rate from the IPM
model without explanation, which cut
in half estimated annual urea costs.
Andover also assumed urea would be
used as the reagent for SCR, which
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increased reagent costs above those
calculated by Sargent & Lundy based on
the use of anhydrous ammonia.
Neither Andover nor EPA explains
why the cost estimate uses only limited
portions of the CCM, or why Andover
believes use of the IPM cost
methodology is somehow more
representative of the costs of control
that would be incurred by Basin Electric
for installation of SCR and SNCR
systems. It is inherently contradictory,
and therefore arbitrary and capricious,
for EPA to base its proposed disapproval
of Laramie River BART on the alleged
failures of Wyoming to follow the CCM,
while at the same time relying on a
consultant’s report that does not comply
with those same standards.
Response: EPA disagrees with the
commenter. The methodology used by
EPA is consistent with the CCM for the
following reasons: (1) EPA used the
overnight cost method, which excludes
certain cost elements such as AFUDC;
(2) The comparative nature of BART
costs makes use of the IPM algorithms
a reasonable approach; and (3) as
demonstrated in the Exhibit 14 of Basin
Electric’s comments, use of the cost
equations in the CCM would have
actually resulted in lower costs than
predicted by the IPM algorithms.
Moreover, both the IPM algorithms
and Sargent & Lundy’s estimates for
Basin Electric are empirically based
from data collected at other projects.
According to page 21 of Exhibit 14 to
Basin Electric’s comments: ‘‘. . . Cost
estimates prepared for LRS are based on
equipment costs and budgetary quotes
available from similar projects and
Sargent & Lundy’s experience with the
design and installation of retrofit SNCR
and SCR control systems. The LRS cost
estimates are conceptual in nature; thus,
Sargent & Lundy did not procure
equipment quotes specifically for the
LRS control systems. Rather, equipment
costs for the LRS projects are based on
conceptual designs developed for the
control systems, preliminary equipment
sizing developed for the major pieces of
equipment, and recent pricing for
similar equipment . . .’’ As a result, the
estimates provided by Basin Electric are
not more valid than those developed by
EPA.
Commenter claims that AFUDC
should be included in the cost analysis.
As described in our responses to other
comments, the CCM explicitly excludes
AFUDC from control costs, and EPA’s
estimates were correct in excluding
AFUDC. This is central to the overnight
cost methodology.
Commenter is critical of EPA’s
method for estimating SNCR capital
cost. With regard to SNCR cost
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methodology, the cost of SNCR is driven
primarily by the operating cost. Capital
cost has a small effect on total cost of
SNCR. Therefore, a simplifying
assumption that yields a reasonable
estimate of capital cost will result in an
annualized cost accurate to within ±
30%. Based upon input from technology
vendors on cost for other units 161 and
based upon the fact that EPA’s
contractor Andover has over 25 years of
direct experience designing, specifying
and optimizing SNCR systems, $20/kW
was a very reasonable estimate. EPA’s
contractor also reviewed the SNCR
algorithms developed by Sargent &
Lundy for EPA and is of the opinion
that in most cases $20/kW provides a
better estimate than the IPM algorithm
because the IPM algorithm assumes
greater economies of scale than
generally exist in SNCR applications.
On the other hand, as will be
described later in this response, the high
reported furnace temperature at Basin
Electric’s Laramie River Station means
that SNCR will require a more complex
injection system and will have a higher
urea injection rate than what is typical
for most SNCR systems. For this reason
EPA has accepted the capital cost of
SNCR estimate provided by Basin
Electric. In any event, SNCR capital cost
generally has a small effect on cost
compared to operating cost.
Commenter is critical of EPA’s use of
the IPM algorithm as not utilizing the
same input design parameters. As
described in other responses to
comments, the IPM algorithm for SCR
incorporates either directly or by
inference all of the inputs the
commenter has raised. But, commenter
is incorrect about some of the claimed
inputs. Stoichiometric ratio, space
velocity, area velocity, catalyst volume,
SCR reactor volume, and reagent
consumption are not inputs to an SCR
design, but are all direct results of
design calculations using the inputs of
initial NOX level, final NOX level (and
by inference percent reduction), unit
size, heat rate, and fuel characteristics—
all inputs to the IPM model. Gas flow
rate is also normally calculated based
upon fuel type, unit size and heat rate—
again, IPM inputs. The IPM model
therefore directly develops SCR reactor
cost based upon all of the same inputs,
but using algorithms based upon a
database of the cost of actually
constructed units. Other costs, such as
preproduction costs and initial
inventory of ammonia are incorporated
into the capital costs. In any event, these
161 Email from Alex Dainoff, Fuel Tech, to James
Staudt, Andover Technology Partners, Wednesday,
June 27, 2012.
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5143
are very small portions of total cost.
Initial catalyst cost is incorporated into
the direct capital costs of the project in
the IPM estimate, and in any event,
initial catalyst cost is typically a very
small portion of total capital cost.
Commenter is critical of EPA’s
treatment of the associated costs for
replacement catalyst. Regarding
treatment of catalyst cost, EPA’s
approach is reasonable, factoring in the
NOX reduction, coal, facility size,
capacity factor, and catalyst cost—all of
the same factors that impact catalyst
replacement cost. PacifiCorp, on the
other hand, uses excessive catalyst
replacement costs. PacifiCorp’s use of
$290/ft3 for replacement catalyst cost
equates to $10,422/m3. This is nearly
double the current cost of new catalyst.
The difference cannot be accounted for
in the labor to install catalyst, which is
a very small fraction of the catalyst
cost.162 Moreover, replacement catalyst
is frequently regenerated catalyst which
costs roughly half the cost of new
catalyst. EPA conservatively assumed
new catalyst at roughly $5,500/m3,163
when in fact most catalyst
replenishments will likely be at a much
lower cost due to the extensive
availability of regenerated catalyst. As a
result, EPA’s catalyst costs are much
more reasonable and are in fact,
conservative in light of the availability
of regenerated catalyst.
Commenters are critical of EPA’s
estimates of SNCR reagent consumption.
Because of the importance of reagent
consumption on SNCR system capital
and operating cost, chemical utilization
is an important factor. Utilization is a
measure of how efficiently the SNCR
reagent reduces NOX. With SNCR, NOX
reduction does not occur on a one-forone basis as reagent is added because a
portion of the chemical introduced does
not contribute to NOX reduction. The
utilization of reagent (normally urea)
declines as temperature (or carbon
monoxide concentration) increases
because more of the urea becomes
oxidized (forming NOX), which reduces
the amount of reagent available for the
NOX reduction reaction. The net
difference between the amount of NOX
reduced and the amount of NOX formed
equals the overall reduction in NOX,
and at a sufficiently high temperature,
NOX can actually increase as urea is
injected. Hence, furnace temperature is
162 From data in Cichanowicz, J., Muzio, L., Hein,
M., ‘‘The First 100 GW of SCR in the U.S.,—What
Have We Learned?’’—2006 Mega Symposium, page
4.
163 Cichanowicz, J.E., ‘‘Current Capital Cost and
Cost-Effectiveness of Power Plant Emissions Control
Technologies’’ Prepared for, Utility Air Regulatory
Group, January 2010.
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a critical parameter in determining
utilization.
Chemical utilization is equal to the
percent NOX reduction divided by the
treatment rate, expressed in terms of
Normalized Stoichiometric Ratio. The
IPM model assumes a default chemical
utilization rate of 15%. Commenter
states that Andover adjusted the urea
utilization rate in the IPM model
without explanation. On the contrary,
on page 3 of its memo, Andover
provided actual utility data and
explained why 25% was a more
common utilization rate for utility
boilers. Chemical utilization is a strong
function of furnace temperature, and
because chemical consumption is the
single largest expense associated with
SNCR, using an incorrect chemical
utilization will lead to large
discrepancies in cost.
Commenter states that the furnace exit
gas temperature is 2710 °F. While EPA
suspects that this may be in error (high),
it is the data provided by the company.
If this temperature is correct, SNCR may
only be marginally effective. Sargent &
Lundy estimated a chemical utilization
of 12%, which is possibly optimistic.
Information from Fuel Tech, the leading
supplier of SNCR technology, stated that
at the unusually high furnace exit
temperature of 2500 °F, well below
2710 °F assumed by Sargent & Lundy, a
25% reduction was possible at a
particular facility from a similar NOX
baseline with a Normalized
Stoichiometric Ratio of 1.75 (utilization
of 14.3%). Hence, EPA will accept the
12% utilization and 20% NOX reduction
assumed by Sargent & Lundy for
Laramie River Station.164
The model in the IPM, which was
developed by Sargent & Lundy, assumes
a utilization rate of 15%, which
Andover’s data, as well as Fuel Tech’s
input, demonstrates is too low for most
facilities. It is therefore a very
conservative estimate of chemical
utilization. In fact, Andover reviewed
Sargent & Lundy’s model when it was
developed for EPA and Sargent & Lundy
did not provide any supporting data
regarding the assumed utilization rate at
that time. However, in light of the high
assumed furnace temperature at Laramie
River Station, EPA is assuming a 12%
chemical utilization at a 20% NOX
removal rate for those units.165
On the other hand, in the October 28,
2013 memo by Andover for EPA, test
data for utility boilers was provided
showing that 25% is a more reasonable
utilization rate for most units. Moreover,
164 Email from Alexander Dainoff to Jim Staudt,
June 27, 2012.
165 Exhibit 16 to Basin Electric comment, page 25.
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Andover’s principal has conducted
numerous electric utility SNCR
optimization programs, among them are
programs described in referenced
papers, which makes him qualified to
make this determination.166 167 168 So, in
applications where more typical furnace
temperatures are expected, a chemical
utilization rate closer to 25% can be
reasonably assumed.
It is also likely that, in light of the
higher furnace exit temperature at
Laramie River Station, it will be
necessary to utilize a more complex and
costly injection system that requires
injection of urea into convective regions
of the furnace using multiple-nozzle
lances in addition to the more typical
wall injectors. For this reason, EPA is
accepting the capital cost developed by
Sargent & Lundy for Basin Electric of
$16.9 million per unit.
Regarding the reagent used for SCR, as
the commenter points out, EPA’s initial
estimates assumed that urea would be
used as the feed reagent for SCR, which
results in a higher reagent cost than for
anhydrous ammonia. Because
commenters have indicated that
anhydrous ammonia will be used as a
reagent rather than urea, EPA’s revised
estimates assume ammonia as a reagent.
This will result in lower reagent costs.
EPA is also using anhydrous ammonia
costs provided by Potash Corporation
instead of the value provided by the
utility.169 The cost used by EPA
represents the actual delivered cost of
anhydrous ammonia, as quoted by a
major reagent supplier.
Basin Electric provided a site-specific
estimate. EPA generally supports the
use of vendor quotes and site-specific
estimates but only as used within the
parameters of the overnight cost
methodology and the CCM. The BART
Guidelines, are clear that ‘‘[y]ou should
include documentation for any
additional information you used for the
cost calculations, including any
information supplied by vendors that
166 Staudt, J., Casill, R., Tsai, T., Ariagno, L.,
‘‘Commercial Application of Urea SNCR for NOX
RACT Compliance on a 112 MWe Pulverized Coal
Boiler’’, 1995 EPRI/EPA Joint Symposium on
Stationary Combustion NOX Control, Kansas City,
May 16–19, 1995.
167 Staudt, J, Hoover, B., Trautner, P., McCool, S.,
Frey, J., ‘‘Optimization of Constellation Energy’s
SNCR System at Crane Units 1 and 2 Using
Continuous Ammonia Measurement’’, The MEGA
Symposium, Baltimore, MD, August 31–September
2, 2010.
168 Staudt, J.E., Kehrer, K., Poczynec, J., Cote, R.,
Pierce, R., Afonso, R., and Sload, A., ‘‘Optimizing
Selective Non-Catalytic Reduction Systems for CostEffective Operation on Coal-Fired Electric Utility
Boilers’’, presented at ICAC Forum ’98, Durham,
March 1998.
169 Email from Potash Corporation to Andover
Technology Partners, September 27, 2013.
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affects your assumptions regarding
purchased equipment costs, equipment
life, replacement of major components,
and any other element of the calculation
that differs from the CCM.’’ 170 When
supporting documentation to site
estimates are not provided, assumptions
based upon these cannot be considered.
Much of the documentation owners
cite to support additional costs were not
provided to us. For instance, although
Basin Electric provided a table that
listed their cost line items, this
spreadsheet (in pdf format), over 600
lines in length (and including line items
such as 4″ gravel surfacing and chain
link fence), was stripped of all cell
calculations, preventing any meaningful
review.
There was also inadequate
explanation for how man-hour rates
were developed. For example, current
union boilermaker rates for Lodge 101
(Denver) range from $57.62 per hour for
a Journeyman to $60.12 per hour for a
Foreman, with apprentices at lower
rates.171 The CLRC reports similar union
boilermaker rates in the MountainNorthern Plains area at $56.59/hr for
July 2013.172 For non-union
boilermakers, the cost is expected to be
less. Yet, for tasks that appear to be for
boilermakers (ductwork) rates of $90.79
per man-hour are used.173 This is a large
unexplained difference in cost. It may
be that part of it is per diem ($55/day
for over 70 miles and $70/day for over
120 miles per Lodge 101 information),
but per diem does not explain the full
difference. Per diem, however, is also
provided as a separate cost later in the
estimate, making the high labor rate
more difficult to explain. Some portion
may be for overtime, but there is no
explanation provided (overtime is also
added as a separate line item later in the
estimate). Without an explanation it is
not possible to evaluate these costs,
which clearly deviate from publicly
available costs for labor. In addition to
not providing the necessary required
supporting documentation, Basin
Electric did not follow the overnight
cost methodology. Thus, Basin Electric
has failed to meet the test that is
required to support deviations from the
CCM.
170 70
FR 39166, footnote 15.
& Benefit Information, Western States
Field Constructions Bargaining Agreement,
Effective January 1, 2013 through September 31,
2013.
172 Construction Labor Research Council Union
Wages and Supplements for the Period 07/01/2008–
07/01/2013. Available from the National
Association of Construction Boilermaker Employers
Web site: www.nacbe.org.
173 Appendices to Exhibit 14. Page 6 of SCR
estimate (pdf page 43).
171 Wage
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Comment: The IPM methodology
relied upon in the Andover Report is
inconsistent with the BART Guidelines.
The Guidelines require that to conduct
a cost analysis, a state must ‘‘[i]dentify
parameters’’ for emission control and
then ‘‘[d]evelop cost estimates based
upon those design parameters.’’ 70 FR
39166. The cost analysis includes
development of ‘‘estimates of capital
and annual costs,’’ based on the CCM
‘‘where possible,’’ but ‘‘tak[ing] into
account any site-specific design or other
conditions identified above that affect
the cost of a particular BART technology
option.’’ Id. Andover failed to adhere to
the methodology set forth in the CCM
‘‘where possible.’’ More importantly,
however, Andover neither followed the
three-step process in the BART
Guidelines for estimating costs of
compliance nor appropriately
considered the critical site- and projectspecific variables that affect the cost of
both SCR and SNCR at Laramie River.
EPA’s failure to comply with its own
Guidelines results in an inaccurate cost
estimate that should not form the basis
of a BART determination.
Response: EPA disagrees with the
commenter. The three step process was
followed for all cost estimates for
affected Wyoming units. The three-step
process requires that states (or EPA): (1)
Identify the emissions units being
controlled; (2) Identify design
parameters for emission controls; and
(3) Develop cost estimates based upon
those design parameters. The BART
affected units were already identified by
the State and confirmed by EPA, which
addresses step one.
Andover clearly identified design
parameters that are included in the
spreadsheets associated with the memo
under the tab ‘‘Plant Data Summary’’.
This includes plant data such as fuel,
capacity, capacity factor, heat rate,
baseline and controlled NOX level,
retrofit factor and firing configuration.
These parameters are directly used in
the cost analysis that developed capital
and annual costs. Andover performed
the cost estimates as described in the
spreadsheet. Andover considered site
and project-specific parameters as
described in other responses to
comments.
Commenters may disagree with the
cost methodology used by EPA, and our
response to comments regarding the cost
methodology used is in other responses;
however, there is no question that EPA
followed the three-step process.
Comment: The IPM methodology
relied upon in the Andover Report is
inconsistent with the three-step process
in the BART Guidelines for estimating
costs of compliance. The three-step
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process in the BART Guidelines
requires: (1) Identification of emission
units being controlled; (2) identification
of design parameters for emission
controls; and (3) development of cost
estimates based on those design
parameters. 70 FR 39166. The Andover
Report did not adequately define the
emission units being controlled, failed
to identify appropriate site-specific
design parameters that affect cost and
performance of these controls; and
developed cost estimates that are
neither technically indefensible nor
representative of the costs of SCR and
SNCR systems at Laramie River.
Andover’s reliance on the overly
simplistic IPM model precluded an
appropriate BART analysis. First,
because the IPM cost algorithms are
designed to provide high-level system
cost, Andover used generalized
information regarding design and
baseline operating conditions at the
Laramie River boilers to identify the
emission units to be controlled. Second,
because the IPM model includes only
four inputs, Andover’s cost analysis
could not account for unit-specific
operating parameters that affect both
design of the control system and the
attendant costs of installing the controls.
As a result, the Andover Report failed
to comply with the requirement in the
BART Guidelines that cost estimates
account for site-specific variables. 70 FR
39166. The site-specific design and
operational variables have an important
effect on the costs of NOX control
technologies at Laramie River,
particularly the installation of SCR.
Finally, because Andover used generic
inputs to an overly simplistic model, the
resulting cost estimate is not technically
defensible. As Sargent & Lundy opined
‘‘[b]ased on our evaluation of the
Andover cost estimates, it is our opinion
that cost estimates prepared by Andover
are not reflective of the costs BEPC
would incur to install air pollution
control systems on LRS Units 1, 2, & 3,
and that control technology costs
included in the February 7, 2013
Andover Report should not be used to
determine BART for the Laramie River
generating units.’’
Response: EPA disagrees with the
commenter. The three step process
requires that states (or EPA): (1) Identify
the emissions units being controlled; (2)
Identify design parameters for emission
controls; and (3) Develop cost estimates
based upon those design parameters.
Commenter states that ‘‘The Andover
Report did not adequately define the
emission units being controlled, failed
to identify appropriate site-specific
design parameters that affect cost and
performance of these controls; and
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developed cost estimates that are
neither technically indefensible nor
representative of the costs of SCR and
SNCR systems at LRS.’’ However, the
BART affected units were clearly
identified and defined in the analysis.
The units are identified and described
in the memo and the associated
spreadsheets.
EPA’s contractor clearly identified
design parameters that are included in
the spreadsheet associated with the
memo under the tab ‘‘Plant Data
Summary’’. This includes plant data
such as fuel, capacity, capacity factor,
heat rate, baseline and controlled NOX
level, retrofit factor and firing
configuration. These parameters are
directly used in the cost analysis that
developed capital and annual costs.
This is the very same data as used by
Sargent & Lundy in their analysis,
except that EPA did not correct for
elevation, which EPA is correcting in
this response to comments and
calculations.
Andover then performed the cost
estimates as described in the
spreadsheet using algorithms developed
by Sargent & Lundy that utilize the same
inputs as used by Sargent & Lundy in
their analysis for commenters. Other
than a site visit and an adjustment for
elevation, commenters have not
identified any other inputs that they
used that are different or not the direct
result of the inputs utilized by EPA.
With this response to comments EPA is
correcting cost estimates for elevation
and EPA has provided detailed
comments regarding how site
characteristics were addressed using
available satellite imagery and why this
is a valid approach for providing
estimates that are acceptable for BART
analysis.
We disagree with commenter’s
characterization of the cost development
methodology contained in IPM as
generalized. As noted in the
documentation for IPM’s cost
development methodology for SCR,174
the cost estimate methodology is based
upon two databases of actual SCR
projects. These databases include 2004
and 2006 industry cost estimates
prepared for the Midwestern Ozone
Group, and a proprietary in-house
database maintained by Sargent &
Lundy. The Midwestern Ozone Group
information was cross-referenced with
actual 2009 projects, and escalated
accordingly. Sargent & Lundy then used
the information in these databases to
develop the equations described in the
cost component taking into account the
174 http://www.epa.gov/airmarkets/progsregs/epaipm/docs/v410/Appendix52A.pdf.
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pre-control NOX emission level, degree
of reduction, coal type, facility size, and
numerous other unit-specific factors.
While a costly engineering evaluation
that included site visits in addition to
our use of satellite imagery would
potentially produce a more refined cost
estimate, we disagree that our approach
has produced cost estimates that do not
adequately address site-specific issues.
As noted by EPA in our responses
related to satellite imagery, EPA’s use of
satellite imagery enabled us to evaluate
each of the major site-specific issues
raised by commenters.
Comment: The Andover Report fails
to consider site-specific conditions as
required by the BART Guidelines. The
BART Guidelines and the CCM
emphasize the importance of taking into
account site-specific conditions in
developing a cost estimate, particularly
with respect to construction of SCR. 70
FR 39166 (cost estimates should ‘‘into
account any site-specific design or other
conditions . . .’’). See also CCM section
2.4, page 2–40 (with respect to SCR,
‘‘[a]ctual selection of the most costeffective option should be based on a
detailed engineering study and cost
quotations from system suppliers.’’); id.
section 2.5.4.1, page 2–27 (‘‘Manual
deviates from its standard approach of
providing study level costs [for SCR]
and, instead, provides a detailed
description of the factors’’ influencing
costs). Yet as Andover acknowledges in
its report, its engineers did not visit
Laramie River and had no engineering
plans, process flow diagrams, or other
site-specific information regarding
Laramie River when it developed EPA’s
cost estimate. The only information
Andover collected regarding the site
was the generating capacity of the
station, annual heat input for a baseline
period, NOX emission rates for certain
years, and the type of coal burned. As
a result, Andover’s cost estimation
methodology fails to comply with the
BART Guidelines or follow the
methodology recommended by the
CCM, and the final estimate radically
underestimates the cost for SCR and
SNCR at Laramie River Station.
Moreover, Andover’s use of the IPM
model compounded its failure to review
site-specific considerations relevant to
costing SCR or SNCR at Laramie River
Station. Indeed, the fact that the model
has only four input parameters, and
does not take into account other sitespecific parameters that are required by
the BART Guidelines and recommended
by the CCM, renders any resulting cost
estimate both technically and legally
deficient. As noted by Sargent & Lundy,
which developed the IPM algorithms for
SCR and SNCR, ‘‘[b]ecause of the
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limited number of site-specific inputs,
the IPM cost algorithms provide only
order-of-magnitude control system
costs, and do not provide case-by-case
project-specific cost estimates meeting
the requirements of the BART
Guidelines.’’
By relying on the IPM model,
Andover deliberately skirted the issue of
site-specific conditions, other than the
most generic inputs of unit size, heat
rate, coal type, and a retrofit factor. The
Andover Report describes the retrofit
factor in such a way as to emphasize its
site-specific nature, and yet makes no
attempt to carefully analyze the sitespecific variables inherent in the
application of the retrofit factor: ‘‘The
retrofit factor is a subjective factor used
to account for estimated difficulty of the
retrofit that is unique to the facility.
Because site visits were not possible, the
retrofit factor was estimated from
satellite images that provide some
insight to the configuration of the units
and degree of congestion around the site
and in the vicinity of where the SCR
would be installed. These factors impact
the ability to locate large cranes on the
site—that impact how the SCR is
assembled (are large sections lifted into
place or is the SCR ‘‘stick built’’), how
much duct work is needed, if the SCR
must be built onto a large, elevated steel
structure or can be built near the
ground, and if other equipment must be
relocated to accommodate the space of
the SCR.’’
The Andover Report never provides
any analysis of these site-specific factors
in determining the appropriate retrofit
factor for Laramie River. Andover
merely notes that the difficulties of
retrofitting an SCR unit at Units 1 and
3 is ‘‘average,’’ and applies a retrofit
factor of 1.0 to Units 1 and 3. Andover
does note that retrofit at Unit 2 will be
more difficult and added an adjustment
for retrofit difficulties at Unit 2, but
with no explanation of what unique
site-specific conditions contributed to
the factor. Instead, the report notes ‘‘a
modestly higher SCR retrofit difficulty
factor is assumed for Unit 2 because
access will be poorer than for Units 1 or
3.’’ In sum, Andover makes no
adjustments for Units 1 or 3 and accords
a 20% cost retrofit factor to Unit 2,
though it had previously noted that
‘‘when using the IPM Capital Cost
Model, retrofit difficulties associated
with an SCR may result in capital cost
increases of 30% to 50% over the base
model.’’ Thus, even when it accords a
retrofit factor, as it did for Unit 2,
Andover inexplicably low balls that
retrofit factor and the attendant cost
increase for the SCR system. When
Andover’s retrofit factors are compared
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across units and across facilities, it
appears that Andover arbitrarily
assigned the retrofit factors without
adequately accounting for site
congestion and constructability issues.
Subjective retrofit factors, especially
factors randomly chosen without
knowledge of site conditions, cannot
account for site-specific circumstances
as provided in the BART Guidelines.
A comparison of the broad brush
approach taken by Andover with the
detailed, site specific, scoping-level
study taken in the Sargent & Lundy
evaluation illustrates the inadequacies
with Andover’s methodology. As an
initial matter, Andover made a
fundamental error by failing to account
for the effect of site elevation on the
project costs. Laramie River Station is
situated at 4,750 feet above sea level,
resulting in flue gas volumes
approximately 20% greater than a
similarly sized unit at sea level. These
larger flue gas volumes will require
larger SCR reactors, larger duct work,
and increased structural support. None
of these additional costs are accounted
for in Andover’s estimate because the
IPM model assumes the plant is located
at sea level. Indeed, IPM model
guidance provides that ‘‘elevation of the
site must be considered separately and
factored into the MW size accordingly
due to its effects on the flue gas
volume.’’ Id. (citing the IPM SCR Cost
Development Document (August 2010)).
Andover’s reliance on the IPM model
also resulted in failure to account for a
regional labor productivity factor.
Regional productivity must be taken
into consideration in a site-specific cost
estimate to account for local workforce
characteristics, labor availability, project
location, project complexity, local
climate and working conditions. This is
a key factor for Laramie River Station,
because experienced, knowledgeable
labor is difficult to acquire and requires
premium pay, further adding to the cost
of an SCR system.
The most substantial failing of the
Andover Report, however, is its reliance
on an aerial photograph of the plant
from Google EarthTM to account for sitespecific conditions at Laramie River
Station. There are numerous important
elements that cannot be discerned from
an aerial photograph. Specifically, a
Google EarthTM photograph cannot
identify: (1) The site constraints posed
by the location of the coal conveyor
rooms; (2) the location of the existing
fan buildings and the space constraints
between the existing fan buildings and
the existing electrostatic precipitators;
(3) the necessary information to
determine duct work routing and SCR
tie-ins to the existing economizers and
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air heaters; and (4) information
regarding plant subsystems such as the
fan capacity, equipment reinforcement,
auxiliary power systems, electrical plant
system capacity, and other plant
subsystems that would be affected by
installation and operation of the SCR
systems. Further, the aerial photograph
provides no information about where
the ammonia handling system could be
located and necessary pipe routing and
other support systems for the ammonia
handling system. Nor does it show the
need to penetrate the 20-story boiler
wall and provide related structural
support to install duct work, to provide
structural support columns for the SCR
reactors in very tight spaces, and the
need for special cranes to lift heavy
equipment into place in a congested
space.
While Andover indicated that some of
these site-specific issues are addressed
by the retrofit factor, the fact that
Andover accorded no retrofit factor to
Laramie River Station Units 1 and 3,
and low balled the retrofit factor for
Unit 2, resulted in a failure to include
site-specific costs in its estimate for the
Laramie River, in direct contravention
of the requirements of the BART
Guidelines and suggestions of the CCM.
Site-specific conditions are illustrated
in Section 5.1.1.1 of the Sargent &
Lundy Critique. Finally, Andover failed
to include costs for the balance of plant
systems required for the SCR. Sargent &
Lundy Critique section 5.1.1.3. These
items, which require enlarging existing
plant systems to provide for the
additional power and airflow and other
systems necessary to operate the SCRs,
include the following: (1) Replacement
of induced draft fans by larger fans to
support the SCR units; (2) Upgrading of
the existing electrical system to support
the SCR units; (3) Structural stiffening
of the duct work downstream of the
SCRs; and (4) Expand existing control
system to accommodate six new SCRs
(two for each generating unit).
Wyoming used actual, site-specific
data regarding the BART-eligible
sources in development of its plan. In
contrast, EPA did not use site-specific
data; instead, it relied on nothing more
than aerial photographs available in the
public domain.
Response: EPA disagrees with the
commenter. First, as discussed
elsewhere in responses, we are no
longer relying on the IPM cost
algorithms, including the application of
retrofit factors, to estimate capital costs
for the Laramie River Station units.
Instead, we have evaluated the cost
information provided by Basin Electric
in comments and incorporated it as
appropriate. Therefore, the arguments
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made by the commenter related to our
use of the IPM algorithm are no longer
relevant. Nonetheless, below we discuss
how our use of the IPM algorithm in the
proposed rule was based on reason and
evidence and addressed the site-specific
concerns raised by the commenter.
As noted in responses to other
comments, EPA adequately addressed
site-specific issues in using the IPM SCR
cost model. The SCR cost model for
IPM, being developed from actual SCR
retrofit data, incorporate all of the costs
that would normally be associated with
an SCR retrofit. As such, retrofit issues
that are common to all SCR retrofits are
incorporated into the cost. To the extent
that there are additional costs, as
described in other comments, these can
be addressed with the retrofit difficulty
factor.
Basin Electric did not follow the
BART guidelines in developing their
cost analyses, and importantly, did not
provide adequate documentation when
they deviated from it. There are only
very limited situations under which an
analyst can depart from the CCM
methodology under the BART
Guidelines: ‘‘The basis for equipment
cost estimates also should be
documented, either with data supplied
by an equipment vendor (i.e., budget
estimates or bids) or by a referenced
source (such as the OAQPS CCM, Fifth
Edition, February 1996, EPA 453/B–96–
001). In order to maintain and improve
consistency, cost estimates should be
based on the OAQPS CCM, where
possible. The CCM addresses most
control technologies in sufficient detail
for a BART analysis. The cost analysis
should also take into account any sitespecific design or other conditions
identified above that affect the cost.’’ 70
FR 39166.
This section of the BART Guidelines
makes it clear that the CCM is the
intended methodology for conducting a
BART cost determination. It also states
why: To maintain and improve
consistency. However, the CCM does
state that site-specific conditions should
be incorporated. Site-specific conditions
could include space constraints, or a
design feature that could complicate
installing a control. Importantly, a
footnote at the bottom of the same page
of the BART Guidelines makes it clear
that the analyses should document any
deviations from the CCM: ‘‘You should
include documentation for any
additional information you used for the
cost calculations, including any
information supplied by vendors that
affects your assumptions regarding
purchased equipment costs, equipment
life, replacement of major components,
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5147
and any other element of the calculation
that differs from the CCM.’’
The record does not point to any
‘‘unusual circumstance’’ that explains
why Basin Electric’s SCR costs are
higher than costs of SCRs at other
similar facilities, other than the use of
a different cost methodology. In fact,
there is nothing in the record to support
claims that the cost of SCR was in fact
based on detailed site-specific vendor
bids, or is in any manner more sitespecific than the costs relied upon by
EPA in our proposed rule. As an
example, the BART application
submitted by Basin Electric, and relied
upon by Wyoming, shows that only the
cost of catalyst is based on a vendor
quote.175 There is no documentation to
substantiate that the remaining costs are
based on vendor quotes or any other
site-specific data. The mere fact that the
cost analysis was submitted by Basin
Electric is not a basis to conclude that
it is somehow highly site-specific.
Indeed, even the updated cost
information recently submitted by Basin
Electric during the comment period is
conceptual in nature and not based on
vendor quotes. As stated on page 21 of
Exhibit 14 to their comments: ‘‘The LRS
cost estimates are conceptual in nature;
thus, S&L did not procure equipment
quotes specifically for the LRS control
systems. Rather, equipment costs for the
LRS projects are based on conceptual
designs developed for the control
systems, preliminary equipment sizing
developed for the major pieces of
equipment, and recent pricing for
similar equipment.’’
Commenter correctly notes that EPA
did not account for elevation. EPA
acknowledges that it did not account for
elevation in the estimate when using the
IPM algorithm and EPA’s revised
estimate does account for elevation.
Commenter states that the regional labor
productivity was not factored into EPA’s
estimate. EPA’s estimate did provide an
allowance for overtime which is a line
item in the estimate labeled ‘‘Labor
Adjustment.’’ However, commenter did
not provide sufficient information to
evaluate commenter’s estimate and how
productivity factors were developed or
applied in their estimate to produce
their estimate. Labor costs comprise
roughly half of the total cost of Basin
Electric’s estimate of what SCR would
cost to install at Laramie River Station,
and the significance of this cost makes
the lack of information very important.
175 Wyoming Regional Haze SIP, Attachment A,
‘‘Basin Electric Power Cooperative Laramie River
Station Refined BART Visibility Modeling’’,
prepared for Basin Electric Power Cooperative by
Black & Veatch Corporation, July 24, 2008,
Attachment 1, page 7 of 7.
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Moreover, if this is an important
element of commenter’s critique of
EPA’s method, they should have
provided sufficient data and supporting
justifications for EPA to evaluate
commenter’s estimate. Notably, this is
an important deviation from the CCM
and more detailed supporting data
should have been provided. As noted in
EPA’s responses to other comments, the
commenter has not provided any data to
explain the high labor charge rates or
claimed low productivity, as required
under the BART Guidelines.
Commenter claims that ‘‘a Google
EarthTM photograph cannot identify: (1)
The site constraints posed by the
location of the coal conveyor rooms’’.
On the contrary, the coal conveyors are
prominent features in the images 176 and
it is clear from the coal conveyors where
the coal conveyor rooms are located.
This location for coal conveyor rooms is
not unusual. In general, coal conveyor
rooms are located either to one side of
the boiler or the other, depending upon
the location of the coal pile to the boiler.
Moreover, the resulting need to route
ductwork through the boiler building
wall is commonly performed in SCR
retrofits. As such, this is not an unusual
issue and should not significantly
impact retrofit cost versus a typical
retrofit.
Commenter claims that EPA did not
account for ‘‘(2) the location of the
existing FD fan buildings and the space
constraints between the existing FD fan
buildings and the existing electrostatic
precipitators . . .’’ It is clear from the
images that there is a building located
immediately below where the SCR
reactor would be located, and this is not
an unusual situation. The location of the
ESP is also very clearly shown on the
images. The space between the ESP and
the fan rooms is also visible from the
photo in Figure 6a of the Andover
memo. Nevertheless, having to install
SCR support structure in close
proximity to existing buildings or
equipment, as may be necessary at
Laramie River, is not unusual because
SCRs are commonly erected in that
location and buildings or other
equipment are normally in the area
below. It is also possible that SCR
support structure could be built to
largely avoid the forced draft fan
buildings by extending beyond them
with a common support structure for all
three, or at least more than one, SCR
reactor. The space between the ESP and
the fan buildings is only significant with
176 Review of Estimated Compliance Costs for
Wyoming Electric Generating (EGUs)—Revision of
Previous Memo, memo from Jim Staudt, Andover
Technology Partners, to Doug Grano, EC/R, Inc.,
February 7, 2013, Figures 6a and 6b.
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regard to location of a crane for erection
of Unit 2, and this is why a higher
retrofit difficulty is assumed for Unit 2.
Middle unit crane access issues are not
unusual either and have been addressed
numerous ways, including assembling a
temporary crane above the boiler
building, as was performed at the
Brayton Point plant for their Unit 3.
Commenter claims that EPA did not
adequately account for ‘‘(3) the
necessary information to determine duct
work routing and SCR tie-ins to the
existing economizers and air heaters
. . .’’ EPA disagrees with the
commenter. The general routing can be
estimated from the images, and there
was nothing in the images to suggest
any problems with routing ductwork. It
was apparent that a penetration was
necessary in the boiler building, which
is routinely necessary because boilers
are typically housed in boiler buildings
and the SCRs are not, making
penetration of a boiler building wall
necessary in any SCR retrofits where the
boiler is in a boiler building. This is the
case with most SCR retrofits. In fact,
Figures 2 and 3 of Exhibit 16 to Basin
Electric’s comments demonstrate that
the ductwork tie in to the boiler and
associated modifications are similar to
what is done routinely and ductwork
length is reasonable. For an SCR cost
estimate, the most critical cost issues
that require closer examination than
possible with a satellite photo is if it is
necessary to move major pieces of
equipment, such as an air preheater, in
order to accommodate the ductwork.
Had it been determined that relocating
the air preheater was necessary, this
would entail some significant additional
cost over what would be considered a
‘‘typical’’ retrofit. Basin Electric did not
indicate any such need and therefore
their costs for ductwork are expected to
be within the normal cost for a retrofit.
Commenter claims that EPA did not
properly account for ‘‘(4) information
regarding plant subsystems such as the
FD fan capacity, equipment
reinforcement, auxiliary power systems,
electrical plant system capacity, and
other plant subsystems that would be
affected by installation and operation of
the SCR systems. Sargent & Lundy
Critique section 5.1.1.2.–5.1.1.3.’’ The
IPM algorithm explicitly assumes that it
will be necessary to replace the forced
draft (FD) fan 177 and make
modifications to auxiliary electrical
systems and associated boiler structure
177 Sargent & Lundy, ‘‘IPM Model—Revisions to
Cost and Performance for APC Technologies—SCR
Cost Development Methodology, FINAL’’, August
2010.
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and has a line item cost for this. As such
this was addressed in the cost.
Commenter claims that ‘‘Further, the
aerial photograph provides no
information about where the ammonia
handling system could be located, and
necessary pipe routing and other
support systems for the ammonia
handling system. Nor does it show the
need to penetrate the 20-story boiler
wall and provide related structural
support to install duct work, to provide
structural support columns for the SCR
reactors in very tight spaces, and the
need for special cranes to lift heavy
equipment into place in a congested
space.’’ EPA disagrees. It is apparent
from the image, and the open spaces on
the images that have no structures, that
there are any of a number of places at
the Laramie River site that the ammonia
storage system could be located.
Selecting the ideal location does require
closer examination of the site than
possible with an aerial photograph.
However, the impact on total capital
cost is relatively small. With regard to
modifications to the boiler building, this
has already been discussed along with
the installation of structural support
columns for the SCR and need for
cranes. These modifications are
routinely necessary for SCR retrofits and
would be factored into the historical
SCR projects that the IPM algorithms are
based upon.
Expansion of the controls is another
cost identified by commenters as not
adequately addressed by EPA. EPA
disagrees with commenter. Every SCR
retrofit requires expansion of controls.
So, this is incorporated into the IPM
model. There may be specific issues that
may be associated with tailoring the
controls to the existing site that make
this portion of the cost slightly more or
slightly less expensive than normal. But,
controls are generally a small
contributor to total SCR cost and these
differences would have a minor effect.
Comment: When all of the sitespecific and balance of plant conditions
are included, Sargent & Lundy
estimated that the capital cost of
installing SCR at Laramie River Station
is $746,906,000. This is twice as much
as Andover’s flawed cost estimate of
$330,000,000. The discrepancy in the
cost estimates is not surprising in light
of Andover’s failure to comply with the
BART Guidelines and to follow the
CCM where appropriate. For example,
the site congestion and balance-of-plant
upgrades alone total approximately
$290 million—costs which accurately
reflect site-specific constraints to
installing SCR, but which were not
accounted for in the Andover Report.
While the costs estimated in the Sargent
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& Lundy Evaluation are significantly
greater than those set forth in the
Andover Report, they are a far more
accurate and representative assessment
of the costs of installing SCR and SNCR
at Laramie River Station.
Response: EPA disagrees with the
commenter, having found the following
discrepancies in the commenter’s
estimates for cost of SCR and SNCR at
Laramie River Station:
1. Apparently Double-Counts General
Facilities
The itemized cost estimate in the
Appendices to Exhibit 14 includes items
that are normally incorporated into the
General Facilities cost, while Sargent &
Lundy took an additional provision for
General Facilities (Exhibit 14 at page
31). General Facilities are costs that are
not directly associated with the process
equipment, and include such things as
access roads, access platforms, safety
equipment (such as eye-wash stations),
etc. On the other hand, ductwork,
piping, structural steel to support
process equipment are direct capital
cost and do not fall into the category of
General Facilities. The itemized cost
estimate by Sargent & Lundy in the
Appendices to Exhibit 14, however,
includes the cost of many items that
would normally fall under the category
of General Facilities. This includes the
cost of roads and a parking area
($930,226 at page 2 of SCR estimate),
eye wash stations (page 3), a preengineered building for the construction
warehouse ($780,000 page 8), fire
protection systems (page 16), gratings,
handrails, ladders (page 22). As a result,
Sargent & Lundy double counts for
General Facilities by having these costs
accounted for in the itemized direct
capital cost as well as in its Indirect
Capital costs.
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2. Labor Rates in Sargent & Lundy’s
Itemized Capital Cost in the Appendices
to Exhibit 14 Appear To Already Have
a Significant Contingency Built in and
Additional Costs for Overtime and Per
Diem—Already Incorporating
Contingency in Apparent DoubleCounting of Contingency
According to Basin Electric’s
comments, their labor rates were taken
from the publication RS Means.178
However, examples of how the labor
rates from RS Means were used to
develop what was ultimately used in
their estimate were not provided. RS
Means is a subscription service that can
cost up to $1,100, depending upon the
package.
178 Exhibit
14, page 25.
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However, there are publicly available
labor rates for the major construction
trades from the CLRC that are available
for download at the National
Association of Construction Boilermaker
Employers’ Web site.179 The Laramie
River Station estimate assumes
boilermaker labor tasks with a labor rate
of $90.79/hr while according to the
CLRC boilermaker rates in the Mountain
and Northwest Plains as of July 2013
were $56.79/hour, which is close to the
values for Lodge 101 of the boilermakers
union, ranging from $57.62 for a
Journeyman to $60.12 for a Foreman,
and lower rates for apprentices.
The Laramie River estimate assumes
pipefitter labor tasks with a labor rate of
$81.72/hour, while according to the
CLRC pipefitter rates in the Mountain
and Northwest Plains as of July 2013
were $43.57/hour. Plumber rates are
only slightly higher are $47.47/hour. In
fact, there are several areas where the
Laramie River itemized estimated rates
in the Appendices far exceed MountainNorthern Plains reported rates for union
craft labor for July 2013. The ratio of
assumed rate versus reported is as high
as 187%. It is only for the installation
of an architectural door that the
reported rate for carpenters is even close
to the assumed rate for Laramie River
Station. Carpenters also build concrete
forms.180 For carpenters doing concrete
forms, the paid rate ($65.02—see page 2
of estimate) is more than double the
union rate. For most of these crafts,
these rates cannot be explained by per
diem. For example, if all of the
boilermakers lived 120 miles from the
location and were eligible for $70/day
per diem and also drove 120 miles each
way every day of an eight-hour shift
receiving $0.565/mile, that would only
increase the hourly rate by $25.70,
which does not explain the $34+
difference.
It may be that Sargent & Lundy
applied an escalation to the labor
charges for future expected rates. If so,
this is inconsistent with the CCM,
which does not allow for this. In light
of the fact that labor comprises the
single largest expense and is nearly half
of the total direct cost of the project—
per Basin Electric’s estimate in the
Appendices to Exhibit 14—the high
labor rates assumed by Sargent & Lundy
are critical cost items that require much
more complete explanation than was
provided.
179 Construction Labor Research Council Union
Wages and Supplements, available from the
National Construction Boilermaker Employers Web
site, www.nacbe.com.
180 Bureau of Labor Statistics, 47–2031
Carpenters, www.bls.gov/oes/current/
oes472031.htm.
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3. Additional Labor Costs
In addition to the high labor rates
incorporated into Sargent & Lundy’s
itemized estimate, roughly $47 million
in additional labor costs are included
for five ten-hour days and six ten-hour
days and per diem.181 This schedule
(which results in overtime) is stated to
be necessary to attract necessary
labor.182 No further explanation is
provided for these costs. It is unclear
why it is necessary to offer these in light
of the fact that power plant construction
labor demand is well off of its peak and
is especially low in the Western States.
As a key power plant construction trade,
boilermaker man-hours are a good
indication of general power plant
construction activity. Boilermaker manhours demonstrate that labor demand is
well off of past peaks, and for the first
two quarters of 2013, boilermaker
employment in the Western States is
18.6% below 2012 levels for the same
period. Boilermaker man-hours in 2012
nationally totaled 27 million, well off
the years of 2006 through 2009 that
were all above 30 million, and peaked
in 2008 at over 40 million. 2012 levels
were still below 2010’s rate of 28
million.183
It is also unclear why such high
expenses are needed for overtime and
per diem, particularly in light of the
high assumed wage rates discussed
earlier. Moreover, the need for overtime
needs to be incorporated into a
discussion of schedule, which was not
provided. The time available for
installing the SCRs may allow for
spreading of activities over longer
periods of time than in past retrofit
efforts that may have allowed less time
than the RHR, which allows for five
years. However, there is no discussion
of the need for overtime in the context
of schedule.
4. Quantity and Cost of Materials and
Impact on Labor Hours
Throughout the spreadsheets
provided as Attachments to Exhibit 14
to Basin Electric’s comments, no
information was provided on how the
quantities of materials were estimated,
such as tons of steel for ductwork, etc.
This makes it impossible to evaluate if
Sargent & Lundy estimated the correct
quantities of materials, associated
material costs, or the associated hours
181 Appendices to Exhibit 14 of Basin Electric
comments, page 4 of SCR estimate.
182 Exhibit 14, page 25.
183 http://nacbe.com/manhour-reports/. Also see:
Staudt, J.E., ‘‘Engineering and Economic Factors
Affecting the Installation of Control Technologies—
An update’’, Developed for U.S. EPA Clean Air
Markets Division, December 15, 2011, figure 2–2 on
page 12.
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associated with erecting the materials.
The spreadsheet was provided as a pdf
document, and therefore any underlying
equations could not be examined. As
noted in our comments to other
questions, it is necessary to include
documentation for any additional
information used for the cost
calculations that differs from the CCM.
Since the quantities of materials also
relate to the labor needed to install the
materials, this also impacts the labor
costs estimated by Sargent & Lundy.
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5. AFUDC
Sargent and Lundy includes AFUDC
in its SCR cost. This cost of about $22–
$23 million cost per unit, for a total of
$68 million, is not permissible under
the CCM as discussed in response to
other comments.
6. Process Contingency
Although the CCM shows an
allowable process contingency of 5% for
SCR, in EPA’s opinion, this is not
necessary today for SCR on coal-fired
boilers firing the coals used in
Wyoming. According to the Department
of Energy’s NETL: 184 ‘‘Process
contingency is intended to compensate
for uncertainty in cost estimates caused
by performance uncertainties associated
with the development status of a
technology. Process contingencies are
applied to each plant section based on
its current technology status.’’
According to this document, for
commercially available technologies
process contingency could range from
0–10%. When the CCM was issued in
January 2002, SCR was commercially
available but was only emerging in
application on coal-fired utility boilers
in the U.S. According to a study by
Cichanowicz,185 at the end of 2001,
there was only about 13,000 MW of coal
SCR capacity in the U.S., with nearly all
installed in the prior two years, meaning
that there was very limited long-term
experience with SCR on U.S. coals. SCR
usage on coal-fired boilers has since
increased about ten times to about
130,000 MW of coal capacity (over 40%
of all coal capacity) and is therefore a
very well proven and well understood
technology on a wide range of U.S.
coals. As a result, the process
contingency for SCR on coal-fired utility
boilers should be much lower today
than what it was when the CCM was
184 U.S. Department of Energy, National Energy
Technology Laboratory, ‘‘Cost Estimating
Methodology for NETL Assessments of Power Plant
Performance’’, DOE/NETL–2011/1455, April 2011,
pg 4.
185 From data in Cichanowicz, J., Muzio, L., Hein,
M., ‘‘The First 100 GW of SCR in the U.S.,—What
Have We Learned?’’—2006 Mega Symposium.
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issued in January 2002—5%. EPA
believes that for SCR applications on
utility boilers burning Powder River
Basin coals, which are very well
understood SCR applications, there
should not be a need for process
contingency.
7. Sulfur Trioxide (SO3) Mitigation
Measures Are Not Needed
Sargent & Lundy assumed that a SO3
mitigation system is necessary for the
Laramie River SCR. We disagree as this
adds unnecessary capital and operating
cost. An SO3 mitigation system is
unnecessary because of the relatively
low sulfur content of the coal and the
fact that the coal fly ash is high in free
calcium oxide. The available free lime
will neutralize the SO3 making SO3
mitigation unnecessary. In fact, in the
model they developed for the IPM,
Sargent & Lundy assumed that SO3
mitigation was unnecessary for boilers
using coals with SO2 levels below 3 lb/
MMBtu, making it unnecessary for
Laramie River, which fires a much
lower sulfur coal from the Dry Fork
Mine, with an uncontrolled SO2 rate of
roughly 0.50 to 1.0 lb/MMBtu.186 187 188
In fact, Sargent & Lundy uses the same
rationale for arguing (correctly) that air
preheater modifications are not
necessary to address potential
ammonium bisulfate formation from an
SNCR system.189 Moreover, even if SO3
formation were a legitimate concern,
low oxidation SCR catalysts are
available and any additional cost impact
would be very small. SO3 mitigation is
not a large capital cost compared to the
other costs that contribute to the SCR,
but it is illustrative of the manner in
which Sargent & Lundy has taken efforts
to overdesign the system while adding
unnecessary costs.
8. Labor Productivity Factor Apparently
Not Site-Specific
Basin Electric has commented that
local labor productivity is a major factor
that impacts cost. However, it appears
that the labor productivity factor being
selected at the site may have been
broadly applied by Sargent & Lundy at
multiple sites in an inconsistent
manner. According to Basin Electric,
‘‘Labor productivity accounts for things
186 Sargent & Lundy, ‘‘IPM Model—Revisions to
Cost and Performance for APC Technologies—SCR
Cost Development Methodology, FINAL’’, August
2010, page 5.
187 http://www.westernfuels.org/member-services/
mining-operations
188 BNSF Mine Guide, at www.bnsf.com/
customers/pdf/mineguide.pdf. SO2 calculated by
multiplying sulfur content (expressed as a decimal)
times 2 million and dividing by the heating value
in Btu/lb.
189 Exhibit 14, page 17.
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such as labor availability, site access
and working conditions, climate, season
changes, and project size and
complexity’’ and it is a common
practice on large construction projects
to apply a productivity factor to account
for local worker productivity and
construction site conditions. A labor
productivity factor of 1.15 was selected
to account for labor productivity in the
southeastern Wyoming region as
compared to the benchmark of 1.00 for
Texas, cited in Basin Electric’s
comments. Although the comments
refer to the Compass International
Global Construction Cost and Reference
Yearbook, the value in that document
for the southeastern Wyoming region is
not expressly stated, and it is unclear if
1.15 is, in fact, the value in that
document as we were not able to
confirm the number in the document
referenced.190
In another Sargent & Lundy BART
analysis, performed for Oklahoma Gas &
Electric Sooner Units 1 & 2 and
Muskogee Units 4 & 5, Sargent & Lundy
also used a Labor Productivity factor of
1.15.191 Since the Oklahoma Gas &
Electric units are in a climate far more
similar to Texas (only about 150 miles
from Texas) than Wyoming, and the
Oklahoma plant likely draws from
similar construction labor pools as
Texas, it seems that they should have a
similar productivity factor as Texas. It is
also unusual that Sargent & Lundy
would select the exact same
productivity factor for the Oklahoma
BART analysis as Laramie River
Station’s BART analysis, although these
facilities are roughly six hundred to
seven hundred miles away, with very
different climates and draw on different
labor pools. In this case, it appears that
Sargent & Lundy has used the same
productivity factor for Laramie River
Station as for other BART analyses. In
summary, there is no evidence that the
labor productivity factors suggested by
the commenter are site-specific.
9. Contractor’s Fees and Profit Are
Excessive
Commenter’s estimate for contractor’s
fees Expense and Profit total nearly $51
million, or 14% of the estimated total
Labor, Material, Subcontract, and
Process Equipment.192 By contrast,
Sargent & Lundy estimated for the IPM
algorithm total contractor fees and
profits of 10% of the estimated Labor,
190 Exhibit
14, page 25.
Gas & Electric, ‘‘Sooner Units 1 &
2, Muskogee Units 4 & 5 Dry FGD BART Analysis
Follow-Up Report’’, December 28, 2009, see pdf
pages 28 and 43.
192 Attachments to Exhibit 14 to Basin Electric
Comments, page 4 of SCR estimate.
191 Oklahoma
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Material, Subcontract, and Process
Equipment cost. When this higher
percentage is combined with a high
direct cost, the contractor’s fees become
excessive. The high contractor fees and
profits assumed in the Laramie River
Station estimate also seem inconsistent
with a weak power plant construction
market, as demonstrated by the
boilermaker man-hour data discussed
earlier.
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10. Labor, Material, Subcontract, and
Process Equipment Costs in Excess of
Historical Norms, With Substantial
Additional and Unnecessary Costs
Added
It is not unusual for owners to report
excessive costs because owners are most
interested in a cost estimate that has a
very low risk of an overrun rather than
a ±30% cost estimate, which has a
higher risk of overrun (about 50%), but
is likely to be a better estimate of actual
project cost. Commenter’s estimate for
total Labor, Material, Subcontract, and
Process Equipment is $361 million.
Adding Sargent & Lundy’s estimated
cost of scaffolding, freight, and
consumables that is in the Appendices
to Basin Electric’s Exhibit 14 to their
estimated Labor and Material,
Subcontract, and Process Equipment
raises the cost to $383 million (Sargent
& Lundy provides no supporting
documentation for this $22 million in
additional cost). This is 27% above the
expected cost of $301 million (with
elevation accounted for) developed from
the IPM SCR model, which is developed
from actual project data. This suggests
that Sargent & Lundy made a fairly
conservative estimate of these costs for
Basin Electric. But, in addition to the
cost of Labor, Material, Subcontract, and
Process Equipment, scaffolding,
consumables and freight, in their
estimate for Basin Electric, Sargent &
Lundy added very high costs for
overtime, per diem (that were not
explained as required) and high costs
for contractor’s fees and profits, and
then added additional project and
process contingencies, unnecessary
costs such as SO3 mitigation and unallowed costs such as AFUDC that
increased total project cost to nearly
$750 million—about double what they
had estimated in 2008.193 The combined
effect of the conservative cost estimates
with additional contingencies or
unnecessary cost adders, results in what
appears to be an unrealistically high
cost.
193 Attachments to Exhibit 14 to Basin Electric
Comments, page 4 of SCR estimate and Exhibit 14
page 31.
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11. Project Contingency of 15% Is Too
High in Light of the Method Used and
Very Conservative Underlying
Assumptions
Because the cost estimates developed
for Basin Electric are already very
conservative, and based upon detailed
estimates of the labor and materials to
build the SCR, a 15% project
contingency is excessive. According to
the CCM, Section 1.1 Chapter 1, page 1–
4: ‘‘The accuracy of the information in
the Manual works at two distinct levels.
From a regulatory standpoint, the
Manual estimating procedure rests on
the notion of the ‘‘study’’ (or rough
order of magnitude—ROM) estimate,
nominally accurate to within ± 30%.
This type of estimate is well suited to
estimating control system costs
intended for use in regulatory
development because they do not
require detailed site-specific
information necessary for industry level
analyses.’’
The methods and cost elements of the
CCM were adapted from the American
Association of Cost Engineers (AACE)
(CCM Section 1, Chapter 2, p 2–5).
AACE 16R–90 194 states that, ‘‘Project
Contingency is included to cover the
costs that would result if a detailed-type
costing was followed as in a definitivetype study.’’ According to NETL,195
‘‘AACE 16R–90 states that project
contingency for a ‘‘budget-type’’
estimate (AACE Class 4 or 5) should be
15% to 30% of the sum of BEC, EPC fees
and process contingency.’’ AACE 18R–
97 196 defines different classes of
estimates, from 5 (least detailed) to 1
(most detailed). The methodology used
in the CCM falls into a Class 4 or Class
5, while the methodology used by Basin
Electric in their comments, with
hundreds of line items and thousands of
input parameters, is clearly a far more
detailed estimate that does not leave out
any aspect of the project.
The 15% project contingency factor in
the CCM for SCR shown in Table 2.5 on
page 2–44 of Section 4.2 Chapter 2 is
based upon use of the cost estimating
method described in the CCM to
develop the Total Direct Capital Costs.
It is not intended to apply to a detailed
estimate that: (1) Includes many cost
items not explicitly included in the
estimating method described in the
CCM to develop the Total Direct Capital
194 AACE Recommended Practice, AACE 16R–90;
www.aacei.org/non/rps/18R-90.pdf.
195 U.S. Department of Energy, National Energy
Technology Laboratory, ‘‘Cost Estimating
Methodology for NETL Assessments of Power Plant
Performance’’, DOE/NETL–2011/1455, April 2011,
pg 5.
196 AACE Recommended Practice, AACE 16R–87;
www.aacei.org/non/rps/18R-97.pdf.
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Costs and meant to be included in the
15% project contingency, and (2)
Already has substantial contingency
built into it through conservative
assumptions.
In fact, the CCM discusses the
importance of not double-counting
contingency in multiple places such as
retrofit factor and contingency at page
2–30 of Chapter 2—Cost Estimation:
Concepts and Methodology: ‘‘Due to the
uncertain nature of many estimates,
analysts may want to add an additional
contingency (i.e., uncertainty) factor to
their estimate. However, the retrofit
factor is a kind of contingency factor
and the cost analyst must be careful to
not impose a double penalty on the
system for the same unforeseen
conditions. Retrofit factors should be
reserved for those items directly related
to the demolition, fabrication, and
installation of the control system. A
contingency factor should be reserved
(and applied to) only those items that
could incur a reasonable but
unanticipated increase but are not
directly related to the demolition,
fabrication, and installation of the
system. For example, a hundred year
flood may postpone delivery of
materials, but their arrival at the job site
is not a problem unique to a retrofit
situation.’’ (emphasis added). The CCM,
therefore, explicitly anticipates that
some analysts may, incorrectly, apply
multiple contingencies for the same
areas of uncertainty even when using
the methods described in the CCM for
estimating Total Direct Capital Costs.
Because the cost estimates developed
for Basin Electric are already very
conservative and based upon detailed
estimates of the labor and materials to
build the SCR, rather than study-level
estimates, they have double-counted
both the costs that are intended by the
CCM to be included in the project
contingency when using the CCM
method, plus they have added
additional contingency in the form of
conservative assumptions to address
uncertainties in their estimate. For this
reason a 15% project contingency is
excessive for their estimate.
12. The Cost Information in Exhibit 14
Does Not Appear To Be Consistent With
the Cost Information in the Appendices
to Exhibit 14
The table on page 4 of the SCR cost
estimate for Units 1–3 shows a total cost
of $481 million. This is inconsistent
with the Total Direct Capital Costs
shown on page 31 of Exhibit 14, which
total $465 million. It is unclear what the
cause of the $16 million difference is. In
either case, EPA believes that the cost is
not adequately explained.
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13. Laramie River Station Does Not
Require an SNCR System With Four
Injection Zones
The Laramie River Station is a base
loaded unit, with capacity factors well
above 80%. This means that the boiler
rarely operates at part load. Sargent &
Lundy designed the SNCR system with
four injection zones to accommodate the
‘‘entire load and temperature range
within the boiler’’.197 Because the unit
will rarely operate at part load and the
emission rate is a 30-day average, there
is likely no need for four injection
levels. Four injection levels are only
required on load-following units that
spend a significant amount of time at
low or middle loads or units that must
comply with emission limits of much
shorter averaging times, such as 24 hour
averages or less. In practice, this system
would be designed with two, or, at
most, three injection zones. The
additional injection zone adds cost in
the form of additional injectors and
furnace penetrations, and associated
labor. On the other hand, EPA has
accepted Basin Electric’s estimate of the
cost of the SNCR system. Although we
believe that there would likely be fewer
injection levels, based upon the furnace
exit temperature reported by the
company, we expect that at least one of
the injection levels will require a
convective zone injection system using
multi-nozzle lances, which will increase
the cost. Therefore, these effects offset
one another and we are accepting the
cost provided by Basin Electric.
14. Similar Labor Rate Issues for SNCR
as for SCR Estimate
Examination of the labor rates for the
Sargent & Lundy cost estimate revealed
that Sargent & Lundy assumed the same
high labor rates for crafts as they did for
SCR without the rates explained
sufficiently. They also assumed an
additional $2.7 million in additional
overtime and per diem rates that are not
explained.198
For these reasons, the Sargent &
Lundy capital cost estimates for SCR
and SNCR are deficient, for the reasons
as described above. However, because
EPA expects that the SNCR injection
system necessary for Laramie River
Station may require more costly
multiple-nozzle lances in at least one
injection zone, this should offset the
cost impact of the deficiencies we have
identified, and we are accepting the
capital cost of the SNCR system
provided by Basin Electric equal to
$16.9 million per unit.
197 Exhibit
14, page 17.
to Exhibit 14 of Basin Electric
comments, page 4 of SNCR estimate.
198 Appendices
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For the SCR capital cost at Laramie
River, EPA is accepting some costs and
not others, as described in more detail
in supporting information with these
comments.199
Comment: We are very concerned to
see that EPA has introduced a retrofit
factor greater than ‘‘1’’ (the default) for
13 of the 15 EGUs evaluated. The IPM
model used by EPA to estimate control
costs in Wyoming already includes
retrofit costs in its costing algorithms. It
is generally accepted that retrofit
projects will incur costs over and above
those for a ‘‘greenfield’’ site, and most
of those retrofit costs are already
included in the database used to
generate the IPM algorithms. So, unless
a particular situation is so extreme as to
warrant an additional retrofit factor,
applying a retrofit factor to an algorithm
that already includes retrofit costs is
double counting those costs. Not only is
the application of a retrofit factor not
mentioned in the Federal Register
Notice, its only supporting
documentation appears in docket item
EPA–R08–OAR–2012–0026–0086[1],
‘‘Review of Estimated Compliance Costs
for Wyoming Electricity Generating
Units (EGUs)—revision of previous
memo’’: ‘‘Selective Catalytic NOX
Reduction (SCR) capital cost is
estimated using the IPM algorithms with
retrofit factors adjusted on a unit by unit
basis.’’ The retrofit factor is a subjective
factor used to account for the estimated
difficulty of the retrofit that is unique to
the facility. Because site visits were not
possible, the retrofit factor was
estimated from satellite images that
provide some insight to the
configuration of the units and degree of
congestion around the site and in the
vicinity of where the SCR would be
installed. These factors impact the
ability to locate large cranes on the
site—that impact how the SCR is
assembled (are large sections lifted into
place or is the SCR ‘‘stick built’’), how
much ductwork is needed, if the SCR
must be built onto a large, elevated steel
structure or can be built near the
ground, and if other equipment must be
relocated to accommodate the space of
the SCR. When using the IPM capital
cost model, retrofit difficulties
associated with an SCR may result in
capital cost increases of 30 to 50% over
the base model.200
199 Andover Technology Partners, ‘‘Cost of NO
X
Controls on Wyoming EGUs’’, October 28, 2013;
Wyoming EGU BART and Reasonable Progress
Costs—10/28/2013.
200 Sargent & Lundy, ‘‘IPM Model—Revisions to
Cost and Performance for APC Technologies SCR
Cost Development Methodology FINAL’’, August
2010, Project 12301–007, Perrin Quarles Associates,
Inc. p 1.
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A proper estimation of retrofit factors
involves more than an inspection of
satellite images. For example, EPA
Region 8 visited the four-unit Colstrip
power plant in Montana before
concluding that a retrofit factor of ‘‘1’’
was appropriate. Once such a site visit
is conducted, retrofit factors should be
developed for each element of the cost
analysis—not the ‘‘blanket’’ approach
used by EPA here.
Another example is provided by
Sargent & Lundy’s ‘‘Constructability
Review’’ for addition of SCR at Navajo
Generating Station. Navajo Generating
Station consists of three EGUs, with the
middle unit constrained by a coal
conveyor passing through. Even so,
Sargent & Lundy estimated that
construction effort would be only 25%
greater for Unit 2 than for the other two
units. EPA needs to clarify why they
chose to add a retrofit factor greater than
1 (average retrofit factor of 1.33 for 13
of 15 units reviewed) to the costs when
retrofit costs are already contained
within data used to generate the IPM
and when neither Wyoming, Basin
Electric, or PacifiCorp included a
comparable retrofit factor. By adding the
retrofit factor, EPA has overestimated
the costs of SCR: in the case of Dave
Johnston Units 1, 2, and 4 and Wyodak
Unit 1, this has led EPA to propose lessefficient controls than SCR.
Chapter 2, ‘‘Cost Estimation: Concepts
and Methodology’’ of the CCM provides
a lengthy discussion of retrofit factors.
The CCM addresses SCR retrofits
specifically ‘‘A correction factor for a
new installation versus a retrofit
installation is included to adjust the
capital costs’’ (Section 4, NOX Controls,
Section 4.2, NOX Post- Combustion,
Chapter 2, SCR). The CCM retrofit factor
is $728/MMBtu/hr and, for medium-size
boilers like Dave Johnston Unit 4 or
Wyodak, this represents a 23%–24%
increase in the direct capital cost.
EPA inconsistently and without
explanation applied ‘‘retrofit factors’’
that improperly increase the reported
capital costs of SCR installation. Such
retrofit factors are intended to account
for the increased costs of unusually
difficult retrofits, i.e., those that present
more challenges than assumed for the
‘‘typical’’ SCR retrofit, for which costs
are described by the IPM SCR cost
module. The EPA unjustifiably
determined that only two of the fifteen
Wyoming EGUs (Laramie River Station
Units 1 and 3) would be of average
difficulty, while applying increases of
between 20 and 50 percent to the
remaining units. The EPA applied such
retrofit factors even for units for which
the source owners did not claim aboveaverage installation challenges. The
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EPA’s exclusive evidence of potential
retrofit challenges—satellite images—
does not support the EPA’s application
of retrofit factors. (The commenter
submitted a TSD that elaborated on
some of these points.)
The descriptions given of the EPA’s
view of the retrofit difficulty at each
plant based on satellite images make it
clear that many guesses were made and/
or that the EPA erred on the side of high
retrofit difficulty to be conservative.
Being conservative in cost estimates
may be acceptable if such conservatism
is applied equally to all units and if the
EPA provides a reasoned basis for its
assumptions, but the EPA did not do so.
The EPA assumed that the two units in
the middle at Jim Bridger ‘‘will be
somewhat more difficult to achieve
access for equipment’’ and applied the
highest retrofit factor of 1.5 to these
units, while for Laramie River Unit 2,
the EPA assumed more retrofit difficulty
due to its location in the middle but
only applied a retrofit factor of 1.2. The
EPA essentially made guesses that the
middle units may have more retrofit
difficulty, and did not consistently
apply the same retrofit factors to the
middle units of these two plants. We
found it telling that PacifiCorp’s capital
cost estimates for installation of SCR
systems at all four Jim Bridger units
(which are of equal size to each other)
were identical for each unit, and the
same is true of Basin Electric’s capital
cost estimates for installation of SCR
systems at all three Laramie River units
(which are also equal in size). Given
these facts, the EPA has no basis for its
application of a higher SCR retrofit
factor for the units in the middle (i.e.,
Jim Bridger Units 2 and 3 and Laramie
River Unit 2).
To summarize, the EPA has not
adequately justified the application of
any retrofit factor to the costs of SCR at
any of the EGUs in Wyoming, and the
EPA should not apply retrofit factors to
increase the capital costs of SCR
without adequate justification for those
retrofit factors. Further, the EPA must
remember that the IPM cost module for
SCR is based on actual cost data for SCR
retrofits, and that virtually all SCR
retrofits would have some space
constraints due to most power plants
being built without ever planning for
SCR installation. The EPA should only
apply a retrofit factor if it can justify
that the cost of SCR installation would
noticeably deviate from a typical
installation.
Response: As noted by commenter,
the IPM cost model is based upon actual
retrofits and incorporates all of the costs
normally associated with retrofit of an
SCR. This means that many of the
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retrofit issues commenters have raised
are incorporated into the base cost,
which can then be adjusted with a
retrofit difficulty factor based upon the
perceived difficulty of the retrofit
relative to typical retrofits. EPA
disagrees with the commenter in its
assertion that the EPA inconsistently
and without explanation applied
‘‘retrofit factors’’ that improperly
increase the reported capital costs of
SCR installation.
EPA applied retrofit factors while
carefully considering site conditions.
Where there was uncertainty, EPA did
lean toward making more conservative
estimates, which would explain the
average retrofit factor exceeding 1.0.
Section 2.5.3.2 of the CCM discusses
retrofit cost considerations as ‘‘Probably
the most subjective part of a cost
estimate.’’ The CCM states that, ‘‘Since
each retrofit installation is unique, no
general factors can be developed. A
general rule of thumb as a starting point
for developing an appropriate retrofit
factor is: The larger the system, the more
complex (more auxiliary equipment
needed), and the lower the cost level
(e.g. study level, rather than detailed),
the greater the magnitude of the retrofit
factor.’’ Thus, retrofit difficulty factor
may factor in some uncertainty and be
higher to account for that.
In the cost estimates EPA developed,
retrofit factors were determined from
satellite images using the following
considerations: (1) Available access to
and from the site for transportation of
equipment and available space for
laying down construction materials; (2)
Location of equipment relative to each
other and whether there is a substantial
amount of demolition necessary in order
to make room for SCR equipment; and
(3) Access for a crane. At a highly
congested site, crane access can be
difficult and may entail a more costly
approach. Access for a crane is a
particular concern for internal units
when units are located side-by-side.
There are no strict guidelines used for
determining the actual value of retrofit
factors. They are a matter of judgment.
Per the CCM at 2.5.4.2 (page 2–28,
Chapter 2 Cost Estimation: Concepts
and Methodology), ‘‘[t]he proper
application of a retrofit factor is as much
an art as it is a science, in that it
requires a good deal of insight,
experience, and intuition on the part of
the analyst.’’ What follows is the
explanation for each of the retrofit
factors used at each of the sites. As will
be shown, the retrofit factors were the
result of a thoughtful process, and were
not arbitrary.
With regard to the Dave Johnson site,
this is one of the more congested sites
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in Wyoming. Per the Andover report on
estimated costs of NOX controls: ‘‘Based
upon the close proximity of the boilers
and associated equipment to one
another, decommissioned chimneys that
will limit access and ability to move a
crane, the coal pile and coal conveyors
that also limits access to the area of the
units where construction would occur,
the office building that is adjacent to
Unit 1 and limits access, and the Unit
4 scrubber, retrofit of an SCR on Units
1–4 would likely entail a significantly
higher than average retrofit cost. Unit 4
probably has the best access of all of the
units because there may be some space
between the boiler and the scrubber, but
it is difficult to say for sure from the
image and therefore a conservatively
high retrofit difficulty was used for unit
4 that is consistent with the other
units.’’ 201 As noted, the site is fairly
congested for all units, justifying a high
retrofit factor of 1.5 for all units, not just
the middle units.
Jim Bridger is also limited on space,
but not so much so as Dave Johnston:
‘‘Based upon the satellite photo, the
SCR reactors would likely be installed
above the ESPs and ductwork routed to
the boiler. The boilers do not appear to
be unusually constrained from the
perspective of installing SCR ductwork;
however, access for construction
equipment will be much more difficult
to achieve for the two middle units. The
scrubbers and associated piping will
limit access somewhat. Unit 4 access
will be limited somewhat by the coal
conveyor and because it’s scrubber takes
up more room than the other scrubbers.
For this reason a retrofit difficulty factor
of 1.5 is assumed for the middle units
and 1.25 for units 1 and 4.’’ 202
On the other hand, as is apparent
from the satellite image, Laramie River
is a more open site than Dave Johnson.
Satellite images ‘‘show a less
constrained site than Dave Johnston,
with good access to both units 1 and 3.
The coal conveyor is clearly visible and
will be an obstruction for the unit 2
SCR. As a result, retrofit difficulty of
installing SCR is expected to be average,
except possibly for unit 2 which is
located between units 1 and 3. Access
of a crane will be somewhat more
challenging for Unit 2 and an SCR
retrofit difficulty of 1.2 is assumed for
estimating SCR capital cost. In all cases
201 Andover Technology Partners, ‘‘Cost of NO
X
Controls on Wyoming EGUs’’, October 28, 2013, p.
30; Wyoming EGU BART and Reasonable Progress
Costs—10/28/2013.
202 Andover Technology Partners, ‘‘Cost of NO
X
Controls on Wyoming EGUs’’, October 28, 2013,
p. 35; Wyoming EGU BART and Reasonable
Progress Costs—10/28/2013.
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the SCR reactor is likely to be installed
above the ESP ductwork.’’ 203
Naughton is much more congested
than Laramie River, although access
appears slightly better than for Dave
Johnson. Per the Andover report:
Babcock & Wilcox provided cost estimates
for the Naughton unit 1 & 2 SCRs. Babcock
& Wilcox’s estimate assumed that it would be
necessary to demolish stacks that will be
abandoned after a planned scrubber
installation and they also determined that
additional fan capacity was not necessary.
Babcock & Wilcox also assumed a complex
support structure would be needed, which
adds cost. Babcock and Wilcox also stated
that units 1 and 2 are slightly offset which
makes it impractical to build a common
support structure for the SCR reactors;
however, . . . Babcock & Wilcox has used a
longer horizontal duct run on the unit 1 SCR
which places the unit 1 and unit 2 SCR
reactors side-by-side so that a common
support structure is likely to be possible,
offering some potential savings from what
they have estimated. Alternatively, a shorter
horizontal duct run on unit 1 may make it
possible to avoid demolition of the unit 1
chimney that will be abandoned. When using
the IPM algorithm a retrofit difficulty factor
of 1.3 is assumed. This was based upon the
fact that it appeared to be a less congested
site than Dave Johnston, but there were
potential challenges, such as the chimneys,
that could result in longer duct runs or
additional demolition.
For unit 3 it is also unclear if there is
enough space to install the SCR reactor on
the same side of the chimney as the boiler,
which, means that demolition of that
chimney may be needed. There appears to be
access for construction equipment, such as a
crane, in the area east of the plant (the upper
part of the photo) and to the north of unit 3.
In estimating the cost of the SCR for unit 3,
retrofit difficulty is above average because
more lengthy duct runs or demolition of the
chimney are likely needed, and an assumed
retrofit difficulty factor of 1.3 is assumed for
unit 3.
In the event SCR were installed at the site,
the SCR reactor would likely be located
above the existing (but decommissioned) ESP
shown between the boiler building and the
chimney . . . There is ample room on the
As a result, the retrofit factors used
were not arbitrary but the result of a
thoughtful process of examining the site
for issues that would affect the difficulty
of the retrofit.
Comment: EPA’s application of the
maximum retrofit factor (1.5) to Dave
Johnston Units 1 and 2 is unsupported
and leads to a significant $1.5 million/
year and $800/ton overestimation of
average costs. Neither PacifiCorp nor
Wyoming proposed a retrofit factor for
these units. It is especially surprising
that EPA has applied the maximum
retrofit factor to all four units at Dave
Johnston, and that even an ‘‘end’’ unit
like Unit 1 is considered to have the
highest degree of retrofit difficulty. It
has been our experience that end units
are typically the easiest to retrofit, while
the more difficult retrofits are associated
with ‘‘middle’’ units. Once the SCR
costs are corrected to address the issue
discussed above, the incremental costs
become $5,700–$5,800/ton (versus
$7,050/ton at Bridger Unit 2).
The EPA applied a retrofit factor of
1.5 to Dave Johnston Units 1–3, citing
close proximity of boilers,
decommissioned chimneys and the coal
pile. It is not clear that these issues
warrant a 50 percent increase in SCR
costs due to retrofit difficulty at Units
1–3.
Response: EPA’s estimate of retrofit
factor is based upon a thoughtful
consideration of the various factors
described in the previous response.
With regard to the Dave Johnston site,
this appears to be one of the more
difficult sites in Wyoming from the
perspective of retrofit.
Comment: EPA’s application of the
maximum retrofit factor (1.5) to SCR on
Dave Johnston Unit 4 is unsupported
and leads to a significant $3.8 million/
year and $900/ton overestimation of
average costs. Neither PacifiCorp nor
Wyoming proposed a retrofit factor for
this unit. We disagree with EPA’s
decision to apply the maximum retrofit
factor to all four units at Dave Johnston,
and that even an ‘‘end’’ unit like Unit
4 is considered to have the highest
203 Andover Technology Partners, ‘‘Cost of NO
X
Controls on Wyoming EGUs’’, October 28, 2013,
p. 39; Wyoming EGU BART and Reasonable
Progress Costs—10/28/2013.
204 Andover Technology Partners, ‘‘Cost of NO
X
Controls on Wyoming EGUs’’, October 28, 2013,
p. 52; Wyoming EGU BART and Reasonable
Progress Costs—10/28/2013.
Hence, Naughton is assumed to be an
above average retrofit difficulty because
of the potential for some significant
interference from some equipment and
the possible need for longer than
average duct runs.
For Wyodak, access to the site appears
good, but there are some possible issues
that might come up if the existing (but
decommissioned) ESP needs to be
demolished, which was the reason for
the above average retrofit factor of 1.3.
Per the Andover report:
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site for lay down of material. Location of a
crane near the construction site appears to be
possible; however, in every direction from
the boiler there is a potential interference
that might complicate crane location relative
to the lay-down area. Therefore, the difficulty
of this retrofit is probably average to perhaps
above average. A conservative estimate of
retrofit difficulty of 1.3 is assumed, although
a closer examination of the site may show
that a lower retrofit difficulty may be
possible.204
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degree of retrofit difficulty. It has been
our experience that end units are
typically the easiest to retrofit, while the
more difficult retrofits are associated
with ‘‘middle’’ units.
The CCM retrofit factor is $728/
MMBtu/hr and, for medium-size boilers
like Dave Johnston Unit 4 or Wyodak.
This represents a 23%–24% increase in
the direct capital cost. For Dave
Johnston Unit 4, the EPA applied a
retrofit factor of 1.5 to the costs of SCR
because ‘‘[t]here may be more space
available near unit 4 for a retrofit of
SCR, but this is unclear from the
photograph.’’ This is a very questionable
basis to justify increasing the costs of
SCR by 50 percent.
Response: Because of the congestion
of the overall site at Dave Johnson plant,
a large reduction of retrofit factor to well
below 1.5 was not justified even though
Unit 4 is an end unit. There appears to
be other equipment in the vicinity of
Unit 4 that would obstruct access and
maintaining a retrofit factor of 1.5 seems
reasonable.
Comment: The EPA assigned a 1.3
retrofit factor to the SCR cost estimate
for the single unit Wyodak plant. It
appears the main reason for applying
this factor is because the SCR would
likely have to be placed on top of the
decommissioned ESP, and that space
constraints were not an issue. Although
the EPA summarized that ‘‘. . . the
difficulty of this retrofit is probably
average to above average since it is
common to have some relocation of
equipment,’’ the EPA applied a 30
percent increase to the SCR costs for
Wyodak.
Response: As noted by the
commenter, EPA determined that a
retrofit factor of 1.3 is conservative at
Wyodak. But, because of the possible
items that are apparent (as described
above) from the satellite photograph and
that could get in the way, it was not
regarded as below average difficulty, but
perhaps something slightly above
average. EPA therefore does not believe
that the retrofit factor should be lower
than 1.0 and it may be as high as 1.3.
EPA is basing its cost analysis on the
more conservative estimate.
Comment: In Montana, EPA used the
IPM algorithms for some sources and
not for others, asserting only that use of
IPM ‘‘was intended to ensure that the
direct capital costs reflect the most
recent cost levels seen in the
marketplace’’ and thus did not overestimate costs. 77 FR 57888. EPA also
used IPM for the Arizona FIP but failed
to address how its use was consistent
with either the BART Guidelines or the
CCM. 77 FR 72512 (Dec. 5, 2012). In
Colorado, EPA said the State’s cost
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estimates for Craig Unit 1 deviated from
the CCM but accepted them anyway
because EPA was pleased with a State
law that required emission reductions
from certain other EGUs. 77 FR 76875.
EPA sometimes supplements the CCM
with a rule that installed SCR retrofit
costs must fall between $79/kW and
$316/kW, unless the state justifies a
deviation from this range. North Dakota
SIP, 77 FR 20929; Montana FIP, 77 FR
57889; New Mexico FIP, 76 FR 52388,
52392. EPA has proposed to apply this
rule to the Wyoming SIP and FIP, 78 FR
34738. This cost range is derived from
‘‘industry studies’’ and does not appear
anywhere in the CCM. Supplementing
the CCM with this new requirement is
inconsistent from the terms of the CCM
and BART Guidelines.
Response: We agree that we have used
the IPM control cost algorithms in
various regional haze rulemakings as
noted by the commenter. And as noted
by the commenter, our intent in using
the IPM cost algorithms was to ensure
that our capital cost estimates for SCR
reflect those currently found in the
marketplace. Elsewhere in these
responses to comments, we have
documented in some detail how our use
of the IPM algorithms is consistent with
the BART Guidelines and CCM. We
disagree that we have supplemented the
CCM with a rule that retrofit costs must
fall between $79/kW and $316/kW—
2010 dollars ($81/kW to $324/kW when
escalated to 2013 dollars), which was
the range of actual installed capital costs
found in recent industry studies as cited
in our final rule for North Dakota. In the
North Dakota rulemaking, we used this
information to assess whether costs
supplied to EPA by states or sources
were consistent with those observed in
the industry for numerous other retrofits
spanning a wide range of retrofit
difficulties. As such, this in no way
represents a requirement imposed by
EPA; rather, it represents a very
practical means by which EPA has
gauged the validity of costs. We
acknowledge that, given exceptionally
difficult retrofit circumstances or other
factors, it is possible for a particular
retrofit to fall outside of this range. In
fact, we note that our revised costs
supporting this final rule are in some
cases in excess of the cited range. Our
revised SCR costs for BART EGUs, when
represented on a dollar per kilowatt
basis, range from $222/kW to $467/kW,
with a median cost of $322/kW (2013
dollars).205 From this, it is clear that we
205 Andover Technology Partners, ‘‘Cost of NO
X
Controls on Wyoming EGUs,’’ October 28, 2013;
Wyoming EGU BART and Reasonable Progress
Costs—10/28/2013; Wyoming EGU BART and
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have not established a requirement that
SCR capital costs fall within the cited
range as suggested by the commenter.
For our Colorado final action, we are
currently in litigation over our approval
of the State’s BART determination for
Craig.
Comment: EPA inappropriately
claimed that ‘‘Wyoming’s SCR capital
costs on a $/kW basis often exceeded
real-world industry costs’’ (78 FR
34748) and then refers to industry
studies conducted between 2002 and
2007 that report installed unit capital
costs actually incurred by owners
broadly ranging ‘‘from $79/kW to $316/
kW (2010 dollars).’’ Id. EPA also noted
‘‘instances’’ in its proposed FIP ‘‘in
which Wyoming’s source-based cost
analyses did not follow the methods set
forth in the EPA CCM.’’ EPA is simply
incorrect in stating that Wyoming’s
analyses were flawed and did not reflect
real-world industry costs for the units
being analyzed. The commenter states
that they are presenting information on
the ‘‘real-world’’ costs for the upcoming
Jim Bridger Units 3 and 4 SCR projects,
which recently were competitively bid
for engineering, procurement, and
construction contracts to be installed in
accordance with the requirements in the
Wyoming SIP. These real-world costs, in
turn, can easily be compared to the costs
assessed by Wyoming and by EPA in
their BART determinations.
Even when including AFUDC, the
Wyoming SIP cost basis aligns closely
with the EPA’s cost basis, with each
agency again understating real world
costs for these projects. By extension,
this real-world cost information for Jim
Bridger Units 3 and 4 validates the
methodology used by Wyoming to
determine cost information for each of
PacifiCorp’s BART Units. This
information clearly disputes EPA’s
claims in its FIP that Wyoming ‘‘did not
properly or reasonably take into
consideration the costs of compliance’’
and that its SCR cost analyses exceeded
real world industry costs and were
flawed. Id.
Response: We disagree that it was
incorrect for EPA to state Wyoming’s
cost analyses for SCR were flawed. As
discussed in our proposed rule, EPA
found several deficiencies with
Wyoming’s cost analyses, including:
Inclusion of AFUDC, inclusion of some
inappropriate owner’s costs, insufficient
documentation to support vendor
estimates or bids, and use of incorrect
baseline emission rates. 78 FR 34749.
These deficiencies represented a
departure from the procedures outlined
Reasonable Progress Costs for Jim Bridger—10/28/
2013.
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in the CCM and BART Guidelines and,
particularly when taken collectively,
had a material impact on the cost
estimates. We have addressed why each
of these items are inconsistent with the
CCM and BART Guidelines in other
response to comments here.
Moreover, since the time of the State’s
analyses, EPA has been made aware of
additional pertinent information by
commenters, much of which has been
incorporated into the revised costs
presented in this final rulemaking.
Examples include: Inclusion of certain
costs submitted by the facility owner’s
where appropriately documented,
shorter useful life for one facility,
correction for elevation, use of ammonia
instead of urea as SCR reagent, revised
SNCR reagent consumption for some
facilities, and use of busbar costs for
auxiliary power in place of market
prices.
Regarding whether Wyoming’s costs
exceeded real world industry costs, see
EPA’s response to comment
immediately above.
Comment: Wyoming did not
overestimate the costs of SCR. The EPA
claimed to have identified a number of
flaws in Wyoming’s cost analyses for
SCR (78 FR 34748), but only identified
one flaw—that ‘‘Wyoming’s SCR capital
costs on a $/kW basis often exceeded
real-world industry costs.’’ The EPA’s
use of the word ‘‘often’’ indicates that
Wyoming’s costs did not always exceed
real-world costs, but the EPA did not
explain which costs exceeded realworld costs and which did not.
The EPA specifically alleged only that
the cost estimates for Dave Johnston
Units 3 and 4, Naughton Units 1, 2, and
3, and Wyodak ‘‘are in excess of the
range of capital costs documented by
various studies for actual installations,’’
and that the EPA based this conclusion
of five industry studies conducted
between 2002 and 2007. The EPA did
not explain why the State was wrong to
rely on vendor submitted, engineered,
site-specific cost estimates instead of
reports of installations at other facilities
as long as a decade ago. The State’s
costs of compliance are based on sitespecific capital costs, operating costs,
and maintenance costs provided by the
companies in their applications for a
state BART permit, and over 50 percent
of the costs of compliance is driven by
the capital cost to engineer and
physically install a SCR system. Such
costs must be evaluated on a case-bycase basis in accordance with Appendix
Y. Variable costs, including reagent
usage (ammonia), account only for 2 to
7 percent of SCR costs.
The BART Guidelines not only allow,
but encourage states to take into account
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site-specific conditions that impact the
cost of installing emission controls.
Until the EPA explains why it was
unreasonable for Wyoming to prefer
site-specific, real-world costs over
speculative extrapolation of costs
incurred at other facilities many years
past, the EPA cannot lawfully displace
the State’s judgment simply because
EPA prefers one approach over the
other.
Response: We disagree that EPA only
identified one material flaw in
Wyoming’s costs estimates for SCR. See
EPA’s response to comment
immediately above where we identify
several flaws. Because Wyoming’s
approach to estimating SCR costs was
not consistent with the BART
Guidelines and CCM, it was appropriate
for EPA to revise these costs in our
proposed rule.
We agree that the BART Guidelines
encourage states to take into account
site-specific conditions that impact the
cost of installing emission controls.
However, we disagree with the
commenter’s characterization of the
State’s costs of compliance for SCR as
site-specific in nature on the mere basis
that they were submitted by the sources.
There is nothing in the record to
support claims that these costs were in
fact based on detailed site-specific
vendor bids, or are in any manner more
site-specific than those costs relied
upon by EPA in our proposed rule. As
an example, the BART application
submitted by PacifiCorp for Dave
Johnston Unit 3, and relied upon by
Wyoming, states that: ‘‘Costs and
schedules for the LNBs and OFA, SNCR,
and SCR were furnished to CH2M HILL
by PacifiCorp, developed using Sargent
and Lundy’s internal proprietary
database, and supplemented (as needed)
by vendor-obtained price quotes. The
relative accuracy of these cost estimates
is stated by S&L to be in the range of
plus or minus 20 percent.’’ 206
From this, it is clear that PacifiCorp,
and thereby also the State, based SCR
costs on ‘‘S&Ls internal database’’ and
not a unique quotation specific to Dave
Johnston Unit 3 supplied by an SCR
vendor. Moreover, while the BART
application refers to ‘‘vendor-obtained
quotes,’’ it does not make clear for
which items these quotes were obtained,
if any, nor are any quotes for SCR
included in the BART application.
Instead, the total installed capital cost of
SCR (with combustion controls) is
shown in PacifiCorp’s economic
206 Wyoming Regional Haze SIP, Attachment A,
‘‘BART Analysis for Dave Johnston Unit 3,’’
prepared for PacifiCorp by CH2MHILL, December
2007, page 3–7.
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analysis as a single line item with a
value of $83,301,164, but without any
detail or supporting documentation.207
In an update to its initial BART
application, PacifiCorp subsequently
increased the capital cost to
$129,700,000, but again without any
detail or supporting documentation.208
We note that the capital cost estimates
for SCR presented by EPA in our
proposed rule were also based on the
Sargent & Lundy databases as these in
turn underlie the IPM cost algorithms.
As such, the commenter is mistaken
when characterizing Wyoming’s capital
costs as superior to those from EPA.
However, the costs presented by EPA
went on to correct the deficiencies that
we have identified elsewhere (e.g.,
improper calculation of baseline
emissions). Therefore, the capital costs
provided from each agency were
ultimately generated in a similar
manner, but only the overall costs
generated by EPA were in keeping with
the BART Guidelines and CCM.
It is notable that, in order to address
our concerns regarding lack of sitespecific costs and associated
documentation, the Wyoming sources
have submitted additional cost
information during the comment period
for the proposed rule. The PacifiCorp
comments include capital costs based
on a vendor budgetary quote from
Babcock and Wilcox, as opposed to
capital costs based on the Sargent &
Lundy databases. Similarly, Basin
Electric has submitted a consultant’s
report that, while conceptual in nature
and without vendor-based equipment
costs, provides a more detailed analysis
of SCR costs for Laramie River than
before. These submittals contain more
recent and more detailed cost
information than relied upon by
Wyoming in their cost analyses. The
submission of these updated costs from
the sources, intended to supply more
site-specific costs to EPA, belies claims
by the commenter that the costs
originally used by the State were
‘‘vendor submitted, engineered, sitespecific cost estimates.’’
Comment: We would like to point out
that while the EPA makes a point of
saying in their proposed rule that they
have followed their own guidelines in
the CCM, that manual has not been
updated since 2002. Representative
Lummis of Wyoming has authored
207 Wyoming Regional Haze SIP, Attachment A,
‘‘BART Analysis for Dave Johnston Unit 3,’’
prepared for PacifiCorp by CH2MHILL, December
2008, Attachment 1.
208 Wyoming Regional Haze SIP, Attachment A,
‘‘Addendum to Dave Johnston Unit 3 BART
Report,’’ prepared for PacifiCorp by CH2MHILL,
March 26, 2008, Attachment 1.
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language to require the EPA to update
its cost manual for the first time in over
a decade. The old data in the old
handbook no longer reflects the true
costs of designing, engineering and
installing controls. Before rejecting state
data on the cost of compliance, the EPA
must engage states and regulating
entities to acquire real-world cost data
and use that data to update its manual.
Response: We consider the use of the
broader costing methodology used by
the CCM, the overnight method, as
crucial to our ability to assess the
reasonableness of the costs of
compliance. Evaluation of the cost of
compliance factor requires an
evaluation of the cost-effectiveness
associated with the various control
options considered for the facility. A
proper evaluation of cost-effectiveness
allows for a reasoned comparison not
only of different control options for a
given facility, but also of the relative
costs of controls for similar facilities. If
the cost-effectiveness of a control
technology for a particular facility is
outside the range for other similar
facilities, the control technology may be
rejected as not cost-effective. In order
for this type of comparison to be
meaningful, the cost estimates for these
facilities must be performed in a
consistent manner. Without an ‘‘applesto-apples’’ comparison of costs, it is
impossible to draw rational conclusions
about the reasonableness of the costs of
compliance for particular control
options. Use of the CCM methodology is
intended to allow a fair comparison of
pollution control costs between similar
applications for regulatory purposes.
Just as importantly, while we have
followed the broad methodology of the
CCM as required by the BART
Guidelines, we have also accounted for
the cost of controls currently observed
in the marketplace. In particular, our
use of the cost calculations taken from
the IPM, released in 2010, is designed
to reflect modern day costs. Moreover,
operation and maintenance costs for
items such as labor, reagent, and
catalyst, reflect current market values.
In short, we have adhered to the broad
overnight cost methodology specified in
the CCM, while updating both capital
and operation and maintenance costs to
reflect current market conditions.
Therefore, the commenter is mistaken in
asserting that our costs are based on
outdated information.
Comment: EPA’s regional haze FIP
also is improper because it assumes
BART NOX controls over $5,000 per ton
are ‘‘cost effective.’’ (See e.g., 77 FR
33053.) Appendix Y, on the other hand,
states that BART NOX control costs per
ton above $1,500 are not ‘‘cost
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effective.’’ In the preamble to the BART
Guidelines, EPA suggests that 75% of
the EGUs would have BART NOX
removal costs between $100 and $1,000
per ton, and almost all of the remaining
EGUs could install sufficient BART NOX
control technology for less than $1,500
per ton. EPA also recognized in the
preamble that SCR was generally not
cost effective for EGUs, except for EGUs
with cyclone boilers (where the cost per
ton was less than $1,500 per ton, with
an average of $900 per ton). Based upon
EPA’s Preamble, BART NOX control
technology that costs more than $1,500
per ton should not be considered ‘‘cost
effective.’’ Here, EPA found BART NOX
controls with a ‘‘cost effectiveness’’
number much more than $1,500 per ton
to be ‘‘cost effective.’’ Therefore, EPA
should withdraw its regional haze FIP.
Response: We disagree with this
comment. For each source subject-toBART, the RHR, at 40 CFR
51.308(e)(1)(ii)(A), requires that states
identify the level of control representing
BART after considering the factors set
out in CAA section 169A(g), as follows:
‘‘States must identify the best system of
continuous emission control technology
for each source subject to BART taking
into account the technology available,
the costs of compliance, the energy and
non-air quality environmental impacts
of compliance, any pollution control
equipment in use at the source, the
remaining useful life of the source, and
the degree of visibility improvement
that may be expected from available
control technology.’’ 70 FR 39158.
Because the preamble generally
discusses costs, this does not obviate the
need for states (or EPA in the case of a
FIP) to identify the best system of
continuous emission control technology
on a case-by-case basis considering the
five factors. While EPA described
various dollar-per-ton costs as ‘‘costeffective’’ in various preambles (e.g., 70
FR 39135–39136), EPA did not establish
an upper cost effectiveness threshold for
BART determinations.
Comment: Far from stating that the
CCM must be the exclusive source of
cost information, the BART Guidelines
state that ‘‘[t]he basis for equipment cost
estimates also should be documented,
either with data supplied by all
equipment vendor (i.e., budget estimates
or bids) or by a referenced source (such
as the EPA CCM]).’’ Although the BART
Guidelines then say that cost estimates
should he based on the CCM, it also
says that the CCM should only he used
‘‘where possible.’’ The Guidelines go on
to say that the CCM ‘‘addresses most
control technologies in sufficient detail
for a BART analysis.’’
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The CCM does not say that it
addresses ‘all’ control technologies, just
‘‘most’’, implying that the CCM does not
supply all of the necessary information.
Further, the Guidelines state that the
cost analysis should ‘‘take into account
any site-specific design or other
conditions identified above that affect
the cost of a particular BART technology
option.’’ Again, the CCM acknowledges
that there are conditions, design
scenarios, etc. that are not addressed in
the CCM but that exist in the real world
that must be addressed.
Response: We acknowledge that our
BART guidelines state, ‘‘In order to
maintain and improve consistency, cost
estimates should be based on the [CCM],
where possible’’ and that ‘‘[w]e believe
that the [CCM] provides a goodreference tool for cost calculations, but
if there are elements or sources that are
not addressed by the Control CCM or
there are additional cost methods that
could be used, we believe that these
could serve as useful supplemental
information.’’ The CCM contains two
types of information: (1) Study level
cost estimates of capital and operation
and maintenance costs for certain
specific types of pollution control
equipment, such as SCR, and (2) a
broader costing methodology, known as
the overnight method. We agree that the
language of the BART Guidelines does
not require strict adherence to the study
level equations and cost methods used
to estimate capital and operating and
maintenance costs.
We consider the use of the broader
costing methodology used by the CCM,
the overnight method, as crucial to our
ability to assess the reasonableness of
the costs of compliance. Evaluation of
the cost of compliance factor requires an
evaluation of the cost-effectiveness
associated with the various control
options considered for the facility. A
proper evaluation of cost-effectiveness
allows for a reasoned comparison not
only of different control options for a
given facility, but also of the relative
costs of controls for similar facilities. If
the cost-effectiveness of a control
technology for a particular facility is
outside the range for other similar
facilities, the control technology may be
rejected as not cost-effective. In order
for this type of comparison to be
meaningful, the cost estimates for these
facilities must be performed in a
consistent manner. Without an ‘‘applesto-apples’’ comparison of costs, it is
impossible to draw rational conclusions
about the reasonableness of the costs of
compliance for particular control
options. Use of the CCM methodology is
intended to allow a fair comparison of
pollution control costs between similar
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applications for regulatory purposes.
This is why the BART guidelines
specify the use of the CCM where
possible and why it is reasonable for us
to insist that the CCM methodology be
observed in the cost estimate process.
The overnight method has been used for
decades for regulatory control
technology cost analyses, and its use
ensures equitable BART determinations
across states and across sources.
Comment: Although EPA contends
that States must conform in all respects
to the Agency’s CCM, its own consultant
ignores the Manual when calculating
capital costs and operating and
maintenance costs, and instead uses an
entirely different methodology called
the IPM. 78 FR 34749. EPA tries to
finesse this problem by asserting that
the consultant followed ‘‘the structure
of’’ the CCM and BART Guidelines, id.,
but that simply is not true. The IPM is
a fundamentally different tool and uses
a fundamentally different methodology
than the CCM—it does not follow the
CCM. Therefore, to rely on the
consultant’s cost report to disapprove
Wyoming’s cost analysis and BART
analysis would be arbitrary and
capricious, and not in accordance with
law.
Response: We disagree. As noted
elsewhere in these responses to
comments, in our revised cost estimates,
we have followed the broad
methodology of the CCM, referred to as
the overnight method, while updating
capital and operating and maintenance
costs to reflect current real-world costs.
In doing so, we directed our consultant
(Andover) to reconcile anything in the
IPM cost algorithms that would be
inconsistent with the CCM’s overnight
method. For example, the IPM cost
algorithms include AFUDC, which as
we have established elsewhere in these
response to comments, is not part of the
overnight costs. Accordingly, our
consultant eliminated this cost when
utilizing costs derived IPM cost
algorithms. In effect, we have ‘‘squared’’
the IPM-based costs with the
methodology required by the CCM.
Comment: EPA’s average cost
effectiveness for combustion controls
and SCR for the Laramie River units is
higher than Wyoming’s average cost
effectiveness. Compare, e.g., 78 FR
34773, Table 36 (Wyoming’s SCR
average cost effectiveness of $3,372/ton
for Unit 1) with 78 FR 34775, Table 39
(EPA’s SCR average cost effectiveness of
$3.718/ton for Unit 1). The higher the
cost effectiveness of a given technology,
the stronger the case for rejecting it. If
the State was justified in rejecting SCR
based on its lower predicted cost of
SCR, it would be even more justified in
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rejecting SCR if it had used EPA’s
higher cost. The outcome would not
have changed, and so any error alleged
by EPA is not material.
EPA’s incremental cost effectiveness
for combustion controls plus SCR,
compared with the cost effectiveness of
combustion controls plus SNCR, is
lower than Wyoming’s incremental cost
effectiveness. However, in considering
cost effectiveness for purposes of both
its SIP disapproval and its FIP proposal,
EPA cites and relies primarily on the
average cost effectiveness for SCR, not
the incremental cost. 78 FR 34776
(‘‘[T]he cost-effectiveness for new LNBs
with OFA and SCR ranges from
approximately $3600/ton to $3900/ton
with significant visibility improvement
at the most impacted Class I area. . . .
When considering the cost effectiveness
and visibility improvement of new
LNBs plus OFA and SCR, it is within
the range of what EPA has found
reasonable for BART in other SIP and
FIP actions.’’) EPA refers to incremental
cost only incidentally—not as an
affirmative reason for disapproving
Wyoming’s BART. Id. (‘‘We also
propose to find that the incremental
cost-effectiveness does not preclude the
selection of new LNBs with OFA and
SCR.’’).
Response: We disagree. The
commenter fails to note that the
visibility improvement presented by
EPA in our proposed rule is higher than
that found by the State. The tables cited
by the commenter show a visibility
improvement from SCR of 0.44
deciviews resulting from the State’s
analysis, while EPA’s analysis showed a
visibility improvement of 0.79
deciviews. We found that, when
balancing all of the BART factors, this
level of visibility improvement was
significant enough to justify the costs
associated with SCR. In our revised
visibility modeling analysis for this final
rule, we have presented a lower
visibility improvement for Laramie
River Unit 1 of 0.57 deciviews. We
continue to find that this level of
visibility improvement, and
consideration of the other BART factors,
warrants installation of SCR. The same
can be said for the other two Laramie
River units.
Additionally, the SCR costs and
visibility improvement for the Laramie
River units provided by the State and
EPA are not directly comparable. In the
BART application submitted by Basin
Electric, and relied upon by the State,
and unlike in the case of SNCR, no
additional combustion controls are
assumed in the SCR control scenario.
Since the time that Basin Electric
submitted the BART application to the
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State, additional combustion controls
have been installed on the Laramie
River units. We have taken account of
these additional controls in our
analyses. When assessing the emission
reductions from SCR (or SNCR), and the
associated costs and visibility
improvement, we incorporated the
actual emission rates currently being
achieved with the additional
combustion controls. We have presented
the costs of compliance and visibility
for the additional combustion controls
plus SCR, much in the same way that
the State presented the same factors for
the PacifiCorp units.
Comment: The costs of SCR plus
combustion controls are cost effective at
all of the Wyoming EGUs regardless of
whether the costs are based on EPA’s
cost analyses or the commenter’s 2012
cost analyses conducted for the original
Wyoming SIP. SCR costs for each EGU
in Wyoming, show that SCR plus
combustion controls is very cost
effective for all BART-subject EGUs and
also Dave Johnston Units 1 and 2.
Further, even EPA’s June 2013 cost
estimates for SCR plus combustion
controls show that these controls are
cost effective at all Wyoming EGUs,
despite what the commenter believes
are deficiencies in EPA’s cost
effectiveness analyses that overestimate
the costs of SCR plus combustion
controls. These costs are within the
range that has been required or
proposed of other similar sources to
meet BART as follows:
• Final NOX BART determination for
San Juan Units 1–4 requires installation
of SCR at all four units to meet a NOX
emission limit of 0.05 lb/MMBtu, found
that the costs ranged from $1,987/ton to
$2,651/ton of NOX removed, in 2010
dollars.
• EPA Region 9 has proposed SCR as
BART for Four Corners Units 1–5 to
meet a NOX limit of 0.11 lb/MMBtu at
a cost effectiveness of $2,515/ton to
$3,163/ton in 2008 dollars. That
converts to $2,407/ton to $3,028/ton in
2010 dollars.
• In its FIP for Montana, EPA found
that the cost effectiveness of SCR
controls for Colstrip Units 1 and 2 of
approximately $3,200/ton per unit (in
2010 dollars) was reasonable.
• In its FIP for Arizona regional haze,
EPA is requiring SCR along with
combustion controls to meet BART at
the BART-subject coal-fired units at
Apache, Cholla, and Coronado power
plants at cost effectiveness values
ranging from $2,275/ton to $3,472/ton.
Response: We agree that the costs for
SCR plus combustion controls presented
in our proposed rule, taken without
consideration of the remaining BART
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factors, may generally be considered
cost effective. However, the CAA and
RHR require a consideration of all five
BART factors. For example, a control
that is considered cost effective may not
be warranted if the visibility
improvement is minor. Also, there may
be occasions that, while the average cost
effectiveness of a control is reasonable,
the incremental cost effectiveness may
not be. In short, EPA must weigh more
than just the cost effectiveness when
considering BART.
Also note that, as described elsewhere
in these responses to comments, we
have revised the SCR cost estimates that
we presented in our proposed rule. In
today’s final rule, we have again
balanced the costs along with the
remaining BART factors when
considering the selection of BART
controls.
Comment: EPA’s proposed FIP is
arbitrary, capricious, and contrary to
law for a number of reasons, including
that the EPA’s BART analyses ignored
relevant data. Wyoming based its BART
analyses on site-specific, engineered,
vendor submitted bids for installing
emission controls (citing the SIP
Attachment A materials related to
Laramie River Station), and Basin
Electric has submitted to EPA comments
extensively explaining the bases for
these cost estimates, including the
substantial technical difficulty of
installing SNCR and SCR at Laramie
River Station due to the design of the
three units. The EPA has disregarded
the site-specific cost estimates
submitted for Laramie River Station and
the other BART sources in Wyoming,
and the EPA has alleged without any
specificity that Wyoming did not
properly or reasonably take into
consideration the costs of compliance.
The EPA relied on the IPM Model with
retrofit factors adjusted on a source-bysource basis, instead of relying on the
site-specific costs.
EPA’s October 23, 2012 revised cost
memo states that ‘‘[t]he retrofit factor is
a subjective factor used to account for
the estimated difficulty of the retrofit
that is unique to the facility’’ and noted
that these retrofit factors were
determined without site visits, but
based on satellite images of the
facilities. At EPA’s public hearing in
Casper, Wyoming, on July 26, 2013,
Basin Electric’s consultant, Kenneth
Snell, explained to EPA in detail how
the satellite images fail to reveal
multiple conditions specific to Laramie
River Station that make installing SCR
far more expensive than EPA’s
consultant assumed. EPA’s failure to
rebut those positions is arbitrary and,
moreover, that the EPA’s methodology—
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relying on a subjective interpretation of
satellite images—is itself arbitrary and
capricious because it strains credulity to
claim that one can assess retrofit costs
by simply looking at hazy satellite
pictures of a power plant.
Response: EPA disagrees. First,
Wyoming’s BART analysis 209 was based
upon a 2008 cost estimate by Basin
Electric, which, when adjusted for the
fact that they were performed prior to
addition of combustion controls,
resulted in similar capital costs for SCR
and similar cost effectiveness.
Moreover, and as noted in previous
responses, the costs submitted by
Wyoming should not be considered sitespecific estimates, and therefore
superior to EPA’s costs, on the mere
basis that they were submitted by a
source. In any case, with their
comments on EPA’s reproposal, Basin
Electric has roughly doubled their
claimed cost of SCR, but these were not
part of the Wyoming BART analysis.
These new costs submitted by Basin
Electric are presumably intended to be
more site-specific in nature than those
originally submitted to the State.
Second, the new costs offered by
Basin Electric were found to be deficient
in a number of respects that are
discussed more specifically in other
responses to comments. The new costs
estimates included numerous costs that
were inadequately explained or without
any supporting documentation. The
new cost estimates also did not include
vendor quotes. Per Basin Electric’s
Exhibit 14, page 21: ‘‘The LRS [Laramie
River Station] cost estimates are
conceptual in nature; thus, S&L did not
procure equipment quotes specifically
for the LRS control systems.’’
EPA also disagrees with the
commenter regarding the use of satellite
images for assessing retrofit difficulty.
As noted in responses to other
comments, because they provide a
unique ‘‘bird’s eye’’ view, satellite
images are routinely used to evaluate
conditions at a site: Available space for
a crane, access to and from the site,
interferences that may exist at the site
boundary, interferences between major
pieces of equipment, available space for
laying down material. With regard to
SCR installation, satellite images cannot
reveal whether or not the air preheater
must be relocated to accommodate SCR
ductwork; however, none of the
commenters indicated that any affected
Wyoming BART sources found it
necessary to relocate their air preheater.
Satellite images cannot reveal the ‘‘ideal
209 Wyoming Department of Environmental
Quality Air Quality Division BART Application
Analysis AP–6047 May 28, 2009.
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location’’ for reagent storage equipment,
although this is not a large impact on
cost. When possible and resources
allow, site visits may also provide
useful data in addition to satellite
images, but these are generally
performed in addition to rather than in
lieu of analysis of satellite images.
Mr. Snell’s comments are largely
addressed in other comments and
broadly fall into three areas: (1)
Criticism of EPA’s use of the IPM
algorithm for estimating SCR cost; (2)
Assertions that EPA failed to take into
account site-specific factors affecting
cost; (3) Assertions that EPA failed to
take into account balance of plant
systems that would need to be
upgraded. Each of these items raised by
Mr. Snell as well as the specific issues
within each item has been addressed
elsewhere in other responses to
comments.
Comment: It has been our experience
that the effectiveness of SNCR is highly
dependent upon the characteristics of
each boiler. EPA states that SNCR
typically reduces NOX an additional 20
to 30% above combustion controls
without excessive NH3 slip. NOX
reduction with SNCR is known to be
greater at higher NOX emission rates
than lower rates. Accordingly, EPA has
estimated that the NOX reduction from
SNCR as 30% for initial NOX greater
than 0.25 lb/MMBtu, 25% for NOX from
0.20 to 0.25 lb/MMBtu and 20% for
NOX less than 0.20 lb/MMBtu.
To support this statement, EPA cites
a memo from Jim Staudt, Andover
Technology Partners (‘‘Review of
Estimated Compliance Costs for
Wyoming Electric Generating (EGUs)—
Revision of Previous Memo’’, memo
from Jim Staudt, Andover Technology
Partners, to Doug Grano, EC/R, Inc.,
February 7, 2013, p 7), but this memo
provides no evidence or documentation
to support the assumptions that these
control levels can be achieved. Such
assumptions, whether or not supported,
can significantly affect the outcome of a
BART determination, as EPA explained
regarding Laramie River: ‘‘Therefore,
EPA predicts that the reduction that can
be achieved with SNCR at the Laramie
River units is 20%, which is much
lower than the 48% assumed by
Wyoming. This significantly reduces the
tons reduced by SNCR which is in turn
used in the calculation of cost
effectiveness. It also affects the
incremental cost effectiveness between
SNCR and SCR (both in combination
with additional combustion controls).’’
The use of incremental costs in this
manner is extremely sensitive to bias
due to the interjection of control
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5159
strategies based upon invalid
assumptions of control efficiency.
Another commenter stated that the
EPA is wrong to claim that Wyoming
overestimated the ability of SNCR to
reduce NOX. The commenter made the
following points in support of this
claim:
• The CCM claims that ‘‘[r]eductions
of up to 65% have been reported for
some field applications of SNCR in
tandem with combustion control
equipment such as low NOX burners
(LNB).’’
• Wyoming’s estimates are entirely
consistent with demonstrated SNCR
effectiveness. One study clearly
concluded that ‘‘SNCR has the
capability of NOX reductions in the
range of 30–60%, depending on the
specific retrofit application.’’ See EPRI,
Cardinal 1 Selective Non-Catalytic
Reduction (SNCR) Demonstration Test
Program, at 1–2 (2000). That study
showed, for example, that a 600 MW
unit equipped with LNB could reduce
NOX by an amount greater than EPA’s
‘‘typical’’ results.
• The EPA’s AP 42, Fifth Edition,
Volume I, Chapter 1: External
Combustion Sources recognizes that
‘‘[t]he effectiveness of SNCR depends on
the temperature where reagents are
injected; mixing of the reagent in the
flue gas; residence time of the reagent
within the required temperature
window; ratio of reagent to NOX and the
sulfur content of the fuel that may create
sulfur compounds that deposit in
downstream equipment.’’
The commenter concluded that EPA’s
own literature, as well as other studies,
recognize that SNCR effectiveness is
highly contextual and that it can
achieve reductions far in excess of
Wyoming’s estimates.
The commenter asserted that the EPA,
without explanation, disregarded its
own position on the contextual nature
of SNCR effectiveness, and in turn
disregarded Wyoming’s well-reasoned
analysis by relying instead on ‘‘typical’’
NOX reductions. The commenter
believes that the EPA has practiced
arbitrary decision making because the
EPA did not explain in its proposal why
it now prefers a generic approach to
SNCR effectiveness in reducing NOX
over its previously expressed
recognition that effectiveness depends
on a host of facility-specific factors.
Response: EPA agrees with the
commenter that the effectiveness of
SNCR is highly dependent upon the
characteristics of each boiler, and those
characteristics include furnace
temperature, furnace CO concentration,
NOX level and other factors, but furnace
temperature, CO concentration, and
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NOX level are most important. The
tendency of NOX reduction to decrease
as the NOX concentration is reduced is
a well-established phenomenon. Utility
boiler upper furnace temperatures are
typically in the range of 2000–2300 °F,
but can sometimes be lower or higher.
As described in Section 1.2.3, SNCR
Performance Parameters in the Control
CCM, and also by Sun, Hofmann and
Pachaly in 1990, and by Muzio,
Montgomery, Quartucy and Texeira in
1993,210 211 the percentage reduction in
NOX is strongly impacted by the
residence time, furnace temperature and
the starting, or baseline, NOX. Because
most utility boiler furnace temperatures
and residence times fall into an
expected range, the possible NOX
reduction is generally related to baseline
NOX and Figure 1.5 of the CCM
demonstrates the effect of baseline NOX
and temperature on NOX reduction. Of
course, there are some units that may
fall outside the typical range of furnace
temperatures or CO levels, and can
achieve higher or lower levels of NOX
reduction. As noted in our response to
other comments, the furnace
temperatures at Laramie River Station as
reported by Basin Electric in their
recently submitted comments are much
higher than typical, and this will limit
the possible NOX reduction.
On the other hand, EPA disagrees that
EPA ‘‘disregarded its own position on
the contextual nature of SNCR
effectiveness, and in turn disregarded
Wyoming’s well-reasoned analysis’’. On
the contrary, EPA carefully considered
the contextual situation at Laramie
River Station and the State’s analysis in
reaching its opinion. Experience has
shown that for utility boilers NOX
reductions of 48% using SNCR alone
have only been possible from much
higher NOX baselines than exist at
Laramie River Station. In practice,
facility owners have generally found
that, when using SNCR, the lowest cost
approach is to first reduce NOX as far as
possible with combustion controls and
then use SNCR for additional reductions
beyond what combustion controls can
provide. As a result, SNCR is rarely
used alone to provide 48% NOX
reduction on electric utility boilers
because the baseline levels in practice
210 Sun, W., Hofmann, J., and Pachaly, R., ‘‘PostCombustion NOX Reduction With Urea—Theory
and Practice’’, Seventh Annual International
Pittsburgh Coal Conference, September 10–14,
1990.
211 Muzio, L., Montgomery, T., Quartucy, G.,
Texeira, D., ‘‘The Effect of Residence Time On
SNCR Processes’’, EPRI/EPA 1992 Joint Symposium
on Stationary Combustion NOX Control, Bal Harbor,
FL, May 24–27, 1993.
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are typically too low to achieve such
high NOX reduction through SNCR.
The Cardinal Station citation raised
by the commenter is from a test on a 600
MW unit that had a NOX baseline of
around 450–500 ppm of NOX 212—in the
range of about 0.6 to 0.7 lb/MMBtu, well
above the emission rate of the Laramie
River Station units, which, after
additional combustion controls is about
0.19 lb/MMBtu (annual). This unit
achieved 25% NOX reduction at full
load and 30% NOX reduction at 350
MW in long term tests. As a result, this
project does not support the possibility
of 48% NOX reduction with SNCR at
Laramie River Station, which has a
much lower baseline NOX level than at
the Cardinal Station.
Finally, in Exhibit 14 to Basin
Electric’s comments,213 Sargent &
Lundy states that a ‘‘33% reduction is
not likely to be achievable’’ and
conditionally indicates that a 20%
reduction should be achievable from a
baseline emission rate of 0.19 lb/
MMBtu. EPA agrees that based upon the
information that is available, 20% is a
more reasonable level of reduction to
expect from SNCR at Laramie River
Station.
Comment: Contrary to EPA’s
assertion, Wyoming’s estimate of the
reduction achievable with SNCR does
not depart from the BART Guidelines.
The Guidelines do not specify the
effectiveness of SNCR, so there is no
contradiction. EPA observes that
Wyoming assumed that after installation
of combustion controls (new LNBs and
OFA), SNCR would reduce NOX
emissions from 0.23 lb/MMBtu to 0.12
lb/MMBtu, a 48% reduction. EPA,
however, insists that its consultant
contends that SNCR typically reduces
NOX by 20% to 30%, depending on the
level of NOX going to the SNCR unit.
According to EPA’s consultant, when
the input level of NOX is 0.19 lb/
MMBtu, which EPA says was the annual
average at Laramie River Station Unit 1
in 2012, then after installation of new
LNBs and OFA the reduction achievable
with SNCR is only 20%. 78 FR 34748.
The consultant says that would reduce
the NOX emission rate only to 0.15 lb/
MMBtu. Andover Report at 7.
The only authority cited by EPA’s
consultant for the assumed 20%
reduction is an October 15, 2012 email
from Fuel Tech. Id. at 13. No
information is provided by EPA or its
consultant about the expertise of Fuel
212 Stallings, J., ‘‘Cardinal 1 Selective NonCatalytic Reduction (SNCR) Demonstration Test
Program. EPRI Report 1000154, July 2000, pages
4–7 and 8–1.
213 Exhibit 14, pages 15, 16.
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Tech, who at Fuel Tech sent the email,
why an email from Fuel Tech should be
deemed reliable, persuasive or
authoritative, or why it should take
precedence over Wyoming’s analysis.
EPA’s statements in the Montana FIP
demonstrate that EPA’s critique of
Wyoming’s estimate is misplaced. In
that case, EPA determined that with an
inlet concentration of 0.20 lb/MMBtu,
SNCR can reduce NOX emissions by
25%, as compared to the 20% EPA
endorses for a nearly identical inlet
concentration at Laramie River Station.
77 FR 23988, 24023, 24032, 24039; 77
FR 57864, 57885–57886. EPA relied on
information from Fuel Tech to support
the feasibility of a 25% NOX reduction
at this inlet concentration. 77 FR 57885.
EPA explained that: ‘‘[H]igher NOX
reductions can be achieved at mid to
low load heat inputs, possibly up to
40%. Given that the Colstrip Unit 1 and
2 frequently operate at below full load,
it is likely that on an annual basis SNCR
can achieve better than the 25%
emission reduction assumed by EPA.
EPA further explained that its review
of Clean Air Markets Division (CAMD)
emissions data showed that ‘‘there are
many EGUs equipped with SNCR (with
combustion controls) that are achieving
an emissions rate of 0.15 lb/MMBtu or
lower on a monthly basis.’’ Id. at 57886
(emphasis added). For example, Boswell
Unit 4 had a NOX rate of 0.35 lb/MMBtu
with LNB and close-coupled over fire
air (CCOFA). Id. With SNCR and SOFA,
the unit achieved a monthly NOX rate
between 0.11 and 0.14 lb/MMBtu over
a full 12 month period—a reduction of
60% to 69%. Id. In response to
comments that EPA had overstated the
benefits of SNCR, EPA stated that it
would not adopt a higher post-SNCR
emission rate ‘‘without a showing that
there are circumstances unique to
Colstrip Unit 1 and 2 that would
prevent SNCR from achieving the same
reductions as at Boswell Unit 4.’’ Id.
Response: As noted in other
comments, EPA carefully considered the
contextual situation at Laramie River
Station in reaching its opinion. The
Wyoming analysis 214 indicated that
NOX was reduced by SNCR from 0.23
lb/MMBtu to 0.12 lb/MMBtu. This
seemed to be a higher level of NOX
reduction than expected and
inconsistent with other experience. The
BART analysis suggests no additional
NOX reduction from OFA versus LNB.
Experience has shown that for utility
boilers NOX reductions of 48% using
SNCR alone have only been possible
214 Department of Environmental Quality, Air
Quality Division, BART Application Analysis, AP–
6047, Laramie River Station, May 28, 2009.
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from much higher NOX baselines than
exist at Laramie River Station, and a
NOX reduction from 0.19 lb/MMBtu (the
NOX emissions rate after installation of
combustion controls) to 0.12 lb/
MMBtu—roughly 37% reduction—is
not likely to be feasible either. In
practice, facility owners have generally
found that, when using SNCR, the
lowest cost approach is to first reduce
NOX as far as possible with combustion
controls and then use SNCR for
additional reductions beyond what
combustion controls can provide. Those
coal-fired utility units that the
commenter states are achieving below
0.15 lb/MMBtu emission rates and are
equipped with SNCR are also using
combustion controls—most often LNBs
and SOFA—that lower the NOX
sufficiently that less than 20% NOX
reduction is necessary to achieve under
0.15 lb/MMBtu.
As a result, SNCR is rarely used alone
to provide 48% NOX reduction on
electric utility boilers because the
baseline levels in practice are typically
too low to achieve such high NOX
reduction through SNCR. In fact, Exhibit
14 to Basin Electric’s comments, Sargent
& Lundy states that ‘‘33% reduction is
not likely to be achievable’’ and
conditionally indicates that 20%
reduction should be achievable from a
baseline emission rate of 0.19 lb/
MMBtu. This is more consistent with
what EPA has determined.
EPA also cited input from SNCR
technology supplier, Fuel Tech, which
supports EPA’s opinion that an
expected NOX reduction would be in
the range of 20%. Fuel Tech is the
largest supplier of SNCR technology to
the electric utility industry and is
therefore a very knowledgeable source
of information on SNCR.
Comment: Wyoming did not
underestimate the usage and cost of
urea, and its estimate regarding urea
does not conflict with the BART
Guidelines. EPA contends that producer
prices for urea have increased over the
past three years and that Wyoming’s
analysis is defective because it does not
take those price increases into account.
EPA, however, cannot use information
not available at the time of Wyoming’s
BART determination to second-guess
that determination. EPA’s own
Guidelines counsel that in making a
BART determination, a state should
consider technologies ‘‘available before
the close of the State’s public comment
period,’’ but explicitly provide that ‘‘in
order to provide certainty in the
process,’’ a state ‘‘need not consider
technologies that become available after
this date.’’ 40 CFR Part 51, App. Y.,
section IV(D)(2)(3) (emphasis added).
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This makes sense. Absent some time
cutoff, a state’s SIP would be in a
constant state of flux, subject to constant
challenge based on ever changing
information and technology not
available to the State at the time it made
its BART determination. This is
particularly true given the amount of
time it takes EPA to review a state’s SIP.
It is also consistent with 40 CFR
51.308(f), which requires states to
reevaluate and revise their regional haze
SIPs every ten years. That regulation
clearly contemplates that states have a
duty to take into account new
information only in connection with the
required periodic SIP revisions—not on
an ongoing basis.
EPA is again overstepping its role in
this process. Wyoming completed its
BART analysis in 2009, more than three
years ago, and it would have been
impossible to incorporate the alleged
urea price increases in that analysis.
Simply put, Wyoming’s BART
determination is hardly arbitrary and
capricious simply because it failed to
take into account alleged urea price
increases some three years after
Wyoming completed its BART analysis.
Wyoming did precisely what the
Guidelines instruct: made a BART
determination based on information
available before the close of its public
comment period. 40 CFR Part 51, App.
Y., section IV(D)(2)(3). To disapprove
Wyoming’s cost analysis based on
information that was not available to
would be to employ a ‘‘gotcha’’
approach that runs contrary to EPA’s
own regulations and counter to EPA’s
commitment to do its job fairly and
objectively. If the urea issue is truly
material, EPA should, at a minimum,
allow Wyoming to consider whether
this new information would affect its
BART determination before
disapproving that determination.
Another commenter made a number
of the same points, stating that changes
in urea prices are not a valid basis for
disapproving the state’s cost analyses,
and even if they were, EPA’s facts are
mistaken. According to the commenter,
the EPA asserted that the BART sources
underestimated the cost of SNCR and
EPA supported this conclusion by
stating that Wyoming underestimated
‘‘SNCR reagent (urea) usage and cost.’’
The commenter indicated that the EPA
did not explain how Wyoming
underestimated urea usage, but the EPA
asserted that ‘‘prices for urea have
increased in the last three years’’ since
Wyoming submitted its plan to EPA.
This commenter finds it remarkable
that EPA would claim that a change in
urea prices in the time since Wyoming
submitted its SIP somehow invalidates
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5161
the SIP, indicating that the time that has
elapsed since Wyoming submitted its
plan to EPA is due in large part to EPA’s
failure to take timely action on
Wyoming’s plan. According to the
commenter, the EPA did not claim that
Wyoming’s analyses were invalid when
Wyoming submitted its plan in January
2011, and the EPA did not explain how
the change in urea market prices led
Wyoming to unreasonable conclusions.
The commenter stated that the EPA
appears to believe that Wyoming and
other states must constantly update
their BART analyses to account for
changing urea market prices up until the
date that EPA takes final action on the
plan. The commenter asserted that
under this theory, the EPA can hold
SIPs hostage, waiting for commodity
prices to change, and then disapprove
SIPs on that basis alone. The commenter
indicated that the EPA cited no legal
basis for this theory.
The commenter noted that the BART
Guidelines expressly acknowledge that
‘‘[i]n order to provide certainty in the
process,’’ states ‘‘need not consider
technologies that become available after
[the close of the comment period on the
state plan] (citing 40 CFR part 51, App.
Y, section IV(D)(2)(3)). The commenter
believes that in order ‘‘to provide
certainty in the process,’’ the EPA
cannot claim that state plans are
perpetually subject to invalidation as a
result of changing commodity prices.
The commenter stated that the State’s
price for urea does not conflict with the
BART Guidelines, and EPA offers no
evidence that its price is more reliable
than the State’s price. Commenter
provided the following additional
statements: Even if urea prices have
increased, assumptions regarding such
prices do not constitute a failure to
follow the BART Guidelines because the
Guidelines do not specify what the price
is or how it should be determined. EPA
relies on its consultant’s report to claim
that prices have increased, but that
report also says that there has been
significant variability in cost. Andover
Report at 7–8. There is no analysis by
the consultant as to whether, given the
cited price variability, the current price
is likely to go up or down in the future
or what the actual cost of urea is likely
to be going forward. The consultant
relies on a single source at a single point
in time to pick a urea price to apply for
the life of an SNCR installation, with no
consideration of the price variability.
The reliability of the resulting price is
no greater than a roll of the dice at Las
Vegas, and EPA offers no explanation
why its consultant’s price is superior to
the State’s price. It is merely different,
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and this is yet another technical issue
upon which EPA is required to defer to
the State’s assessment.
EPA’s consultant modified its initial
report issued in October 2012 in the
revised report issued in February 2013,
purportedly to account for an alleged
change in urea prices. However, the
February 2013 report cites the very same
source for current urea prices as the
October 2012 report. Compare Andover
Report (Oct. 23, 2012) at 7. n.23, EPA
docket cite EPA–R08–OAR–2012–0026–
0081, with Andover Report (Feb. 7,
2013) at 7 n.22, EPA docket cite EPA–
R08–OAR–2012–0026–0086. Both
reports cite the same 10/12/2012 email
from Doug Kirk of Fuel Tech. The
additional 10/15/2012 email from
Jennifer Zagorsky of Potash Corp that is
cited in the October report is deleted
from the February report. There is no
explanation for the change.
Moreover, urea prices are relevant to
operating costs for SNCR but are not
relevant to SCR. If the State’s urea prices
were too low, that would mean the State
had underestimated the cost of SNCR,
which is what EPA claims in its
proposal. 78 FR 34748. Such an
underestimate would have no material
impact on the State’s BART
determination and thus provides no
basis for EPA’s disapproval. Once again,
this is a fact that in retrospect supports
the State’s BART decision, rather than
demonstrating it to be arbitrary. If
Wyoming’s estimate of the cost of SNCR
should have been higher, as EPA
maintains, the higher cost would tend to
add further support for rejecting
SNCR—the more expensive a control
technology, the stronger the reason to
reject it as BART. So if EPA is correct
in claiming the State’s assumed urea
price was too low, it is incorrect in
claiming this made a difference in the
State’s BART determination. A mistake
in a cost assumption, if there was a
mistake, is not a per se reason to reject
a BART determination. Such a mistake
would help support disapproval of a
cost analysis and resulting BART
determination only if it overstated costs
in a material way and thus tended to
make a technology appear significantly
more costly than it actually would be.
If the State rejected SNCR based on an
allegedly too-low cost of urea, perhaps
EPA could argue that the State was
wrong in rejecting SNCR. But EPA
makes no such argument. It asserts only
that its consultant’s urea price is
different from the State’s price. As
explained above respecting SNCR, to
succeed in arguing that the State’s
rejection of SNCR justifies disapproval
of the State’s BART, EPA would, at a
minimum, have to show that the State
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was arbitrary and capricious. The choice
of BART is the prerogative of the State,
and the State is charged with evaluating
and balancing all five BART factors and
deciding how much weight to give to
each factor. EPA may not disapprove the
State’s judgment merely because it
disagrees with the State on what is a
reasonable cost, or how the State
balanced costs with other BART factors.
In fact, nothing in EPA’s proposal takes
issue with how Wyoming weighed or
balanced the BART factors, or with the
State’s judgment regarding the terms of
the settlement agreement on which the
State’s BART determination for Laramie
River was based. EPA’s complaint is not
with the State’s judgment in applying
the BART factors. Rather, it is that the
State used information with which EPA
disagrees. But that cannot justify
disapproval of the State’s cost analysis
or BART determination.
Another commenter argued that the
information EPA relied on to conclude
that urea market prices have increased
is itself outdated, noting that the report
EPA cited as support for its urea price
claim was completed October 23, 2012,
and relied on vendor emails from Fuel
Tech and PotashCorp dated October 12,
2012 and October 15, 2012, respectively,
to conclude that urea cost
approximately $650 per ton. The
commenter pointed out that the same
report recognizes that ‘‘there has been
significant variability in [urea] cost,’’
and added that since the date of that
report, urea prices have continued to
vary significantly, falling by roughly 50
percent.215 The commenter noted that in
its February 2013 revised cost analyses,
EPA acknowledged the beginning of the
price decrease, pegging urea costs at
$450 per ton. The commenter added
that urea prices are today far closer to
Wyoming’s price assumptions than
EPA’s, which commenter stated were
among the highest prices for urea in the
last four years. Therefore, the
commenter asserted, even if changes in
commodity prices following SIP
submission were a valid basis for
disapproving SIP analyses that relied on
prices at the time of SIP development,
the EPA is factually mistaken to claim
that Wyoming unreasonably
underestimated urea prices; rather, the
EPA has unreasonably overestimated
urea prices by supporting its analysis
with an abnormally high price that is
not reflective of the current market.
Response: We agree that a change in
the market price of urea, in and of itself,
215 Citing PotashCorp., Market Data, August 14,
2013, which can be found at http://
www.potashcorp.com/customers/markets/market_
data/prices.
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may have not provided EPA sufficient
grounds for rejecting the State’s SNCR
analysis. However, we identified a
number of deficiencies in our proposed
rule, that when taken collectively, led
EPA to conclude that Wyoming’s
consideration of the costs of compliance
and visibility improvement for the EGUs
was inadequate and did not properly
follow the requirements in the BART
Guidelines and statutory requirements.
78 FR 34748. Therefore, regardless of
the market price of urea, EPA would
have reached the same conclusion.
Also, regardless of the cost of urea,
EPA found material errors with the
State’s cost analyses for SNCR that
required that we revise the analysis. In
particular, as described in some detail
in response to other comments, the State
significantly overestimated the ability of
SNCR to reduce NOX at Laramie River
Station. There, the State assumed that
SNCR would reduce NOX by 48%. In
response to comments above, EPA has
definitively established, using
information from a number sources,
including Basin Electric’s own
consultant, as well as a major SNCR
supplier, that SNCR cannot approach
this level of control in the case of
Laramie River Station. As such, it was
appropriate, if not obligatory, for EPA to
revisit the SNCR analysis for Laramie
River Station.
Finally, today we are providing
updated SNCR cost analyses in order to
address information provided by
various commenters. Because we have
taken into consideration input from a
number of commenters when revising
costs, we believe that they represent the
most informed and robust costs for
SNCR presented yet. In particular, we
have revised the costs for Laramie River
to reflect high furnace temperatures and
low reagent utilization (a factor not
considered in Wyoming’s analysis). And
we have also updated the SNCR costs to
reflect the most recently available cost
of reagent as delivered to Wyoming. Our
analyses are consistent with our
response on a similar comment in the
Legal Section of this final action.
Comment: EPA erroneously
calculated urea costs. EPA made two
fundamental and significant errors that
have the effect of overstating the costs
of SNCR, which in turn justified the
EPA’s conclusion that SCR is cost
effective. The errors are as follows:
• EPA mistakenly converted pounds
to tons in its calculation of operation
and maintenance costs for urea. See
EPA’s Revised Cost Analyses for Jim
Bridger Units 1–4—Detailed
Spreadsheet Supporting Analyses (NOXSNCR tab, rows 62–64) (Bridger Costs);
EPA’s Revised Cost Analyses for
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Wyoming Sources—Detailed
Spreadsheet Supporting Analyses (NOXSNCR_0 1_03 tab, rows 62–64) (EPA
Costs). The cost formula multiplies the
urea rate (pounds/hour) times the cost
(dollars/ton) and divides that product
by the source’s megawatt rating to yield
a dollar per megawatt hour cost for urea.
In converting pounds to tons, EPA
mistakenly divided by 1,000, when it
should have divided by 2,000 (the
number of pounds in a ton).
• EPA incorrectly calculated the
water dilution variable for operation
and maintenance costs in urea. See
Bridger Costs (NOX-SNCR tab, rows 62–
64); EPA Costs (NOX-SNCR_01_03 tab,
rows 62–64). EPA’s cost calculation
incorporates the wrong spreadsheet cell
(auxiliary power cost). It should have
instead incorporated spreadsheet cell
for the hourly water rate in thousands
of gallons per hour.
Response: The reagent cost
calculation is correct. The urea rate
(assuming 100% urea) is multiplied by
the cost for 50% by weight urea and is
multiplied by 2 (to account for the fact
that the cost is for 50% by weight urea)
and then divided by 2000 (for the tons
to pounds conversion). The effect is to
divide by 1000, which is the equation
shown. Commenter is correct that there
was an error in the dilution water cost
calculation. The error has been
corrected in EPA’s revised cost
estimates. The error has negligible
impact on the estimated cost of SNCR.
Comment: EPA asserts that it was an
error for Wyoming to evaluate SNCR
using a controlled emission rate of 0.12
lb/MMBtu, which is about a 48%
reduction from 0.23 lb/MMBtu (the rate
without new LNB and OFA). 78 FR
34748. EPA claims that after combustion
controls reduce emissions to 0.19 lb/
MMBtu, SNCR can achieve only a 20%
further reduction, to 0.15lb/MMBtu. Id.,
citing a Fuel Tech vendor report. EPA
declined to accept Wyoming’s
conclusion that SNCR would cut
emissions by 20% to 30%. Id.
This conflicts with EPA’s findings in
the North Dakota FIP. 77 FR 20898. EPA
found that SNCR plus LNB and SOFA
at Coal Creek Station Units 1 and 2
could reduce NOX from a baseline of
0.22 lb/MMBtu to 0.115 lb/MMBtu,
which is a 48% reduction. EPA
explained that after combustion controls
reduced emissions to a degree, SNCR by
itself would cut emissions another 25%,
despite the facility’s claim that SNCR
would achieve only a 20% reduction.
Id., citing a Fuel Tech report.
Response: EPA does not dispute that
SNCR in combination with combustion
controls can reduce NOX by 48% in
some cases. As described in our
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response to other comments, EPA does
not agree that 48% reduction of NOX is
possible at Laramie River Station using
SNCR alone.
Comment: We agree with EPA that on
an annual basis SCR can achieve
emission rates of 0.05 lb/MMBtu or
lower. We recommend that EPA
consider that some coal-fired EGUs are
achieving lower emissions; e.g., our
search of the CAMD database found
seven conventional coal-fired EGUs
averaging 0.04 lb/MMBtu or lower on an
annual basis in 2012. Unlike SNCR, for
SCR the ability to achieve low NOX
emissions is less a function of boiler
characteristics and more a function of
SCR design; it is generally accepted that
SCR can reduce NOX emissions by 80–
90+%. However, the average control
efficiency assumed by EPA for all
Wyoming EGUs was 75% (74% median
value).
The efficiency of NOX removal is
determined primarily by the amount of
catalyst used, as pointed out by Hitachi
in an email from Hitachi to EPA Region
9 regarding SCR at the Navajo
Generating Station. In response to a
question from the EPA on SCR NOX
performance guarantee, Hitachi replied
that a 3 plus 1 SCR design could be
designed to guarantee NOX emissions of
0.05 lb/MMBtu on a 30-day rolling
average. However, Hitachi also stated
that the utility and their engineer need
to determine what margin needs to be
applied to insure the unit is capable of
achieving less than the permit level on
a 30-day rolling average. The EPA stated
that in an engineering study performed
by Sargent & Lundy that with a NOX
permit limit between 0.07 and 0.08 lb/
MMBtu, the SCR would be designed for
0.05 lb/MMBtu. The difference between
0.05 and 0.07 is the margin necessary
for compliance. By underestimating the
efficiency of SCR and potentially
overestimating the efficiency of SNCR,
EPA has overestimated the incremental
costs for SCR.
Response: We agree with the
information provided by the
commenters that SCR technology has, in
some cases, the potential to achieve
emissions of less 0.05 lb/MMBtu
(annual). However, emission limits
associated with BART do not need to
meet the lowest emission rate achieved
with that technology at any coal-fired
power plant. The RHR provides that:
‘‘The determination of BART must be
based on an analysis of the best system
of continuous emission control
technology available and associated
emission reductions achievable for each
BART-eligible source that is subject to
BART.’’ 40 CFR 51.308(e)(1)(ii)(A).
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In determining the controlled
emission level, EPA must consider
emission rates that are practically
achievable in light of routine variations
in operation and understanding that the
SCR must be designed to maintain
emissions below the required limit.
SCRs in the U.S. are typically either 2
plus 1, or 3 plus 1 systems, with two or
three initially full catalyst layers plus a
spare layer for future catalyst additions.
EPA is not aware of, nor has commenter
provided information for, any 4 plus 1
SCR systems operating on coal-fired
utility boilers. Therefore, EPA would
favor more commonly used 2 plus 1 or
3 plus 1 SCR designs rather than the 4
plus 1 system described in commenter’s
citation from Hitachi.
Additionally, the BART Guidelines
state that: ‘‘[i]n assessing the capability
of the control alternative, latitude exists
to consider special circumstances
pertinent to the specific source under
review, or regarding the prior
application of the control alternative’’
(40 CFR Part 51, Appendix Y, section
IV.D.3) and that ‘‘[t]o complete the
BART process, you must establish
enforceable emission limits that reflect
the BART requirements’’. (40 CFR Part
51, Appendix Y, section V). The fivefactor BART analysis described in the
Guidelines is a case-by-case analysis
that considers site-specific factors in
assessing the best technology for
continuous emission controls. After a
technology is determined as BART, the
BART Guidelines require establishment
of an emission limit that reflects the
BART requirements, but does not
specify that the emission limit must
represent the maximum level of control
achieved by the technology selected as
BART.
While the BART Guidelines and the
RHR do not preclude selection of the
maximum level of control achieved by
a given technology as BART, the
emission limit set to reflect BART must
be determined based on a consideration
and weighting of the five statutory
BART factors. Therefore, limits set as
BACT during PSD review, or emission
rates achieved from the operation of
individual facilities under an emissions
trading program (e.g., CAA Interstate
Rule) may provide important
information, but should not be
construed to automatically represent the
most appropriate BART limit for a given
technology.
As noted in our response to other
comments, EPA does not believe that we
have overestimated the performance of
SNCR, nor does EPA believe that the
performance of SCR has been
underestimated.
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Comment: EPA’s errors in calculating
SCR costs resulted in significantly
skewed cost-effectiveness
determinations for every unit analyzed.
EPA overstated the costs per ton of SCR
by between 33 and 99 percent. Although
even EPA’s cost estimates for SCR are
within the range that the EPA
previously has found reasonable, the
revised cost analyses correcting what
the commenter believes are EPA errors
make it clear that SCR is cost effective
for every Wyoming EGU.
Response: Commenter’s assertion that
EPA’s costs are too high is largely based
upon disagreement over the retrofit
factors used, EPA’s inclusion of a
provision for taxes and insurance, and
disagreement with use of 7% interest in
determining the capital recovery factor.
EPA has responded to each of these
issues in other comment responses and
has developed revised cost estimates
that will incorporate changes where
EPA believes the changes are warranted.
Comment: Wyoming has
overestimated the cost of SCR. Wyoming
has not provided justification or
documentation for their cost estimates.
We (the commenter) were not provided
with any vendor estimates or bids, and
Wyoming did not use the CCM, as
recommended by the BART Guidelines.
For example, the cost estimates used by
Wyoming and EPA contained AFUDC,
which is not allowed by the CCM and
has been rejected by EPA Region 8 in
other analyses. As a result, total capital
costs estimated by Wyoming for SCR
exceeded $300/kW at ten of the fifteen
EGUs evaluated. EPA has compiled a
graphic presentation of SCR capital
costs adjusted to 2009 dollars. The EPA
data confirm that SCR capital costs
typically range from $73–$243/kW.
Wyoming has not demonstrated unique
features for the Wyoming EGUs that
would justify cost estimates so much
higher than the range for the industry.
Response: We agree that in some cases
Wyoming has overestimated the cost of
SCR. In order to address the cost
analysis deficiencies noted by the
commenter, EPA has performed revised
cost analyses for EGUs where the cost of
SCR is pertinent. In our revised cost
analyses, we have followed the structure
of the CCM, though we have used the
IPM cost models to estimate direct
capital costs and operating and
maintenance (O&M) costs.
3. Consideration of the Five Factors
Comment: We received numerous
comments that the State followed the
requirements of the RHR and CAA, and
simply did not come to the same
conclusions as EPA. Commenters stated
that Wyoming’s BART determinations
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were based on a consideration of all five
BART factors and that the State weighed
each factor appropriately.
Response: We disagree with this
comment. As discussed in detail in
section VII.C.3.a of our proposed
rulemaking, the EPA identified
numerous issues and errors with the
State’s cost analyses, including the fact
that the State underestimated the cost of
SNCR and overestimated the cost of
SCR; the State overestimated the
emission reductions from SNCR; the
State underestimated the control
efficiency of SCR; the State
overestimated the capital costs for SCR;
and the State allowed for some costs not
allowed by the CCM and thus their cost
analyses did not meet the requirements
of the RHR. 78 FR 34748.
Likewise, for the visibility
improvement modeling, EPA discussed
in detail in section VII.C.3.b of our
proposed rulemaking why the State’s
visibility modeling did not meet the
requirements of the RHR (78 FR 34749).
As stated in our proposed rulemaking,
Wyoming did not consider the visibility
improvement associated with SNCR,
which is clearly in conflict with the
requirements set forth in section
169A(g)(2) of the CAA, as well as in the
implementing regulations, which
require that states take into
consideration ‘‘the degree of
improvement in visibility which may
reasonably be anticipated to result from
the use of such technology.’’ In
addition, it was not possible for EPA, or
any other party, to ascertain the
visibility improvement that would
result from the installation of the
various NOX control options because
Wyoming modeled the emission
reductions for multiple pollutants
together in its SIP. Finally, Wyoming
did not establish baseline emission rates
used for modeling in a manner
consistent with BART Guidelines. That
is, Wyoming did not use ‘‘the 24-hour
average actual emission rate from the
highest emitting day of the
meteorological period modeled (for the
pre-control scenario).’’ 70 FR 39170.
Instead, Wyoming modeled baseline
emission rates reflective of permitted
emission limits, leading to both an
underestimation, and in some cases,
overestimation of visibility impacts.
Therefore, contrary to the commenters
claim, today’s action is the result of
Wyoming’s failure to meet certain
statutory and regulatory requirements,
and not a simple matter of the State and
EPA arriving at different conclusions.
Comment: Wyoming’s BART NOX
determinations for the Naughton power
plant further demonstrate Wyoming’s
consideration and balancing of all five
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