60978 Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 

revenue royalty rate structures for 

certain digital music services, and 

changes in accounting and industry 

practice in the years since the rules 

were last substantially amended. 

This document corrects two 

inadvertent errors contained in the 

regulations set forth in the final rule. 

First, section 210.16, paragraph 

(c)(1)(vi), included an incorrect crossreference to paragraph ‘‘(a)(3),’’ which 

does not exist. This incorrect reference 

is removed and replaced with a 

reference to paragraph ‘‘(c)(3).’’ Second, 

section 210.17, paragraph (h), included 

a clerical error that would have required 

copyright owners to request annual 

statements of account that they had not 

received for fiscal years ending after 

March 1, 2009 and before November 17, 

2014, before the effective date of the 

regulations. This error is corrected to 

reflect the Office’s intent to permit 

copyright owners to make such a 

request at any time within 6 months of 

the effective date of the regulations. 

Accordingly, in the final rule FR Doc. 

2014–22235 published on September 

18, 2014 (79 FR 56190), the Office 

makes the following corrections: 

■ 1. On page 56209, in the third column, 

§ 210.16(c)(1)(vi) is corrected to read as 

follows: 

§ 210.16 Monthly statements of account. 

* * * * * 

(c) * * * 

(1) * * * 

(vi) The phonorecord identification 

information required by paragraph (c)(3) 

of this section. 

* * * * * 

■ 2. On page 56215, in the second 

column, § 210.17(h) is corrected to read 

as follows: 

§ 210.17 Annual statements of account. 

* * * * * 

(h) Annual Statements for periods 

before the effective date of this 

regulation. If a copyright owner did not 

receive an Annual Statement of Account 

from a compulsory licensee for any 

fiscal year ending after March 1, 2009 

and before November 17, 2014, the 

copyright owner may, at any time before 

May 17, 2015, make a request in writing 

to that compulsory licensee requesting 

an Annual Statement of Account for the 

relevant fiscal year conforming to the 

requirements of this section. If such a 

request is made, the compulsory 

licensee shall provide the Annual 

Statement of Account within 6 months 

after receiving the request. If such a 

circumstance and request applies to 

more than one of the compulsory 

licensee’s fiscal years, such years may 

be combined on a single statement. 

Dated: October 1, 2014. 

Maria A. Pallante, 

Register of Copyrights. 

James H. Billington, 

Librarian of Congress. 

[FR Doc. 2014–24175 Filed 10–8–14; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2014–0214; FRL–9917–43– 

Region 6] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Regional Haze and Interstate Transport 

Affecting Visibility State 

Implementation Plan Revisions; 

Withdrawal of Federal Implementation 

Plan for the San Juan Generating 

Station 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

withdraw a Federal Implementation 

Plan (FIP) for New Mexico that became 

effective on September 21, 2011, that 

applies to the San Juan Generating 

Station (SJGS) in San Juan County, New 

Mexico, which is operated by the Public 

Service Company of New Mexico 

(PNM). We are removing the FIP 

requirements because we are taking 

final action today in a separate 

document in the Federal Register to 

approve revisions to the New Mexico 

State Implementation Plan (SIP), 

submitted by the New Mexico 

Environmental Department (NMED) to 

EPA, which address revised Best 

Available Retrofit Technology (BART) 

requirements for oxides of nitrogen 

(NOX) and the requirements of the Clean 

Air Act (CAA) concerning noninterference with programs in other 

states to protect visibility. 

DATES: This final rule is effective 

November 10, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2014–0214. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information the disclosure of 

which is restricted by statute. Certain 

other material, such as copyrighted 

material, will be publicly available only 

in hard copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. A 15 cent per 

page fee will be charged for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area on the seventh 

floor at 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Feldman (6PD–L), Air Planning 

Section, Environmental Protection 

Agency, Region 6, 1445 Ross Avenue 

(6PD–L), Suite 1200, Dallas, TX 75202– 

2733. The telephone number is (214) 

665–9793. Mr. Feldman can also be 

reached via electronic mail at 

feldman.michael@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. What is the background for this action? 

II. What final action is EPA taking? 

III. Responses to comments received 

IV. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

The State of New Mexico adopted and 

transmitted an Interstate Transport SIP 

revision on September 17, 2007 for the 

purpose of addressing the ‘‘good 

neighbor’’ provisions of the CAA section 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

NAAQS and the PM2.5 NAAQS. EPA 

disapproved a portion of that SIP 

submittal addressing the requirements 

with respect to visibility transport and 

concurrently promulgated a FIP 

establishing enforceable NOX and SO2

emission limits for the SJGS on August 

22, 2011. EPA found that New Mexico 

sources, except the San Juan Generating 

Station, were sufficiently controlled to 

eliminate interference with the visibility 

programs of other states (see 76 FR 

52388). EPA set SO2 emission limits of 

0.15 pounds per million British Thermal 

Units (lb/MMBtu) for the four units of 

the SJGS. EPA set enforceable NOX

emission limits of 0.05 lbs/MMBtu 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 60979 

based upon EPA’s NOX BART 

determination for SJGS, to ensure that 

its emissions would meet the ‘‘good 

neighbor’’ requirement for visibility 

protection, as well as the requirement 

for NOX BART. (76 FR 52388, August 

22, 2011). EPA’s NOX BART emission 

limits can be met by the installation of 

selective catalytic reduction (SCR) at all 

four units of SJGS. Among other things, 

the FIP also included a sulfuric acid 

(H2SO4) emission limit to minimize the 

contribution of this pollutant to 

visibility impairment, since emissions 

of this pollutant can potentially increase 

due to operation of SCR. 

The background for today’s final rule 

withdrawing that FIP and today’s 

separate action approving the New 

Mexico SIP revisions is discussed in 

detail in our May 12, 2014 notice (see 

79 FR 26909). The comment period on 

the proposed action was open for thirty 

days, and several comments were 

received. 

II. What final action is EPA taking? 

We are withdrawing the New Mexico 

Regional Haze (RH) and Interstate 

Transport (IT) FIP at 40 CFR 52.1628, 

which applies to Units 1, 2, 3, and 4 of 

PNM’s San Juan Generating Station. As 

explained in our May 12, 2014 proposal 

(see 79 FR 26909), this action is possible 

because of our separate action to 

approve the New Mexico SIP revisions, 

which update the New Mexico RH and 

Visibility Transport SIP to include a 

revised BART determination for the 

units at the PNM’s San Juan Generating 

Station, as well as enforceable SO2 and 

NOX emission limits for the SJGS that 

sufficiently prevent emissions from 

sources in New Mexico from interfering 

with the visibility programs of other 

states. New Mexico’s revised SIP 

includes a control scenario proposed by 

PNM that incorporates the shutdown of 

two of the four units at the SJGS by 

December 31, 2017—a new control 

scenario that had not been evaluated as 

part of the FIP. EPA has determined that 

when cost, energy and non-air quality 

environmental impacts, and anticipated 

visibility benefits are taken into 

consideration, New Mexico’s revised 

determination of NOX BART for the 

SJGS is reasonable. The revised BART 

determination in the New Mexico RH 

SIP revision results in substantial 

visibility benefits and energy and nonair quality environmental benefits, and 

is highly cost-effective. The incremental 

visibility benefit of the four-SCR 

scenario of the FIP over the State’s 

revised BART determination is small at 

most Class I areas, and New Mexico 

reasonably concluded that this small 

additional visibility benefit did not 

justify the increase in costs associated 

with installation of SCR on all four 

units. EPA’s review of the New Mexico 

SIP revisions is discussed in detail in 

our May 12, 2014 document (see 79 FR 

26909). 

EPA has made the determination that 

the New Mexico RH and Visibility 

Transport SIP revisions are approvable 

because the plan’s provisions meet all 

applicable requirements of the CAA and 

EPA implementing regulations. EPA is 

finalizing this action under section 110 

and part C of the Act. The action to 

approve the SIP is in a separate action 

contained in today’s Federal Register. 

Upon the effective date of the Federal 

Register documents, the requirements in 

the approved SIP apply and the FIP 

requirements for the SJGS are 

withdrawn. 

III. Responses to Comments Received 

We received several comments on our 

proposed approval of the 2013 RH SIP 

revisions. Copies of the comments are 

available in the docket for this 

rulemaking. A summary of the issues 

raised in the comment letters and our 

responses to these comments is 

included in our notice of final 

rulemaking concerning the approval of 

the New Mexico SIP revisions and is 

reproduced below. (Please see Docket 

No. EPA–R06–OAR–2014–0214 in the 

regulations.gov Web site). 

Comment: A commenter, identified as 

a part owner of SJGS Unit 4, requested 

a 12-month extension of the SIP’s 

compliance period for meeting the new 

NOX limits. The commenter referred to 

the EPA proposal, ‘‘Carbon Pollution 

Emission Guidelines for Existing 

Stationary Sources: Electric Utility 

Generating Units,’’ subsequently 

published at 79 FR 34829 (June 18, 

2014), and asserted that an extension 

would allow for adequate consideration 

of the impacts of the proposal relative 

to the investment considerations of 

installing SNCRs at the SJGS. The 

commenter stated that ownership of 

SJGS presently includes utilities from 

five Western states, and the interstate 

nature of ownership and emissions 

complicates a coordinated compliance 

planning process. Another commenter, 

identified as a part owner of SJGS Units 

1 and 2, supported the costs, anticipated 

haze reduction, and other 

environmental benefits associated with 

the 2013 RH SIP revision, but similarly 

requested that EPA amend its approval 

and provide additional time for 

installation of SNCR on the basis that 

more time is needed to study the 

proposed standards for reducing carbon 

pollution at existing EGUs. 

Response: EPA believes that CAA 

section 111(d) efforts and actions will 

tend to contribute to overall air quality 

improvements and thus should be 

complementary to criteria pollutant and 

regional haze SIP efforts but do not 

provide a basis for delaying 

implementation of these efforts. See 79 

FR at 34931. The 111(d) proposal 

specifically mentions the next 10-year 

SIP revision for regional haze that is due 

by July 2018 and covers the time period 

through 2028, explaining that the 

timeframes proposed for submittal of 

the CAA section 111(d) state plans will 

allow considerable time for 

coordination by states in the 

development of their respective plans. 

The proposal does not suggest that 

further delays are warranted for 

implementing the regional haze 

requirements that were first due in 

December 2007. Indeed, states and 

affected sources will be able to take into 

account requirements of programs such 

as Regional Haze in considering the 

development of state plans under 

section 111(d). 

More importantly here, EPA cannot 

alter an otherwise approvable SIP 

revision to extend a compliance date. 

The 2013 RH SIP revision submitted by 

New Mexico provides the compliance 

date. Moreover, the compliance dates 

that New Mexico set are as ‘‘expeditious 

as practicable,’’ as required by the CAA. 

See CAA section 169A(b)(2)(A), (g)(2). 

Because the compliance dates meet 

CAA requirements, EPA cannot 

establish different compliance dates 

when taking action on the SIP revision. 

See CAA section 110(k)(3), (l). 

Comment: A commenter stated that 

unit retirements and NOX controls at 

SJGS would reduce regional haze and 

provide other significant environmental, 

economic, and health benefits, and 

states that ‘‘these additional benefits 

must be recognized.’’ The commenter 

requested, however, that EPA’s approval 

contain a statement reflecting EPA’s 

willingness to consider eliminating the 

NOX emission control requirements on 

Units 1 and 4 if, by December 31, 2016, 

there is a commitment to permanently 

retire Unit 1 and/or 4 within a 

reasonably short time-frame. PNM 

responded to this request in its own 

comment (although it mistakenly cited 

the date of December 31, 2015 when 

paraphrasing the comment). PNM’s 

comment stated that EPA should reject 

the request for an EPA statement 

regarding the retirement of additional 

capacity because the Agency lacks any 

analysis or basis upon which to evaluate 

the efficacy or legality of the request. 

Response: We decline to endorse a 

proposal not before us, as suggested by 


tkelley on DSK3SPTVN1PROD with RULES
60980 Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 

1 40 CFR part 51, app. Y, section IV.D.5. 

2See New Source Review Workshop Manual (Oct. 

1990), available at http://www.epa.gov/ttn/nsr/gen/ 

wkshpman.pdf. 

the commenter. Because the 2013 RH 

SIP revision meets CAA requirements, 

we are required to approve it. See CAA 

section 110(k)(3), (l). 

Comment: PNM submitted a comment 

supporting the proposed rule, agreeing 

that the 2013 RH SIP revision is 

reasonable, even when EPA’s estimated 

SCR costs are used. PNM asserted, 

however, that its own estimated SCR 

capital costs were confirmed by detailed 

bids from engineering, procurement, 

and construction contractors, and that 

none of the bids were in the range of 

EPA’s estimated SCR costs. PNM 

believed that these bids should satisfy 

any requirement for enhanced 

documentation to support higher SCR 

costs, but acknowledged that their cost 

estimates provide different treatment to 

items such as sorbent injection, 

apportionment of balanced draft costs, 

and fees and contingencies. 

Response: We appreciate PMN’s 

comment supporting approval. As 

identified by the comment, EPA’s cost 

analysis for SCR was based on a 

different design (e.g., no costs for 

sorbent injection) than the design PNM 

used when soliciting bids from vendors. 

PNM’s bids were not submitted with the 

comment and, based on the available 

documentation, we remain unable to 

conclude that certain line items in 

PNM’s SCR cost estimates are well 

supported. While the BART Guidelines 

explain that data from vendor bids may 

be used in developing equipment cost 

estimates, this does not mean that 

bottom-line figures can serve as a 

substitute for a full cost analysis or that 

all costs included therein would be 

appropriate for making an assessment of 

cost-effectiveness. The expectation 

remains that the cost analysis maintain 

and improve consistency through 

adherence to the OAQPS Control Cost 

Manual, where possible. Moreover, the 

BART Guidelines state that 

documentation is expected, and indeed 

especially important, where a state 

believes that costs will be unreasonable 

even though other recent retrofits have 

cost-effectiveness values that are within 

what has been considered a reasonable 

range. As we established in our FIP, 

recent SCR retrofits at coal-fired power 

plants have been found to be costeffective, and this cost effectiveness is 

generally validated by large emission 

reductions even when there are large 

capital costs. 

Comment: NMED provided comments 

in support of approval and stated that 

they generally concur with our 

description and evaluation of the State 

Alternative for NOX BART. 

Response: We appreciate this 

comment. 

Comment: NMED commented that 

states cannot be required to take a unitspecific (or unit-by-unit) approach to 

assessing the BART factors. In American 

Corn Growers v. EPA, 291 F.3d 1, 8 (D.C. 

Cir. 2002), a reviewing court held that 

it was invalid to consider visibility 

impacts on a multiple-source basis 

while employing a source-specific 

approach to the other four BART factors. 

The commenter stated that requiring 

states to assess visibility on a facilitywide basis while considering the other 

factors on a unit-by-unit basis would be 

similarly unsupported by the statute 

and would impermissibly constrain 

state authority. 

Response: We disagree with this 

comment. In American Corn Growers, 

the D.C. Circuit held that EPA could not 

adopt a ‘‘group-BART approach’’ to the 

visibility factor because it could force 

states to require BART controls at some 

sources without any empirical evidence 

of a particular source’s contribution to 

visibility impairment in a Class I area. 

As a result, the Regional Haze Rule and 

BART Guidelines require states to 

analyze the five statutory factors for 

each BART-eligible source without 

reference to the benefits that BART will 

achieve at other sources. Beyond this, 

however, the court did not opine on 

how the BART factors should be 

analyzed or weighed by states, let alone 

proscribe a unit-specific or prescribe a 

facility-wide approach to BART. 

As we recently explained in our 

action on the Wyoming regional haze 

SIP, see 79 FR 5031 (Jan. 30, 2014), the 

BART Guidelines prescribe that states 

‘‘must conduct a visibility improvement 

determination for the source(s) as part of 

the BART determination,’’ 1 and we 

interpret this language as requiring 

states to consider the visibility 

improvement from BART applied to the 

BART-eligible source as a whole. We do 

not believe that either the CAA or the 

BART Guidelines mandate either a unitspecific or a facility-wide approach to 

analyzing or weighing the remaining 

BART factors. In most circumstances, 

however, we believe that states should 

use a unit-specific approach to assessing 

the technical feasibility and costs of 

controls options, as well as the existing 

controls and remaining useful life of 

BART-eligible units. This approach is 

clearly contemplated by the BART 

Guidelines and has been used for 

decades in other CAA contexts, such as 

the evaluation of Best Available Control 

Technology (BACT) for new and 

modified major stationary sources.2 A 

unit-specific approach to these factors is 

appropriate because the age, type, size, 

location, and emission characteristics of 

the various emission units at a source 

can differ greatly, and many control 

options by design apply to a single unit. 

However, in unique circumstances, such 

as in situations where a control strategy 

can be implemented facility-wide or 

where the benefits of unit shutdowns 

must be taken into account, then we 

believe that the CAA and BART 

Guidelines provide states with the 

flexibility to analyze and weigh the 

BART factors for the source as a whole, 

rather than for its constituent emission 

units. 

Comment: NMED responded to a 

statement in the proposal that expressed 

some concern with the appropriateness 

of including SO2 reductions from units 

1 and 4 in one of the NOX BART control 

options analyzed, rather than as part of 

the facility’s baseline emissions, by 

explaining that the SO2 limit of 0.10 lbs/ 

MMBtu is required by the 2013 RH SIP 

revision alone and would not be 

required if the FIP continues to remain 

in force. 

Response: While the inclusion of the 

SO2 reductions in the SIP helps to 

further demonstrate non-interference 

with the visibility protection programs 

of other states, in keeping with the 

visibility transport requirements of CAA 

section 110(a)(2)(D)(i)(I), and helps in 

showing the overall visibility benefits of 

the 2013 RH SIP revision, we had noted 

that those reductions do not specifically 

lend support to a visibility improvement 

determination for NOX BART through 

the application of NOX controls. 

However, no commenters took issue 

with the inclusion of SO2 reductions in 

the studied scenarios or insisted that 

refinements were necessary on this 

point, and it remains our view that the 

inclusion of the reductions did not 

meaningfully impact the evaluation of 

visibility benefits due to NOX

reductions at the facility. 

Comment: The Navajo Nation 

submitted a comment supporting the 

proposal as the best scenario for meeting 

BART, endorsing it for having 

reasonable costs of compliance and a 

realistic timeframe. The comment also 

stated that the 2013 RH SIP revision 

addressed concerns regarding potential 

job losses faced by Navajo work forces 

at the SJGS and San Juan mine more 

effectively than EPA’s FIP. 

Response: We appreciate this 

comment supporting approval. 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 60981 

3The comment provided a citation to 79 FR 

23273 (April 28, 2014) relating to the Tasco facility 

in Idaho, and one to ‘‘78 FR 24112,’’ which we 

interpret as having intended to refer to 78 FR 60700 

(October 2, 2013) (bearing ‘‘FR Doc. 2013–24112’’). 

4Specifically, the commenter cited our Indiana 

regional haze SIP action (77 FR 3975, 3982 (Jan. 26, 

2012)) for its statement that a source needs to 

‘‘implement BART at each BART-subject unit,’’ and 

the Montana regional haze FIP (77 FR 57864, Sept. 

18, 2012) for discussing statutory BART factors for 

units at a BART source. 

Comment: One commenter stated that 

the 2013 RH SIP revision appears to be 

an alternative consistent with the intent 

of 40 CFR 51.308(e)(2) and therefore 

needs to demonstrate greater reasonable 

progress than EPA’s BART 

determination. The fact that the 2013 

RH SIP revision does not demonstrate 

greater reasonable progress than EPA’s 

BART determination gave the 

commenter concern because the 

commenter considered it a departure 

from rules and guidance. The 

commenter also asserted that previous 

EPA decisions have required a source to 

demonstrate its proposed alternative is 

better than EPA’s BART determination, 

citing actions for Idaho and the Four 

Corners Power Plant.3

Response: We disagree that the 2013 

RH SIP revision appears to be a BART 

alternative under § 51.308(e)(2). New 

Mexico explicitly stated that it was not 

evaluating a BART alternative when 

responding to comments during the 

state process and again when submitting 

comments to support our proposed 

approval. Therefore, New Mexico was 

not required to make a demonstration of 

greater reasonable progress. Instead, 

New Mexico evaluated a new, sourcespecific BART determination under 

§ 51.308(e)(1). To fully account for the 

source owner’s proposed unit 

shutdowns, New Mexico chose to weigh 

the BART factors in light of source-wide 

considerations. As explained in our 

proposal and elsewhere in our 

responses to comments, we believe that 

this approach is permissible under the 

CAA and the BART Guidelines. The 

prior EPA actions cited by the 

commenter are not relevant to our 

action on New Mexico’s NOX BART 

determination for SJGS. While both the 

Four Corners and Idaho actions 

contained BART alternatives that 

demonstrated greater reasonable 

progress, we are not evaluating a BART 

alternative here. Moreover, while the 

Idaho action also involved two new 

BART determinations that happened to 

be more stringent than the state’s 

original BART determinations, neither 

the CAA nor our regulations require a 

new BART determination to be more 

stringent in every instance in order to 

supersede a prior BART determination. 

Comment: One commenter argued 

that the CAA requires that any 

alternative regional haze strategy must 

outperform the visibility gains of the 

existing strategy or, in other words, be 

‘‘better than BART,’’ and the 2013 RH 

SIP revision fails to accomplish this. 

Citing to CAA section 7410(a) and (l), 

the commenter argued that the 

characterization of the 2013 RH SIP 

revision as including a new BART 

determination is plainly unlawful 

because the State has not undertaken 

the BART analysis required by the CAA 

and BART Guidelines, and EPA did not 

provide any explanation for why the SIP 

revision is approvable when the FIP had 

a more stringent BART determination. 

Response: As explained above, the 

2013 RH SIP revision was not submitted 

to meet § 51.308(e)(2) requirements, so it 

is not required to be better than BART. 

As we stated in the proposal, the 2013 

RH SIP revision contains a new, sourcespecific BART analysis that is based on 

different underlying facts than those 

that were present when we evaluated 

our FIP. Thus, the commenter’s 

assertion that the state failed to 

undertake a BART analysis is clearly 

incorrect. Finally, contrary to the 

commenter’s assertion, CAA section 

110(l) does not prohibit a state from 

submitting a SIP that is less stringent 

than a FIP. Our proposal provided an 

analysis conducted under section 110(l), 

which showed that the 2013 RH SIP 

revision would not interfere with the 

attainment or maintenance of any 

NAAQS or any other CAA requirement. 

See 79 FR at 26920. Because New 

Mexico complied with the CAA’s 

visibility protection provisions, the 

Regional Haze Rule, and the BART 

Guidelines, and made a reasonable 

control determination based on the 

weighing of the five factors, EPA is 

required to approve the 2013 RH SIP 

revision. 

Comment: One commenter stated that 

the 2013 RH SIP revision does not 

comply with the mandatory unitspecific analytical approach required by 

the CAA. The commenter argued that 

the BART Guidelines require BART to 

be determined on a unit-specific basis 

because a BART emission limit must be 

established for each affected emission 

unit. The commenter also pointed out 

that the BART Guidelines provide an 

example of a unit-specific approach 

where they state that ‘‘control options 

must be analyzed for Units B through H 

as well as Unit A.’’ Consequently, the 

commenter concluded that New Mexico 

and EPA are required to follow the unitspecific approach. 

Response: We disagree with this 

comment. The portion of the BART 

Guidelines cited by the commenter 

explains how all BART units at the 

subject to BART source must be 

included in the BART analysis. The 

2013 SIP revision implements BART at 

each BART-subject unit by requiring 

either shutdowns or controls. Also, 

while the BART Guidelines clearly 

contemplate that states will analyze 

technical feasibility and costeffectiveness on a unit-specific basis, 

they do not explicitly require such an 

approach, nor do they provide guidance 

for situations in which a source 

proposes unit shutdowns as an 

emission-reduction strategy. Moreover, 

contrary to the commenter’s assertion, 

the CAA does not mandate any specific 

analytical approach. Consequently, in 

situations where a state is 

contemplating a novel control scenario 

not contemplated by the BART 

Guidelines, such as one that involves 

unit shutdowns, we believe that states 

have the flexibility to tailor their BART 

analyses by evaluating and weighing the 

BART factors on a facility-wide (i.e., 

‘‘source’’) basis rather than on a unitspecific basis in order to account for the 

emission reductions and benefits that 

would directly result from the 

shutdowns. Moreover, while BART 

emission limits are also typically 

established for each unit that comprises 

the BART-eligible source, as New 

Mexico chose to do here, nothing in the 

CAA or BART Guidelines prevents a 

state from setting an emission limit that 

averages emissions across multiple 

units, so long as that limit is ‘‘based on 

the degree of reduction achievable 

through the best system of continuous 

emission reduction for each pollutant.’’ 

See 40 CFR 51.301. 

Comment: One commenter stated that 

a facility-wide BART determination is 

inconsistent with other EPA actions. 

The commenter cited to EPA actions in 

Indiana and Montana to support this 

contention.4 The commenter also 

pointed out that EPA used a unitspecific approach to analyzing the first 

four factors when promulgating its FIP 

for SJGS. The commenter called EPA’s 

proposal an unexplained departure from 

EPA’s past practice in implementing its 

binding guidelines. 

Response: We disagree with this 

comment for the same reasons 

explained above. EPA’s actions in 

Indiana, Montana, and our FIP for SJGS 

did not involve unit shutdowns and 

therefore are not determinative of how 

the BART statutory factors should be 

considered and weighed in this context. 

Also, contrary to the commenter’s 

assertion, we explained in our proposal 

why New Mexico’s approach was 


tkelley on DSK3SPTVN1PROD with RULES
60982 Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 

reasonable in light of the unique 

circumstances presented and, on that 

basis, cannot validly be seen as any 

departure from past actions. As was 

stated, the state’s approach reasonably 

takes into account the visibility, energy, 

and non-air quality environmental 

benefits associated with unit 

shutdowns. See 79 FR 26918. 

Furthermore, the 2013 SIP revision 

implements BART at each BART-subject 

unit by requiring either shutdowns or 

controls. 

Comment: A commenter stated that 

EPA’s proposal arbitrarily rejected SCR 

in favor of less effective pollution 

controls even though EPA found that an 

emission limitation based on SCR was 

BART in the FIP. The commenter 

explained that SCR provides the best 

visibility outcomes and is cost-effective. 

Response: Under different factual 

circumstances, we determined that SCR 

for the four SJGS units had reasonable 

average cost-effectiveness values and 

would promote significant visibility 

improvements, thereby supporting the 

basis for the emission limits set forth in 

the FIP. In the 2013 RH SIP revision, 

New Mexico demonstrated that SNCR in 

tandem with shutdowns has visibility 

benefits on par with those anticipated 

from the FIP at much lower overall 

costs, while also reducing overall energy 

and non-air quality environmental 

impacts. Although we continue to 

believe that SCR is a cost-effective 

control and are not abandoning the legal 

and technical basis for our FIP, we 

believe that when cost, energy and nonair quality environmental impacts, and 

anticipated visibility benefits are all 

taken into consideration, New Mexico’s 

determination that the State Alternative 

is BART is reasonable. While SCR 

remains cost-effective on a $/ton basis, 

the incremental visibility benefit of the 

four-SCR scenario of the FIP over the 

State Alternative is small at most Class 

I areas, and New Mexico reasonably 

concluded that this small additional 

visibility benefit, when considered with 

the difference in the energy and non-air 

quality environmental impacts, did not 

justify the large increase in costs 

associated with the installation of SCR 

on all four units. 

Comment: One commenter stated that 

the visibility impacts of the State 

Alternative are significantly worse than 

the four-SCR scenario in the FIP. The 

commenter explained that the difference 

in visibility impacts between the two 

scenarios will be 0.47 dv at Mesa Verde, 

0.24 dv at Canyonlands, and 0.13 dv at 

Weminuche. The sum of these visibility 

differences is 0.84 dv, which is above 

the 0.5 dv threshold that is used to 

determine ‘‘significance.’’ Also, the 

State Alternative will result in five more 

days with impacts over 1 dv at Mesa 

Verde, three more days at Arches, and 

two more days at both Canyonlands and 

La Garita when compared to the fourSCR scenario in the FIP. 

Response: As we stated in the 

proposal when comparing the two 

scenarios, while we have some concern 

with the modeled visibility differences 

between the two control scenarios for 

Mesa Verde and Canyonlands, we find 

that the State’s decision to select the 

State Alternative was ultimately 

reasonable, especially considering the 

costs of compliance and the energy and 

non-air quality environmental impacts 

of the two scenarios. We noted that the 

difference in visibility impacts between 

the two scenarios are negligible at most 

of the Class I areas examined. The 

average difference at the 13 other Class 

I areas (other than Mesa Verde, 

Canyonlands, and Weminuche) is less 

than 0.1 dv between the two control 

scenarios. In considering the number of 

days impacted, eleven Class I areas 

show no difference in the number of 

days with impacts over 1 dv. We also 

note that the typical application of 0.5 

dv as a contribution threshold comes in 

the context of assessing impacts at a 

single Class I area, not cumulative 

impacts across multiple Class I areas. 

Comment: One commenter stated that 

the CAA requires EPA to either improve 

the State Alternative or reject it 

altogether. 

Response: We disagree with this 

comment. As we explained earlier, EPA 

is required to approve any SIP revision 

that meets CAA requirements. See CAA 

section 110(k)(3), (l). EPA does not have 

authority to improve a SIP revision that 

is otherwise approvable, and the 

commenter has provided no basis for 

EPA to disapprove the 2013 RH SIP 

revision. 

Comment: One commenter stated that 

EPA based its proposed approval on a 

fundamentally flawed cost-benefit 

analysis that artificially inflated the cost 

and artificially reduced the benefits of 

SCR. The commenter also thought that 

New Mexico underestimated the costs of 

SNCR. The commenter argued that EPA 

had no rational basis for concluding that 

cost refinements would not change the 

result. The commenter cited to Center 

for Biological Diversity v. National 

Highway Traffic Safety Administration, 

538 F.3d 1172, 1201–03 (9th Cir. 2008), 

for the proposition that EPA must recalculate a cost value that would 

significantly alter the analysis. With 

cost corrections, the commenter 

believed that New Mexico’s capital cost 

assumptions for SCR would be cut in 

half, demonstrating that SCR remains 

cost-effective at Units 1 and 4. The 

commenter provided an attachment that 

highlighted how New Mexico’s cost 

range for SCR at SJGS was well above 

the cost per kilowatt for SCR 

demonstrated by other cost studies for 

comparable retrofits. 

Response: We maintain our view that 

SCR has favorable and reasonable 

average cost-effectiveness values at SJGS 

under the technical record developed 

for the FIP, and we agree with the 

comment that New Mexico’s cost range 

for SCR is still high compared to other 

cost studies. Even so, as discussed in 

response to comments from PNM 

concerning cost, the state’s BART 

selection in this case is reasonable. New 

Mexico was advantaged with the full 

technical record that we developed to 

promulgate the FIP, and the state 

declared that it would favor the 2013 

RH SIP revision even if it were to adopt 

and utilize the lower costs for SCR that 

we had relied on in promulgating the 

FIP. In addition, in our proposed action, 

we recalculated the annual cost and 

incremental cost-effectiveness of the 

four-SCR option using the cost estimates 

presented in the FIP. Thus, there is a 

significant record basis for our finding 

that lower SCR costs would not change 

the result of our action. 

As to the state’s alleged 

underestimation of SNCR costs, the 

comment does not provide any details 

to enable us to provide a response. We 

also considered the Ninth Circuit’s 

decision in Center for Biological 

Diversity v. National Highway Traffic 

Safety Administration and do not see 

how it has any bearing on the issue of 

costs in this case. In that case, the Ninth 

Circuit faulted NHTSA for its failure to 

monetize the value of carbon emissions 

in setting fuel economy standards. In 

addition to the fact that the case did not 

concern BART determinations, the 

comment does not identify any 

particular line item in the state’s 

analysis of SCR costs that has not been 

monetized. 

Comment: One commenter stated that 

our proposal failed to consider the 

prospect of installing SCR on Units 1 

and 4, while still shutting down Units 

2 and 3. The commenter noted that such 

a scenario would lead to even greater 

visibility benefits. The commenter 

provided modeled visibility results and 

estimates of the level of emission 

reductions that would result from this 

scenario and concluded that the State 

Alternative was inferior. 

Response: While we acknowledge that 

a scenario at SJGS involving two 

shutdowns and two SCRs would result 

in superior visibility benefits than the 

State Alternative or even the FIP, the 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 60983 

5Appendix W to 40 CFR part 51 ‘‘Guideline to 

Air Quality Models’’ states: ‘‘It was concluded from 

these case studies that the CALPUFF dispersion 

model had performed in a reasonable manner, and 

had no apparent bias toward over or under 

prediction, so long as the transport distance was 

limited to less than 300 km.’’ 

6Environmental Protection Agency, 1998. 

Interagency Workgroup on Air Quality Modeling 

(IWAQM) Phase 2 Summary Report and 

Recommendations for Modeling Long-Range 

Transport Impacts. Publication No. EPA–454/R–98– 

019. Office of Air Quality Planning & Standards, 

Research Triangle Park, NC. (NTIS No. PB 99– 

121089) 

7Available as NMED Ex. 14 of the 2013 RH SIP 

revision. 

8Public Service Company of New Mexico, San 

Juan Generating Station, Revised SNCR Analysis, 

February 11, 2011 (2011 NM RH SIP, NMED Ex. 7t) 

state did not present this scenario to us 

in the 2013 RH SIP revision. As we 

explained above, we are required to 

evaluate the SIP revision that is before 

us. Moreover, in situations that involve 

the voluntary retirement of units, states 

need the flexibility to analyze control 

scenarios that have the support of the 

source owner. There is no evidence in 

the record indicating that PNM would 

have volunteered to retire two of its 

units if SCR were required on the 

remaining units. 

Comment: One commenter stated that 

the NMED’s BART analysis contains a 

flawed visibility analysis. The 

commenter argued that NMED 

arbitrarily ignored fourteen Class I areas 

between 300 km and 440 km from SJGS 

in its cumulative visibility analysis, 

which was an arbitrary and unexplained 

departure from EPA’s analytical 

approach that was followed in analyzing 

the Big Stone and Colstrip power plants. 

The commenter concluded that the 

failure to assess impacts at more distant 

Class I areas masked the full visibility 

benefit of SCR. Finally, the commenter 

referred to comments submitted by the 

National Park Service to New Mexico on 

their proposed SIP revision, which 

stated that the visibility modeling was 

not done according to the BART 

Guidelines. 

Response: We disagree with this 

comment. In regard to selecting a model 

and developing a modeling protocol, the 

BART Guidelines refer to our Guideline 

on Air Quality Models 5 and the 

Interagency Workgroup on Air Quality 

Modeling (IWAQM) Phase 2 report.6

The IWAQM report reviewed modelperformance evaluations of CALPUFF as 

a function of distance from the source 

and recommended the use of CALPUFF 

for transport distances of order 200 km 

and less. The report also recommended 

that the use of CALPUFF for 

characterizing transport beyond 200 to 

300 km should be done cautiously with 

an awareness of the likely problems 

involved. Consistent with this 

recommendation, we believe that it is 

reasonable to use CALPUFF to evaluate 

visibility impacts up to 300 km. While 

we agree with the commenter that 

emissions from SJGS may impact Class 

I areas at distances greater than 300 km, 

the IWAQM report cautions that 

CALPUFF results are less reliable at 

distances greater than 300 km. 

Therefore, we do not think that it is 

arbitrary to exclude more distant 

receptors from a visibility analysis or to 

base the visibility assessment for a 

BART determination on visibility 

impacts within 300 km from the source. 

Contrary to the commenter’s 

suggestion, this was the same approach 

followed when modeling the visibility 

benefits associated with various control 

scenarios at the Colstrip power plant. 

See 77 FR 57867–68. In regard to the Big 

Stone power plant, South Dakota 

performed modeling for Class I areas 

beyond 300 km only because there were 

no Class I areas within 300 km of the 

source. As a result, South Dakota 

worked with EPA to develop a special 

modeling protocol that incorporated 

CALPUFF’s puff-splitting option despite 

the IWAQM report’s conceptual 

concerns with that feature. Moreover, 

South Dakota expressly acknowledged 

that it was departing from EPA’s 

guidance. Consequently, we believe that 

Big Stone presented an exception to the 

general rule that CALPUFF be applied 

to assess visibility impacts only on 

those Class I areas within 300 km of the 

source. Finally, in regard to NPS’s 

comments concerning the visibility 

analysis during the state process, we 

agree with the response provided at the 

time by NMED 7 and note that NPS did 

not raise these concerns again in their 

comments on our proposed action. 

Comment: A commenter stated that 

the proposed 0.23 lb/MMBtu limit does 

not apply to each unit due to a crossunit averaging provision, so the 

emissions from a given unit could be 

higher than 0.23 lb/MMbtu. 

Response: In this case, it is 

appropriate for the 2013 RH SIP revision 

to allow SJGS to average emissions 

across its BART-eligible emission units 

within the fence line. The BART 

Guidelines allow this approach when, 

as here, the reductions would be equal 

to those reductions that would be 

obtained by simply controlling each of 

the BART-eligible units that constitute 

the BART source. Because SJGS is 

required to demonstrate continuous 

compliance over a reasonable averaging 

time, the reductions associated with the 

assigned limit are assured. As part of its 

five-factor analysis, New Mexico 

evaluated the control effectiveness of 

SNCR and determined that SNCR could 

achieve an emission rate of 0.23 lb/

MMBtu on each unit based on tests and 

an updated performance guarantee from 

the vendor.8 Consistent with the BART 

Guidelines, the permit conditions at 

A112C specify the averaging time and 

calculation methodology for the 

enforceable emission limit, which must 

be calculated on a 30-boiler-operatingday basis, averaged across the two units. 

While we agree with the commenter that 

emissions from either unit may exceed 

0.23 lb/MMBtu on a given day, the 

combined emissions from both units 

cannot exceed 0.23 lb/MMBtu over the 

course of the averaging period, so total 

emission reductions will be equal to 

those that would be obtained under two 

separate limits. 

Comment: One commenter alleged 

that our proposal implied that PNM’s 

decision to retire Units 2 and 3 was 

solely taken for the purpose of meeting 

BART. The commenter suggested that 

EPA should explicitly state whether this 

was the case for the record or discuss 

whether independent reasons would 

require or motivate the shutdown of the 

units. 

Response: We fail to see how this 

comment is relevant to our evaluation of 

the 2013 RH SIP revision. Nevertheless, 

we note that, when developing the FIP, 

we assumed that the remaining useful 

life of all four units at SJGS exceeded 30 

years, and the 2013 RH SIP revision 

provides no information that would 

change that assumption. Nor does the 

SIP revision provide any information to 

suggest that PNM had motivations other 

than creating a more cost-effective 

BART-compliance scenario when 

volunteering to shut down Units 2 and 

3. 

Comment: A commenter stated that, 

while our proposal implied that there 

will be no capacity increase elsewhere 

or at the SJGS to replace the lost 

capacity from Units 2 and 3, the final 

rule should make this explicit to 

properly give weight to the benefits 

from their retirement. 

Response: We disagree with this 

comment. As an initial matter, our 

proposal did not imply that the 

retirement of Units 2 and 3 could be 

undertaken without the possible need to 

address lost capacity. Most likely, the 

lost capacity will be replaced through 

some combination of conservation, 

efficiency, and new capacity. More 

importantly, however, the CAA does not 

require an analysis of the statutory 

factors to include the consideration of 

hypothetical emissions increases at 


tkelley on DSK3SPTVN1PROD with RULES
60984 Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 

other facilities or even at the same 

facility due to lost capacity. We also 

note that any emissions units that might 

be constructed at SJGS in the future 

would likely be subject to both BACT 

and any applicable new source 

performance standards. Moreover, all 

emission units would be subject to 

analysis under the regional haze 

requirements for reasonable progress in 

future planning periods. 

Comment: One commenter asserted 

that our proposal failed to explain how 

New Mexico could permissibly reach a 

conclusion that directly opposes EPA’s 

conclusion in the FIP. The commenter 

stated that the voluntary retirement of 

Units 2 and 3 did not change the fact 

that SCR remains cost-effective at the 

Units 1 and 4. 

Response: We disagree that the 2013 

RH SIP reached a conclusion that 

directly opposes the conclusion we 

made in promulgating the FIP. Under 

different factual circumstances, we 

determined that SCR for the four SJGS 

units had reasonable average costeffectiveness values and would promote 

significant visibility improvements, 

thereby supporting the basis for the 

emission limits set forth in the FIP. As 

we stated in the proposal, the 2013 RH 

SIP revision contains a new, sourcespecific BART analysis that is based on 

different underlying facts than those 

that were present when we evaluated 

our FIP. We were not presented with the 

retirement of Units 2 and 3 when we 

promulgated the FIP. With this 

information in hand, New Mexico 

permissibly conducted a new BART 

analysis using a facility-wide approach 

that allowed the full range of visibility, 

energy, and non-air quality 

environmental benefits associated with 

the shutdowns to be taken into account. 

While the average cost-effectiveness of 

SCR on Units 1 and 4 remains 

reasonable, New Mexico demonstrated 

that the incremental cost-effectiveness 

of the four-SCR scenario in our FIP over 

the State Alternative was high when 

compared against the additional 

visibility improvements from the 

former, while also considering the 

energy, and non-air quality 

environmental benefits associated with 

the State Alternative. 

Comment: One commenter thought 

that the timeline for the installation of 

SNCR was too long because SNCR is a 

simpler technology to install than SCR. 

Response: We agree that SNCR is a 

simpler technology to install than SCR 

and requires less time for installation. 

New Mexico determined, and we agree, 

that the compliance timeframe in the 

2013 RH SIP revision is as expeditious 

as practicable, as required under 40 CFR 

51.308(e)(1)(iv). 

Comment: One commenter thought 

that the 0.05 lb/MMBtu rate used for the 

study of SCR as a BART control option 

was likely too high. The commenter 

suggested that many units, such as those 

in Dry Fork, WY and Morgantown, MD, 

are routinely achieving emission rates in 

the range of 0.02–0.04 lb/MMBtu. 

Reducing the studied emission limit for 

SCR to 0.04 lb/MMBtu would show the 

option to be even more cost-effective. 

Response: We disagree that lower 

control rates needed to be evaluated for 

SCR. We evaluated the monthly 

emission data from these two facilities 

for the past several years (available at 

EPA’s Air Market Program data Web 

site: www.epa.gov/ampd). All three 

units have monthly emission rates that 

sometimes exceed 0.04 lb/MMBtu. 

Indeed, the Morgantown units have 

months where the monthly emission 

rate is 0.05 lb/MMBtu or higher. In 

promulgating the FIP, we evaluated the 

performance of both new and retrofit 

SCRs and determined that 0.05 lb/

MMBtu on a 30-boiler-operating-day 

average was the appropriate emission 

limit for SCR at the SJGS units. See 76 

FR 491 and 76 FR 52388. New Mexico 

appropriately used this same rate in 

their cost and visibility analyses for the 

four-SCR scenario as part of its BART 

evaluation. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This type of action is exempt from 

review under Executive Orders 12866 

(58 FR 51735, October 4, 1993) and 

13563 (76 FR 3821, January 21, 2011). 

B. Paperwork Reduction Act 

This FIP withdrawal action does not 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. because this FIP 

amendment under section 110 and part 

C of the Clean Air Act will not in-andof itself create any new information 

collection burdens. Because this final 

action does not impose an information 

collection burden, the Paperwork 

Reduction Act does not apply. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

This rule withdraws the FIP for 

PNM’s San Juan Generating Station, 

which is not a small entity, and does not 

create any new requirements. After 

considering the economic impact of this 

rule on small entities, I certify that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. This final rule 

will not impose any requirements on 

small entities. 

D. Unfunded Mandates Reform Act 

This FIP withdrawal action contains 

no Federal mandates under the 

provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

2 U.S.C. 1531–1538 for State, local, or 

tribal governments or the private sector. 

This action imposes no enforceable duty 

on any State, local or tribal governments 

or the private sector. Therefore, this 

action is not subject to the requirements 

of sections 202 or 205 of the UMRA. 

This FIP withdrawal action is also not 

subject to the requirements of section 

203 of UMRA because it contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. This action removes a 

Federal plan for PNM’s San Juan 

Generating Station. Small governments 

are not impacted. 

E. Executive Order 13132—Federalism 

This FIP withdrawal action does not 

have federalism implications. It will not 

have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The CAA 

establishes the scheme whereby states 

take the lead in developing SIPs 

including SIPs to attain the NAAQS and 

to meet other applicable CAA 

requirements including the Best 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 60985 

Available Retrofit requirements in CAA 

section 169(b)(2)(A) and the Visibility 

Impairment requirements in CAA 

section 110(a)(2)(D)(i)(II). This action 

will not modify this relationship. Thus, 

Executive Order 13132 does not apply 

to this action. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This FIP withdrawal action does not 

have tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). In this action, EPA 

is not addressing any Tribal 

Implementation Plans. This action is 

limited to the withdrawal of the New 

Mexico RH and IT FIP for PNM’s San 

Juan Generating Station. Thus, 

Executive Order 13175 does not apply 

to this action. Consistent with EPA 

policy, EPA offered consultation to 

tribes regarding this rulemaking action. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the executive 

order has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because EPA in withdrawing 

the New Mexico RH and IT FIP for 

PNM’s San Juan Generating Station, as 

authorized by the CAA, EPA considers 

visibility and not health or safety risks. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This FIP withdrawal action is not 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001) because it is 

exempt from review under Executive 

Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104— 

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. This FIP 

withdrawal action for PNM’s San Juan 

Generating Station does not involve 

technical standards. Therefore, EPA did 

not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This final rule does not provide EPA 

with the discretionary authority to 

address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898 (59 FR 7629, 

February 16, 1994). 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 8, 

2014. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Regional haze, Reporting and 

recordkeeping requirements, Sulfur 

dioxide, and Visibility. 

Dated: September 26, 2014. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, Title 40, chapter I, of the 

Code of Federal Regulations is amended 

as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

§ 52.1628 [Removed and Reserved] 

■ 2. Section 52.1628 is removed and 

reserved. 

[FR Doc. 2014–23905 Filed 10–8–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2014–0214; FRL–9917–63– 

Region 6] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Regional Haze and Interstate Transport 

Affecting Visibility State 

Implementation Plan Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action 

under the Clean Air Act (CAA) to 

approve a revision to the New Mexico 

Regional Haze State Implementation 

Plan (SIP) that addresses the Best 

Available Retrofit Technology (BART) 

requirement for oxides of nitrogen 

(NOX) for the Public Service Company 

of New Mexico (PNM) San Juan 

Generating Station (SJGS) in San Juan 

County, New Mexico. EPA is also taking 

final action under the CAA to approve 

a revision to the New Mexico Visibility 

Transport SIP that addresses the CAA 

requirement that emissions from sources 

in New Mexico do not interfere with 

programs in other states to protect 

visibility. The SIP meets this 

requirement through emission 

limitations for NOX and sulfur dioxide 

(SO2) at SJGS. 

DATES: This final rule will be effective 

November 10, 2014. 


tkelley on DSK3SPTVN1PROD with RULES