Vol. 77 Friday, 

No. 165 August 24, 2012 

Part II 

Environmental Protection Agency 

40 CFR Part 49 

Source Specific Federal Implementation Plan for Implementing Best 

Available Retrofit Technology for Four Corners Power Plant: Navajo Nation; 

Final Rule 


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51620 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

1Arizona Public Service is currently seeking 

regulatory approvals to purchase Southern 

California Edison’s share of Units 4 and 5. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R09–OAR–2010–0683; FRL–9715–9] 

Source Specific Federal 

Implementation Plan for Implementing 

Best Available Retrofit Technology for 

Four Corners Power Plant: Navajo 

Nation 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is promulgating a sourcespecific Federal Implementation Plan 

(FIP) requiring the Four Corners Power 

Plant (FCPP), a coal-fired power plant 

located on the Navajo Nation near 

Farmington, New Mexico, to achieve 

emissions reductions required by the 

Clean Air Act’s (CAA) Best Available 

Retrofit Technology (BART) provision. 

In this final action, EPA is requiring 

FCPP to reduce emissions of oxides of 

nitrogen (NOX) and is setting emission 

limits for particulate matter (PM) based 

on emission rates already achieved at 

FCPP. These pollutants contribute to 

visibility impairment in the numerous 

mandatory Class I Federal areas 

surrounding FCPP. For NOX emissions, 

EPA is requiring FCPP to meet a plantwide emission limit of 0.11 lb/MMBtu 

on a rolling 30-day heat input-weighted 

average. This represents an 80 percent 

reduction from the current NOX

emission rate and is expected to provide 

significant improvement in visibility. 

EPA is also finalizing an alternative 

emission control strategy that gives the 

owners of FCPP the option to close 

Units 1–3 and install controls on Units 

4 and 5 to each meet an emission limit 

of 0.098 lb/MMBtu, based on a rolling 

average of 30 successive boiler operating 

days. For PM, EPA is requiring Units 4 

and 5 at FCPP to meet an emission limit 

of 0.015 lb/MMBtu, and retaining the 

existing 20 percent opacity limit. These 

PM limits are achievable through the 

proper operation of the existing 

baghouses. EPA is also requiring FCPP 

to comply with a 20 percent opacity 

limit on its coal and material handling 

operations. 

DATES: Effective Date: This rule is 

effective on October 23, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Anita Lee, EPA Region 9, (415) 972– 

3958, r9air_fcppbart@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA has 

established a docket for this action 

under Docket ID No. EPA–R09–OAR– 

2010–0683. The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region 9, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g. copyrighted material), and 

some may not be publicly available in 

either location (e.g. Confidential 

Business Information (CBI)). To inspect 

the hard copy materials, please schedule 

an appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

A reasonable fee may be charged for 

copies. 

Throughout this document, ‘‘we’’, 

‘‘us’’, and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background of the Final Rule 

II. Summary of Final Federal Implementation 

Plan (FIP) Provisions 

III. Analysis of Major Issues Raised by 

Commenters 

A. Comments on Factor One—Cost of 

Controls 

1. Comments on the Analysis of the Cost 

of SCR at FCPP 

2. Comments on Top-Down Analysis 

Versus Incremental Cost Effectiveness 

B. Comments on Factor Two—Economic, 

Energy, and Non-Air Quality 

Environmental Impacts 

1. Comments on Economic Impacts 

a. General Comments on Economic Impacts 

b. Comments on EPA’s Economic Analysis 

2. Comments on Energy and Non-Air 

Quality Environmental Impacts 

C. Comments on Factor Three—Existing 

Controls at FCPP 

D. Comments on Factor Four—Remaining 

Useful Life at FCPP 

E. Comments on Factor Five—Anticipated 

Visibility Improvements 

F. Comments on BART Determinations 

1. Comments on the Proposed BART 

Determination for NOX

2. Comments on the Proposed BART 

Determination for PM 

3. Comments on BART for SO2

4. Other Comments on BART 

G. Comments on Arizona Public Service’s 

Alternative and EPA’s Supplemental 

Proposal 

H. Other Comments 

IV. Administrative Requirements 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Petitions for Judicial Review 

I. Background of the Final Rule 

FCPP is a privately owned and 

operated coal-fired power plant located 

on the Navajo Nation Indian Reservation 

near Farmington, New Mexico. Based on 

lease agreements signed in 1960, FCPP 

was constructed and has been operating 

on real property held in trust by the 

Federal government for the Navajo 

Nation. The facility consists of five coalfired electric utility steam generating 

units with a total capacity of 2060 

megawatts (MW). Units 1, 2, and 3 at 

FCPP are owned entirely by Arizona 

Public Service (APS) which serves as 

the facility operator, and are rated to 

170 MW (Units 1 and 2) and 220 MW 

(Unit 3). Units 4 and 5 are each rated to 

a capacity of 750 MW, and are co-owned 

by six entities: Southern California 

Edison 1 (48 percent), APS (15 percent), 

Public Service Company of New Mexico 

(13 percent), Salt River Project (SRP) (10 

percent), El Paso Electric Company (7 

percent), and Tucson Electric Power (7 

percent). 

EPA’s proposed BART determination 

for FCPP, published on October 19, 

2010, provided a thorough discussion of 

the statutory and regulatory framework 

for addressing visibility through 

application of BART for sources located 

in Indian country, and of the factual 

background for BART determinations at 

FCPP. 75 FR 64221. 

On February 25, 2011, as a result of 

additional information provided by 

stakeholders, EPA published a 

Supplemental Proposal. FR 76 10530. 

We briefly summarize the provisions of 

our Proposal and our Supplemental 

Proposal below. 

Part C Subpart II of the 1977 CAA 

establishes a visibility protection 

program that sets forth ‘‘as a national 

goal the prevention of any future, and 

the remedying of any existing, 

impairment of visibility in mandatory 

class I Federal areas which impairment 

results from manmade air pollution.’’ 42 

U.S.C. 7491A(a)(1). EPA promulgated 

regional haze regulations on April 22, 

1999. 64 FR 35765. Consistent with the 

statutory requirement in 42 U.S.C. 

7491(b)(2)(a), EPA’s 1999 regional haze 


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regulations include a provision 

requiring States to require certain major 

stationary sources to procure, install 

and operate BART. This provision 

covers sources ‘‘in existence on August 

7, 1977, but which ha[ve] not been in 

operation for more than fifteen years as 

of such date’’ and which emit pollutants 

that are reasonably anticipated to cause 

or contribute to any visibility 

impairment. EPA has determined that 

FCPP is a BART-eligible source (75 FR 

64221). 

In determining BART, States are 

required to take into account five factors 

identified in the CAA and EPA’s 

regulations. 42 U.S.C. 7491(g)(2) and 40 

CFR 51.308. Those factors are: (1) The 

costs of compliance, (2) the energy and 

non-air quality environmental impacts 

of compliance, (3) any pollution control 

equipment in use or in existence 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. 40 CFR 

51.308(e)(1)(ii)(A). EPA’s guidelines for 

evaluating BART are set forth in 

Appendix Y to 40 CFR Part 51. 

In 1998, EPA promulgated the Tribal 

Authority Rule (TAR) relating to 

implementation of CAA programs in 

Indian country. See 40 CFR part 49; see 

also 59 FR 43956 (Aug. 25, 1994) 

(proposed rule); 63 FR 7254 (Feb. 12, 

1998) (final rule); Arizona Public 

Service Company v. EPA, 211 F.3d 1280 

(DC Cir. 2000), cert. den., 532 U.S. 970 

(2001) (upholding the TAR). 

In the TAR, EPA determined that it 

has the discretionary authority to 

promulgate ‘‘such federal 

implementation plan provisions as are 

necessary or appropriate to protect air 

quality’’ consistent with CAA sections 

301(a) and 301(d)(4) when a Tribe has 

not submitted or EPA has not approved 

a Tribal Implementation Plan (TIP). 40 

CFR 49.11(a). 

EPA has previously promulgated FIPs 

under the TAR to regulate air pollutants 

emitted from FCPP. In 1999, EPA 

proposed a FIP for FCPP. That FIP 

proposed to fill the regulatory gap that 

existed because New Mexico permits 

and State Implementation Plan (SIP) 

rules are not applicable or enforceable 

in the Navajo Nation, and the Tribe had 

not sought approval of a TIP covering 

the plant. 64 FR 48731 (Sept. 8, 1999). 

Before EPA finalized the 1999 FIP, the 

operator of FCPP began negotiations to 

reduce SO2 emissions from FCPP by 

making upgrades to improve the 

efficiency of its SO2 scrubbers. The 

parties to the negotiations requested 

EPA to make those SO2 reductions 

enforceable through a source-specific 

FIP. Therefore, EPA proposed a new FIP 

for FCPP in September 2006. 71 FR 

53631 (Sept. 12, 2006). In the final FIP, 

EPA indicated that the new SO2

emissions limits were close to or the 

equivalent of the emissions reductions 

that would have been required in a 

BART determination. 72 FR 25698 (May 

7, 2007). The FIP also required FCPP to 

comply with a 20 percent opacity limit 

on both the combustion and fugitive 

dust emissions from material handling 

operations. 

APS, the operator of FCPP, and Sierra 

Club each filed Petitions seeking 

judicial review of EPA’s promulgation 

of the 2007 FIP for FCPP on separate 

grounds. The Court of Appeals for the 

Tenth Circuit rejected both Petitions. 

The Court agreed with EPA’s request for 

a voluntary remand of a single narrow 

aspect of the 2007 FIP: The opacity limit 

for the fugitive dust for the material 

handling operations. Id. At 1131. 

On October 19, 2010 (75 FR 64221) 

EPA proposed a second FIP under 40 

CFR 49.11(a) finding it is necessary or 

appropriate to establish BART 

requirements for NOX and PM emissions 

from FCPP, and proposed specific NOX

and PM limits as BART. For NOX, EPA 

proposed a plant-wide emission limit of 

0.11 lb/MMBtu, representing an 80 

percent reduction from current NOX

emission rates, achievable by installing 

and operating SCR technology on Units 

1–5. For PM, EPA proposed an emission 

limit of 0.012 lb/MMBtu for Units 1–3 

and 0.015 lb/MMBtu for Units 4 and 5 

achievable by installing and operating 

any of several equivalent controls on 

Units 1–3, and through proper operation 

of the existing baghouses on Units 4 and 

5. EPA also proposed a 10 percent 

opacity limit from Units 1–5 and a 20 

percent opacity limit to apply to FCPP’s 

material handling operations to respond 

to the voluntary remand EPA took on 

this issue from the 2007 FIP. 

On November 24, 2010, APS, acting 

on behalf of FCPP’s owners, submitted 

a letter to EPA offering an alternative to 

reduce visibility-impairing pollution. 

APS proposed to close Units 1–3 by 

2014 and install and operate SCR on 

Units 4 and 5 to each meet an emission 

limit of 0.11 lb/MMBtu by the end of 

2018. On February 25, 2011, we 

published a Supplemental Proposal (76 

FR 10530) with a technical evaluation of 

APS’ alternative. Our Supplemental 

Proposal also provides a detailed 

summary of the legal background for 

proposing an alternative emission 

control strategy as achieving better 

progress towards the national visibility 

goal (76 FR 10530). 

In our Supplemental Proposal, EPA 

proposed to allow APS the option to 

comply with the alternative emission 

control strategy in lieu of complying 

with our October 19, 2010, proposed 

BART determination. EPA’s alternative 

emission control strategy involved 

closure of Units 1–3 by 2014 and 

installation and operation of add-on 

post combustion controls on Units 4 and 

5 to each meet a NOX emission limit of 

0.098 lb/MMBtu by July 31, 2018. EPA 

proposed that this alternative emission 

control strategy represents reasonable 

progress towards the national visibility 

goal, under CAA Section 169A(b)(2), 

because it would result in greater 

visibility improvement in surrounding 

Class I areas at a lower cost than our 

October 19, 2010, BART proposal. The 

proposal to require PM and opacity 

limits on Units 1–5, as well as 20 

percent opacity limits for controlling 

dust from coal and ash handling and 

storage facilities, was unchanged. 

II. Summary of Final FIP Provisions 

EPA is finding today that it is 

necessary or appropriate to promulgate 

a source-specific FIP requiring FCPP to 

achieve emissions reductions required 

by the CAA’s BART provision. 

Specifically, EPA is requiring FCPP to 

meet new emissions limits for NOX and 

PM. These pollutants contribute to 

visibility impairment in the 16 

mandatory Class I Federal areas 

surrounding FCPP. For NOX emissions, 

EPA is finalizing a BART determination 

as well as an optional alternative to 

BART. FCPP can choose which 

emissions control strategy to follow and 

must notify EPA of its choice by July 1, 

2013. Our final BART determination 

requires FCPP to meet a plant-wide heat 

input-weighted emission limit of 0.11 

lb/MMBtu on a rolling 30-calendar day 

average which represents an 80 percent 

reduction from current NOX emission 

rates. This NOX limit is achievable by 

installing and operating add-on postcombustion controls on Units 1–5. 

Installation and operation of the new 

NOX controls on one 750 MW unit must 

be within 4 years of October 23, 2012. 

NOX controls on the remaining units 

must be installed and operated within 5 

years of October 23, 2012. 

Alternatively, FCPP may choose to 

comply with an alternative emission 

control strategy for NOX in lieu of 

complying with EPA’s final BART 

determination for NOX. This alternative 

emission control strategy requires 

permanent closure of Units 1–3 by 

January 1, 2014, and installation and 

operation of add-on post combustion 

controls on Units 4 and 5 to meet a NOX

emission limit of 0.098 lb/MMBtu each, 

based on a rolling average of 30 


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2We proposed to require phased installation of 

add-on NOX controls on at least 560 MW of 

generation within 3 years of the effective date of the 

final rule, on at least 1310 MW of generation within 

4 years of the effective date, and plant-wide within 

5 years of the effective date. 

3We are finalizing the rule to require phased 

installation of add-on NOX controls on at least 750 

MW of generation within 4 years of the effective 

date and on the remaining units within 5 years of 

the effective date. 

4Notices of scheduled public hearings were 

published in the Farmington Daily Times and the 

Durango Herald on November 3, 2010 and February 

17, 2011, and the Navajo Times on November 4, 

2010 and February 17, 2011. Notices of the 

extended public comment period and 

postponement of the December public hearings 

were published in the Farmington Daily Times and 

the Durango Herald on November 24, 2010 and in 

the Navajo Times on December 2, 2010. 

5The OAQPS Control Cost Manual is now called 

the EPA Control Cost Manual. The EPA Control 

Cost Manual is available from the following Web 

site: http://www.epa.gov/ttncatc1/ 

products.html#cccinfo. 

successive boiler operating days, by July 

31, 2018. 

For PM, EPA is requiring Units 4 and 

5 to meet a BART emission limit of 

0.015 lb/MMBtu within 60 days after 

restart following the scheduled major 

outages for Units 4 and 5 in 2013 and 

2014. This emission limit is achievable 

through the proper operation of the 

existing baghouses. EPA is determining 

that it is not necessary or appropriate to 

finalize our proposed PM BART 

determination for Units 1–3 or our 

proposed opacity limit of 10 percent on 

Units 1–5. FCPP must continue to meet 

the existing 20 percent opacity limit on 

Units 1–5. 

To address our voluntary remand of 

the material handling requirements from 

the 2007 FIP, EPA is finalizing our 

proposal to require FCPP to comply 

with a 20 percent opacity limit on its 

material handling operations, including 

coal handling. 

In our final rule, EPA has made 

several revisions to the proposed rule 

and Supplemental Proposal based on 

comments we received during the 

public comment period. These revisions 

include: revising the compliance date 

under BART from within 3 to 5 years 2

of the effective date of the final rule to 

within 4 to 5 years 3 of the effective date; 

revising the interim limits to only 

include an interim limit for one 750 

MW unit rather than all units to match 

the revised compliance timeframes; 

adding 6 months to the notification 

dates to EPA on APS’s plans to 

implement BART or the BART 

Alternative; revising the averaging time 

for the NOX limit under the BART 

Alternative from a 30-day average to a 

rolling average of 30 successive boiler 

operating days; retaining the existing 

opacity limit of 20 percent instead of 

setting a new 10 percent opacity limit 

on Units 1–5; determining that it is not 

necessary or appropriate at this time to 

finalize a BART determination for PM 

for Units 1–3; and revising the effective 

date of the PM emission limit for Units 

4 and 5 to the next schedule major 

outage rather than following installation 

of new post-combustion NOX controls. 

We include the rationale for these 

revisions in our responses to comments. 

All comments we received are included 

in the docket and EPA has summarized 

and responded to all comments in a 

separate Response to Comments (RTC) 

document that is also included in the 

docket for this final rulemaking. In this 

Federal Register notice, EPA is 

including a summary of the major 

comments we received and a summary 

of our responses. 

III. Summary of Major Issues Raised by 

Commenters 

Our October 19, 2010, proposal 

included a 60-day public comment 

period that ended on December 20, 

2010. On November 12, 2010, EPA 

published a notice of public hearings to 

be held in the Four Corners area on 

December 7–9, 2010 (75 FR 69374). On 

December 8, 2010, EPA published in the 

Federal Register a notice that EPA 

received an alternative proposal from 

APS and would be extending the public 

comment period to March 18, 2011, and 

postponing the previously scheduled 

public hearings in order to evaluate that 

alternative proposal (75 FR 76331). 

Notices of public hearings and 

rescheduled hearings were published in 

three newspapers near the Four Corners 

Power Plant 4. Our supplemental 

proposal on February 25, 2011, 

subsequently extended the public 

comment period until May 2, 2011, and 

announced four public hearings on the 

proposed BART determination and 

supplemental proposal in the Four 

Corners area on March 29, 30, and 31, 

2011. In all, 90 oral testimonies were 

presented at the public hearings. 

We received nearly 13,000 written 

comments. Of these, over 12,800 

comments came from private citizens 

who submitted substantially similar 

comments. We received an additional 

110 unique written comments (not 

including duplicates, requests for 

extension of the public comment period, 

or requests for additional hearings). We 

do not consider or address letters or 

comments unrelated to the rulemaking 

in this notice or in our response to 

comments document. The unique 

comments can be broken down by 

general type as follows: 78 from private 

citizens, eight from environmental 

advocacy groups, four from the owners 

of FCPP, five from state/local 

government entities, four from public 

interest advocacy groups, two from 

tribes, four from utility industry 

associations, three from federal 

agencies, one from a U.S. Senator, and 

one from the operator of the Navajo 

Mine. 

A. Comments on Factor One—Cost of 

Controls 

We received a number of comments 

on our approach for estimating the cost 

of SCR at FCCP, the incremental cost 

effectiveness of controls, and on our 

top-down approach for evaluating 

controls. 

1. Comments on the Analysis of the Cost 

of SCR at FCPP 

Comment: Some of the owners of 

FCPP and a utility industry association 

stated that in analyzing the cost of SCR 

at FCPP, EPA improperly reworked and 

reduced the SCR cost estimates 

submitted for FCPP by eliminating line 

item costs that are not explicitly 

included in the EPA Control Cost 

Manual (citing 75 FR 64227). 

Commenters noted that APS’ estimate 

was prepared by B&V, an engineering 

firm with extensive experience with the 

installation and operation of pollution 

control equipment and that the prices 

used in the cost analysis were based on 

quotes from equipment vendors that 

reflected current pricing. 

Response: EPA disagrees with the 

comment that EPA improperly reworked 

and reduced the SCR cost estimates. 

EPA used a hybrid approach for our cost 

analysis that relied primarily on the 

highest of several cost estimates 

provided by APS, but also followed the 

BART Guidelines that state ‘‘[i]n order 

to maintain and improve consistency, 

cost estimates should be based on the 

OAQPS Control Cost Manual, where 

possible’’,5 to determine whether APS 

included cost estimates for services or 

equipment associated with SCR that 

were either not needed (e.g., mitigation 

for increased sulfuric acid emissions or 

catalyst disposal), or not allowed under 

the EPA Control Cost Manual (e.g., legal 

fees). 

Our cost analysis relied primarily on 

the highest cost estimates submitted by 

APS. EPA accepted all site-specific costs 

provided by APS for cost categories 

(e.g., purchased equipment, installation) 

that are typically included in a cost 

estimate conducted in accordance with 

the EPA Control Cost Manual, and only 

excluded line item costs that are not 

explicitly included in the EPA Control 

Cost Manual or in a limited number of 

cases where EPA determined alternative 


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6See ‘‘TSD Proposal—Technical Support 

Document 10–6–10’’, Document No. EPA–R09– 

OAR–2010–0683–0002. 

7See ‘‘TSD ref [40] Four Corners SCR Cost 

Analysis (EPA) 8–26–10’’, Document No. EPA–R09– 

OAR–2010–0683–0033. 

8 In the 2005 BART presumptive limit analysis, 

EPA estimated capital costs at all facilities 

nationwide assuming that SCR costs were $100/kW, 

and then scaling by the size of the facility (kW). 

9The 2005 BART guidelines estimated SCR 

capital costs at FCPP to be $64 million and total 

annual costs to be $11 million. Cost effectiveness 

calculations rely on total annual costs and annual 

NOX reductions from the control technology. 

10 In the ANPRM, in addition to reporting APS’ 

cost estimates and EPA’s revisions to APS’ cost 

estimates, for reference, EPA also reported cost 

estimates developed by NPS using the EPA Control 

Cost Manual and provided to EPA during 

consultations with the FLMs prior to our ANPRM. 

NPS estimated SCR capital costs to be $53 million 

and total annual costs to be $10 million. See Table 

9 in the October 2010 TSD for the proposed BART 

determination for FCPP. In its comments on the 

ANPR, NPS revised its cost estimates for SCR on 

Units 4 and 5 to $114 million (capital cost) and $18 

million (total annual cost)—see Table 12 in the TSD 

for the proposed BART determination. 

11APS and other entities provided comments to 

EPA on the NPS cost estimates reported in the 

ANPRM, see document titled ‘‘Comments on 

ANPRM 09 0598 APS Comments and Exhibits’’ 

document ID number EPA–R09–OAR–2009–0598– 

0195. 12 70 FR 39167. 

costs were more appropriate (e.g., costs 

of catalysts, interest rates). We note that 

EPA’s cost estimate presented in the 

Technical Support Document (TSD)6

($718 million total for Units 1–5) is only 

18 percent lower than the highest B&V 

cost estimate and less than 0.6 percent 

lower than the lowest and most recent 

B&V cost estimate. 

Our detailed, line-by-line analysis 7

was included in the docket for our 

proposed rulemaking and provided an 

explanation for why we retained, 

modified, or rejected each line item in 

the SCR cost estimate for each of the 

five units at FCPP. 

Comment: One of the owners of FCPP 

asserted that EPA’s estimate of the 

average cost effectiveness of SCR at 

FCPP is significantly higher than the 

level ($1,600 per ton of NOX removed) 

that EPA determined was not cost 

effective in the 2005 BART rules for 

presumptive BART limits. The 

commenter asserted that there is no 

basis for EPA to depart from its own 

rules by concluding that SCR is BART 

for FCPP when this technology is many 

times more expensive than the costs 

EPA rejected as presumptive BART in 

the 2005 BART rules. The commenter 

noted that its cost analysis estimated 

that the average cost effectiveness of 

combustion controls for the five units at 

FCPP would range from $524 to $1,735 

per ton of NOX removed, while the 

average cost effectiveness of SCR would 

range from $4,215 to $5,283 per ton. The 

commenter also noted that EPA’s 

estimate of average cost effectiveness for 

SCR at FCPP ranged from $2,515 to 

$3,163 per ton. The commenter stated 

that, at the low end, only the estimate 

of the average cost effectiveness of 

combustion controls is in line with 

EPA’s estimates of cost-effective 

controls for presumptive BART limits, 

while the estimate of average cost 

effectiveness of SCR is significantly 

higher. 

Response: EPA disagrees with this 

comment. Although the commenters 

argue that the BART guidelines 

established a threshold for cost 

effectiveness against which future BART 

determinations must be compared, the 

BART Guidelines did not establish a 

cost effectiveness threshold for all 

BART determinations. In developing the 

presumptive NOX limits for BART in 

2005, EPA did not set the cost 

effectiveness values estimated for 

combustion controls as the threshold for 

determining whether a given control 

technology was or was not cost 

effective. The BART Guidelines do not 

set a numerical definition for ‘‘cost 

effective’’, and the analysis of 

presumptive limits uses cost 

effectiveness as a means to broadly 

compare control technologies, not as 

threshold for rejecting controls for an 

individual unit or facility that exceed 

the average cost effectiveness of 

combustion controls. 

Additionally, a comparison of the 

average cost effectiveness estimates in 

the 2005 BART guidelines against EPA’s 

cost effectiveness estimates in 2010 for 

FCPP is not an ‘‘apples to apples’’ 

comparison. The technical support 

documentation for the 2005 BART 

guidelines indicate that cost 

effectiveness of controls was not 

determined based on site-specific cost 

estimates developed for each BARTeligible facility; rather, cost estimates for 

existing facilities were determined using 

assumptions for capital and annual 

costs per kilowatt (kW) 8 or kilowatthour (kW-hr), and then scaled according 

to boiler size at the existing facilities. 

The supporting information for the 2005 

BART Guidelines estimated SCR costs 9

for FCPP Units 4 and 5 that are 

comparable to SCR cost estimates 

generated by the National Park Service 

(NPS) in 2009 using the EPA Control 

Cost Manual.10 The same commenters 

have previously dismissed the NPS SCR 

cost estimates based on the EPA Control 

Cost Manual because it does not include 

site-specific costs.11 In short, the 

commenter’s recommendation to use 

generalized cost estimates from the 2005 

BART Guidelines as a bright line 

threshold for comparison with sitespecific 2010 cost estimates is 

inconsistent with its own criticisms of 

the EPA Control Cost Manual. 

In determining that a different level of 

control than the presumptive limit was 

warranted as BART for FCPP, EPA 

evaluated the five statutory factors in 

our assessment for FCPP. This 

evaluation was detailed in the Technical 

Support Document for our proposed 

BART determination and included an 

analysis of cost effectiveness, energy 

and non-air quality impacts of controls, 

existing controls at the facility, the 

remaining useful life of the facility, and 

the visibility improvement reasonably 

anticipated to result from controls. 

Therefore, EPA has not improperly 

disregarded the BART guidelines in our 

analysis for FCPP. 

Comment: A number of commenters 

stated that EPA’s BART analysis for 

FCPP was inconsistent with its own 

regulations in that it failed to consider 

control costs as a function of visibility 

improvement. These commenters 

typically stated that EPA’s BART 

determination for FCPP must consider 

the cost effectiveness of control 

technology options in terms of dollars 

per deciview-improved. 

Response: The BART Guidelines 

require that cost effectiveness be 

calculated in terms of annualized 

dollars per ton of pollutant removed, or 

$/ton.12 The commenters are correct in 

that the BART Guidelines list the $/ 

deciview ratio as an additional cost 

effectiveness metric that can be 

employed along with $/ton for use in a 

BART evaluation. However, the use of 

this metric further implies that 

additional thresholds or notions of 

acceptability, separate from the $/ton 

metric, would need to be developed for 

BART determinations. We have not 

used this metric for BART purposes at 

FCPP because (1) it is unnecessary in 

judging the cost effectiveness of BART, 

(2) it complicates the BART analysis, 

and (3) it is difficult to judge. In 

particular, the $/deciview metric has 

not been widely used and is not wellunderstood as a comparative tool. In our 

experience, $/deciview values tend to 

be very large because the metric is based 

on impacts at one Class I area on one 

day and does not take into account the 

number of affected Class I areas or the 

number of days of improvement that 

result from controlling emissions. In 

addition, the use of the $/deciview 

suggests a level of precision in the 

CALPUFF model that may not be 

warranted. As a result, the $/deciview 

can be misleading. We conclude that it 

is sufficient to analyze the cost 


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13See ‘‘Incremental cost.xlsx’’ in the docket for 

this final rulemaking. 

effectiveness of potential BART controls 

for FCPP using $/ton, in conjunction 

with an assessment of the modeled 

visibility benefits of the BART control. 

EPA considered cost of controls, 

including the total capital costs, annual 

costs, and $/ton of NOX pollution 

reduced in our proposed BART 

determination. Additionally, in 

response to comments received on our 

proposal, EPA included calculations 

and consideration of incremental cost 

effectiveness (see Section 3.2 of the 

Response to Comments document in the 

docket for this final rulemaking). EPA 

considered visibility impacts, including 

the degree of impairment, the number of 

Class I areas affected by FCPP, the 

deciview improvement resulting from 

controls, and the percent change in 

improvement. EPA determined that 

these metrics are sufficient in 

completing our five-factor analysis for 

FCPP. 

Comment: One commenter stated that 

BART must be determined in the 

context of reasonable progress rather 

than in isolation and that the cost 

effectiveness metric used by EPA (i.e., 

$/ton of NOX reduced) does not satisfy 

the statutory requirement to consider 

the cost to comply with the Regional 

Haze program because it does not 

include compliance costs related to 

requirements for reasonable progress. 

Response: Congress identified BART 

as a key measure for ensuring 

reasonable progress. We disagree that 

BART must be determined in the 

context of reasonable progress. If 

anything, reasonable progress depends 

on BART. Because the Class I areas 

affected by emissions from FCPP are not 

achieving the glidepath, it is important 

that states, tribes, and EPA require 

reasonable measures to be implemented 

to ensure that progress is made towards 

the national visibility goal. 

The BART guidelines specify that the 

cost of controls be estimated by 

identifying the emission units being 

controlled, defining the design 

parameters for emission controls, and 

developing a cost estimate based on 

those design parameters using the EPA 

Control Cost Manual while taking into 

account any site-specific design or other 

conditions that affect the cost of a 

particular BART control option. The 

BART guidelines do not require the 

costs of compliance under BART to 

consider costs that may be associated 

with reasonable progress. 

Comment: The Navajo Nation 

commented that EPA should analyze the 

affordability of controls under the 

supplemental proposal by performing a 

detailed analysis, rather than an 

approximation, of the cost of 

compliance for installing SCR on Units 

4 and 5, including a consideration of the 

impacts of closing Units 1–3. 

Response: EPA disagrees that we 

should perform a detailed cost analysis 

of the alternative emission control 

strategy put forth in the Supplemental 

Proposal. The Regional Haze Rule, in 

assessing an alternative measure in lieu 

of BART (40 CFR 51.308(e)(2)) requires 

several elements in the alternative plan 

(e.g., a demonstration that the 

alternative will achieve greater 

reasonable progress than BART, and 

that reductions are surplus to the 

baseline date of the SIP), but does not 

require an analysis of the cost of the 

alternative plan. 

Similarly, an affordability analysis of 

the alternative emission control strategy 

is not required under the Regional Haze 

Rule; however, at the request of the 

Navajo Nation, pursuant to EPA’s 

customary practice of engaging in 

extensive and meaningful consultation 

with tribes, EPA commissioned a study 

to estimate potential adverse impacts to 

the Navajo Nation of APS’s option to 

close Units 1–3 and will provide the 

report to the Navajo Nation by letter as 

a follow-up to our consultation. 

2. Comments on Top-Down Analysis 

Versus Incremental Cost Effectiveness 

Comment: A number of commenters 

note that EPA’s proposed BART analysis 

was inconsistent with its own 

regulations in that it used a top-down 

analytic approach and failed to conduct 

an incremental cost evaluation. 

Commenters indicated that in using the 

top-down analysis, EPA failed to carry 

out the five-factor analysis for each of 

the technically feasible retrofit 

technologies as required by the BART 

Guidelines (citing 40 CFR part 51, 

Appendix Y, section I.F.2.c), including 

combustion control technology which 

the BART Guidelines identify as 

presumptive BART. 

Response: EPA disagrees with these 

comments. In the preamble to the final 

BART guidelines, EPA discusses two 

options presented in the 2001 proposal 

and 2004 reproposal of the guidelines 

for evaluating ranked control technology 

options (See discussion at 70 FR 39130). 

Under the first option, States would use 

a sequential process for conducting the 

analysis, beginning with a complete 

evaluation of the most stringent control 

option. The process described is a topdown approach analogous to the 

analysis we used in our proposed BART 

determination for FCPP. If the analysis 

shows no outstanding issues regarding 

cost or energy and non-air quality 

environmental impacts, the analysis is 

concluded and the top level of 

technically feasible controls is 

identified as the ‘‘best system of 

continuous emission reduction’’. 

Therefore, in conducting our BART 

determination for FCPP, EPA’s topdown approach for assessing the five 

factors was consistent with the 

discretion allowed under the BART 

guidelines. EPA additionally notes that 

the TSD for our proposed rulemaking 

included analyses of the costs, non-air 

impacts, and visibility improvements 

associated with combustion controls at 

FCPP, but that there is no requirement 

for a five-factor analysis on all 

potentially available control options if 

the top down approach is used and the 

top level of technically feasible controls 

is selected (70 FR 39130). 

Comment: One of the owners of FCPP 

asserted that the BART rules require an 

incremental cost analysis and provided 

an analysis comparing the costs of 

combustion controls to the costs of SCR. 

According to the commenter’s analysis, 

the incremental cost effectiveness of 

moving from combustion controls to 

SCR ranges from $6,553 to $8,605 per 

ton of NOX reduced for the five units at 

FCPP. This commenter and another 

FCPP owner asserted that this 

‘‘extraordinarily high’’ incremental cost 

highlights the fact that combustion 

controls, not SCR, satisfy the cost 

effectiveness test applied by EPA in 

adopting the presumptive BART limits 

in the BART rules. 

Response: EPA agrees that the BART 

Guidelines recommend consideration of 

both average and incremental cost 

effectiveness, however, EPA disagrees 

with the commenter that the 

incremental cost effectiveness should be 

a comparison between combustion 

controls and SCR for this particular 

facility. As discussed at length in the 

TSD for our proposed BART 

determination for FCPP, Region 9 has 

determined that combustion controls 

(burner modifications and overfire air, 

including ROFA) will not be effective at 

significantly reducing emissions at Four 

Corners without potential operational 

difficulties due to inherent design and 

physical limitations of the boilers. 

Therefore, in estimating incremental 

cost, it is inappropriate and misleading 

to include combustion controls in the 

analysis for this particular facility. To 

respond to this comment, EPA 

conducted an incremental cost 

effectiveness analysis and included it in 

our docket for this final rulemaking.13

Based on our incremental cost analysis, 

EPA has determined that the 

incremental cost of SCR compared to 


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Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 51625 

14EPA estimates facility-wide average cost 

effectiveness of the BART Alternative to be lower 

than BART because under the BART Alternative, 

Units 1–3 can be closed instead of retrofitted with 

new air pollution controls. On a per unit basis, the 

cost effectiveness of Units 4 and 5 is not expected 

to differ between BART or the BART Alternative. 

15Comment letter from President Joe Shirley, Jr. 

dated March 1, 2010 in the docket for the ANPR: 

EPA–R09–OAR–2009–0583–0209. 

16See document titled: ‘‘Timeline of all tribal 

consultations on BART.docx’’ in the docket for this 

final rulemaking. 

selective non-catalytic reduction 

(SNCR), the next most stringent option 

($2,500 per ton to $3,300 per ton), is 

reasonable and does not support the 

commenter’s conclusion that SCR is not 

BART for FCPP. 

EPA estimated the total capital cost of 

BART for NOX to be $718 million and 

total annual costs (annualized capital 

costs plus additional operating costs) to 

be $93 million per year. This final 

BART determination is expected to 

reduce emissions of NOX by 80 percent, 

from 43,000 tons per year to 8,500 tons 

per year, resulting in a facility-wide 

average cost effectiveness of about 

$2,700 per ton of NOX removed. EPA 

anticipates that this investment will 

reduce the visibility impairment caused 

by FCPP by an average of 57 percent at 

16 Class I areas within 300 km of the 

facility. A detailed summary of the cost 

and visibility benefits were provided in 

the Technical Support Document for the 

proposed rulemaking. As discussed in 

our Supplemental Proposal, although 

APS did not provide a cost estimate for 

the BART Alternative and the RHR does 

not require an evaluation of costs 

associated with a BART Alternative, if 

APS chooses to implement the 

Alternative, EPA anticipates those costs 

to be approximately 39 percent lower 

than the cost of BART. The BART 

Alternative is expected to reduce 

emissions of NOX by 87 percent, from 

43,000 tons per year to 5,600 tons per 

year, resulting in a facility-wide average 

cost effectiveness of roughly $1,600 per 

ton of NOX removed.14 EPA anticipates 

that implementation of the BART 

Alternative will reduce visibility 

impairment caused by FCPP by an 

average of 72 percent at 16 Class I areas 

within 300 km of the facility. 

B. Comments on Factor Two— 

Economic, Energy, and Non-Air Quality 

Environmental Impacts 

We received a number of comments 

on the economic impacts and on the 

energy and non-air quality 

environmental impacts. 

1. Comments on Economic Impacts 

a. General Comments on Economic 

Impacts 

Comment: Several commenters stated 

that EPA’s analysis of historical and 

expected costs of electricity from FCPP 

neglect to include public health costs 

related to air pollution and the negative 

impacts to tourism resulting from loss of 

visibility. The commenters concluded 

that the cost effectiveness metric used to 

determine BART must account for 

health costs related to poor air quality. 

Response: EPA disagrees with the 

comment that the cost effectiveness of 

BART must account for public health 

costs associated with poor air quality. 

Neither Section 169A of the CAA, nor 

the BART Guidelines, require the BART 

analysis to include or quantify benefits 

to health or tourism. Moreover, an 

analysis of health and tourism benefits 

is unlikely to alter the outcome of our 

BART determination, which already 

requires the most stringent control 

technology available for NOX.

Comment: The Navajo Nation, one 

federal agency, and two of the owners 

of FCPP stated that EPA must consider 

the collateral adverse effects on the 

Navajo Nation and the surrounding 

communities of its BART determination. 

The commenters provided background 

on the substantial interest that the 

Navajo Nation has in the continued 

operation of FCPP. The commenters 

indicated that FCPP and its coal 

supplier, the Navajo Mine operated by 

BHP Billiton (BHP), together provide 

income to the Navajo Nation that 

contributes substantially to the Nation’s 

economic viability and its sustainability 

as an independent sovereign nation. The 

commenters added that this resource 

extraction-based economy is the result 

of a conscious effort of the United States 

dating from the 1950s to develop the 

Nation’s coal resources. According to 

the commenter, if FCPP and the Navajo 

Mine were to close as the result of the 

imposition of cost-prohibitive emission 

controls, the resulting revenue and job 

losses would be significant for the 

Navajo Nation. 

Response: EPA agrees with 

commenters that the operation of FCPP 

and the Navajo Mine contribute 

significantly to the economy of the 

Navajo Nation and the Four Corners 

Region. 

It is not EPA’s intention to cause 

FCPP to shut down, nor is it within our 

regulatory authority under the Regional 

Haze Rule to require shutdown or 

redesign of the source as BART. As 

expressed in comments from the Navajo 

Nation to our Advanced Notice of 

Proposed Rulemaking,15 EPA 

understands that the Navajo Nation’s 

primary concern regarding the BART 

determination is the potential for FCPP 

closure. Therefore, as discussed in our 

proposed BART determination, EPA 

conducted an affordability analysis not 

typically included in a BART five-factor 

analysis in order to assess whether 

requiring SCR on all five units at FCPP 

would cause the power plant to close. 

The model was designed to determine 

which future alternative results in lower 

power costs: (a) Power produced at 

FCPP after installation of SCR or, (b) 

replacing the power from FCPP with the 

appropriate amount of wholesale power 

purchases. As discussed in the TSD for 

our proposed BART determination, the 

model results suggested that even if the 

owners of FCPP installed and operated 

SCR on all five units, the facility could 

still produce power at a lower cost than 

the cost to purchase replacement 

wholesale power on the open market. 

Thus, EPA concluded in our proposed 

BART determination that requiring SCR 

as BART on all five units would not 

likely result in plant closure. No 

information was provided by the 

commenter to change this conclusion in 

the proposal. 

Comment: The Navajo Nation asserted 

that EPA failed to consult with the 

Nation prior to publishing the 

supplemental proposal and failed in its 

trust responsibility to consider the 

economic impacts of closing Units 1–3. 

A federal agency commenter noted that 

EPA’s current analysis focuses primarily 

on increased costs to rate payers and the 

companies’ profitability, and stated that 

the analysis needs to incorporate the 

loss in revenue, jobs, and royalties 

resulting from the closure of Units 1–3 

under the supplemental proposal. 

Response: A timeline of 

correspondence and consultation with 

the Navajo Nation and other tribes for 

EPA actions on FCPP and Navajo 

Generating Station is included in the 

docket for the final rulemaking.16 EPA 

notes that the Regional Administrator of 

EPA Region 9 called President Joe 

Shirley on February 9, 2011 to inform 

him of EPA’s Supplemental Proposal. 

However, government-to-government 

consultation with the Navajo Nation on 

FCPP did not occur until May 19, 2011, 

with additional consultation occurring 

on June 13, 2012, prior to issuing our 

final rulemaking. The Navajo Nation 

raised concerns about the potential 

adverse impacts of the BART 

Alternative and requested that EPA 

conduct an analysis to estimate those 

impacts. 

Although the Regional Haze Rule does 

not require a cost analysis of a BART 

alternative, at the request of the Navajo 

Nation, as part of EPA’s customary 


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17See 77 FR 9304, February 16, 2012. 

practice of engaging in extensive and 

meaningful consultation with tribes and 

tribal authorities with regard to relevant 

Agency actions, EPA did commission an 

analysis to estimate potential adverse 

impacts on the Navajo Nation, with 

respect to coal- and power plant-related 

revenues, of the optional BART 

Alternative to retire Units 1–3. The 

report will be provided to President 

Shelly by letter as a follow-up to our 

consultation with the Navajo Nation. 

Comment: One owner of FCPP stated 

that EPA’s proposal to require SCR at 

FCPP presents significant challenges 

and risks with regard to its resource 

planning. The commenter pointed out 

that implementation of the BART 

proposal would require the commenter 

to make a significant capital investment 

in FCPP, which could only be recovered 

through long-term operation of the 

plant. According to the commenter, this 

would have the effect of locking FCPP 

into the commenter’s generation 

portfolio for a considerable period or 

risk stranding those investments. 

Response: EPA appreciates the 

perspectives shared in this comment, 

but we disagree that our five-factor 

BART analysis should consider the 

potential loss of an owner’s flexibility to 

respond to possible future economic or 

regulatory scenarios. EPA cannot give 

substantial consideration in our BART 

analysis to external factors that are of 

uncertain magnitude and that may or 

may not occur. EPA further notes that 

the RHR allows for the development of 

BART alternatives that achieve greater 

reasonable progress than BART and EPA 

appreciates the fact that the owners of 

FCPP put forth an alternative that gives 

them more flexibility and results in 

greater emission reductions at FCPP. 

b. Comments on EPA’s Economic 

Analysis 

Comment: One public interest 

advocacy group concurred with the 

EPA’s analysis that the potential 

increase to APS rate payers as a result 

of SCR is expected to be less than 5 

percent, as described in the TSD. The 

commenter stated that EPA’s estimates 

are reasonable and that the average 

increase in the cost of generation at 

FCPP as a result of SCR implementation 

would be 22 percent, or $0.0074 per 

kWh, as stated in the TSD. 

One of the owners of FCPP stated that 

installation of BART controls would 

increase its average residential customer 

monthly bills by $5.10 (3.8 percent) and 

larger industrial customer monthly bills 

by $17,400 (6.4 percent). The 

commenter also indicated that installing 

SCR and baghouses on Units 1–3 would 

increase the cost of electricity 

production on a $/MWh basis by more 

than 50 percent which, in conjunction 

with other market and regulatory 

uncertainties, may make the units 

uneconomical. The commenter also 

raised concerns related to the economic 

viability of Units 4 and 5 if SCR were 

installed on those units. 

Another of the owners of FCPP, who 

also owns part of San Juan Generating 

Station and Navajo Generating Station, 

indicated that if SCR was required on all 

three power plants, its customers would 

face a rate increase of 4 to 6 percent, 

which would be significant because the 

local economy is fragile and has 

endured an 8 percent rate increase (not 

adjusted for inflation) since 1992. 

Response: EPA agrees with the first 

commenter that based upon our analysis 

the potential increase to APS rate payers 

as a result of SCR is expected to be less 

than 5 percent. EPA cannot assess the 

estimated residential and industrial rate 

increase claimed by the second and 

third commenters with our economic 

analysis because the commenters did 

not provide information for us to 

evaluate their conclusions. However, 

EPA notes that the installation of 

baghouses on Units 1–3 is no longer 

relevant because EPA has determined 

that it is not necessary or appropriate at 

this time to set new PM limits for Units 

1–3. This is because the Mercury and 

Air Toxics Standard (MATS) rule, 

which sets a filterable PM limit of 0.03 

lb/MMBtu, is now final 17 and EPA is 

finalizing in this rulemaking the option 

to allow APS to comply with either 

BART or the BART alternative, which 

involves closure of Units 1–3. 

Comment: One of the owners of FCPP 

expressed concern that EPA’s analysis 

focuses on the effects on APS and 

Southern California Edison ratepayers, 

and not on the other owners of FCPP. 

This commenter’s specific concerns 

include that the use of a ‘‘return on 

rate’’-based methodology would not 

apply to organizations of the 

commenter’s type (a publicly owned 

utility) because it is not an investorowned utility. In addition, the 

commenter stated that the EPA analysis 

did not attempt to determine the impact 

of different assumptions, such as an 

uncertainty with the future price of coal, 

on the conclusions of the analysis. 

Specifically, the ‘‘small difference’’ that 

EPA estimates between FCPP with SCR 

installed and the cost of purchasing 

power to replace FCPP generation 

suggests that a small change in an 

underlying assumption (return on rate, 

coal price, carbon pricing, etc.) could 

result in model results that show SCR to 

be a higher cost option than purchasing 

power. The commenter also raised the 

concern that EPA’s analysis did not 

examine different ‘‘payback periods,’’ 

but instead relied on a payback period 

of 25 years, which may be inappropriate 

because the useful life of the plant is far 

from certain. The commenter said that 

EPA should recognize that there is a real 

risk that one or more owners may 

decide not to invest in SCR, which 

would force the shutdown of FCPP 

unless another owner could be found in 

a timely manner. The commenter also 

said that shutdown of FCPP would have 

significant adverse consequences on the 

Navajo Nation. 

Response: The commenter is correct 

that EPA calculated rate impacts for 

only two of the four investor-owned 

utilities that own FCPP and excluded 

others, including an owner that operates 

as a publicly owned utility. The analysis 

estimating the increase in electricity 

generation costs is applicable to all 

owners of FCPP, but the rate impact 

analysis provided in the model was not 

intended to capture the rate impacts of 

all owners. APS and Southern California 

Edison (SCE) were selected because 

their combined ownership shares 

account for nearly 75 percent of the 

plant’s output. In addition to our 

expectation that the utilities with the 

largest ownership share in FCPP would 

generally experience greater ratepayer 

impacts from capital expenditure 

projects like SCR installation, we also 

assumed that ratepayers of investorowned utilities would likely experience 

larger impacts than public power 

customers due to the fundamental 

difference between their respective 

approaches to setting rates. Specifically, 

rates for public power utilities, in 

contrast to investor-owned utilities, do 

not include recovery for a margin above 

cost allowed as part of a regulated rate 

of return. Thus, all other variables being 

equal, one would expect the same 

capital investment to result in a larger 

rate impact for customers of investorowned utilities than for customers of 

public power entities. Therefore, EPA 

continues to believe that our analysis of 

ratepayer impacts for only APS and SCE 

are appropriately conservative to 

demonstrate worst-case impacts to 

ratepayers of all six owners. 

EPA agrees with the commenter that 

there are many company-specific factors 

and a wide range of assumptions that 

would affect a given owner’s decision to 

make further substantial investments 

(such as SCR) at FCPP. Although many 

of those factors were outside the focus 

of the modeling because they were 

either unrelated to BART or were 

related to regulatory uncertainties in the 


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18On March 22, 2012, the California Public 

Utilities Commission (PUC) approved the sale of 

SCE’s ownership share in FCPP to APS. On April 

18, 2012, the Arizona Corporation Commission 

voted to allow APS to purchase SCE’s ownership 

share in FCPP. 

future, we included a qualitative 

discussion in Appendix B to the TSD 

regarding decision variables that EPA 

assumed each owner must consider 

before making capital expenditures. 

Additionally, EPA notes that the use of 

low, medium and high future projected 

prices for the Palo Verde Index in 

Appendix B to the TSD for the proposed 

rulemaking represents a sensitivity 

analysis for the market comparison. 

With respect to the comment on the 

‘‘payback period’’, the economic 

analysis for the proposed BART 

determination did not identify ‘‘payback 

periods’’. Rather, the commenter 

appears to be referring to the 25-year 

period used in the discounted cash flow 

model. EPA does not disagree with the 

commenter’s stated concern that a 

shorter plant life, and thus shorter 

discounting periods, would yield 

different economic results. However, 

EPA disagrees with commenters that a 

shorter useful life should be considered 

in the economic analysis because there 

is no enforceable obligation on APS to 

cease operations on a given (earlier) 

date. 

2. Comments on Energy and Non-Air 

Quality Environmental Impacts 

Comment: One private citizen stated 

that no consideration was given to the 

effect of removing FCPP generation from 

the grid. According to the commenter, 

the events of February 2, 2011, show 

there are times when gas-fired 

generation cannot replace coal-fired 

generation because there is not enough 

gas transportation capacity. 

Response: EPA disagrees with the 

commenter that we should consider the 

effect of removing FCPP generation from 

the grid. As stated elsewhere, it is not 

EPA’s intention, nor is it within our 

regulatory authority, to require closure 

or require a redefinition of the source, 

in order to comply with the BART 

requirement of the Regional Haze Rule. 

Furthermore, the owners of FCPP did 

not provide evidence that the 

installation of SCR would cause FCPP to 

close. 

EPA also notes that APS proposed to 

purchase the shares of Units 4 and 5 

currently owned by Southern California 

Edison in order to close Units 1–3 (of 

which APS is sole owner) and install 

SCR on Units 4 and 5 as an alternative 

to BART. APS has received approval 

from the Arizona Corporation 

Commission and the California Public 

Utilities Commission to purchase 

Southern California Edison’s share of 

Units 4 and 5. APS is also seeking 

approval from the Federal Energy 

Regulatory Commission to implement 

its proposal.18 Decisions on investing in 

pollution controls or shutting down 

units are made by the owners in 

conjunction with their oversight boards 

or public utility commissions. These 

oversight bodies are also responsible for 

assuring the adequacy of electrical 

generating capacity, whether from coal, 

gas or nuclear fuels or renewable 

sources. 

Comment: Thirty-seven private 

citizens commented that FCPP causes 

significant threats to public health due 

to its effects on air quality. In addition, 

a number of environmental and public 

interest advocacy groups provided 

comments on health and ecosystem 

impacts of the pollutants emitted by 

FCPP. 

Regarding health impacts, the 

commenter noted that the same 

pollutants that contribute to visibility 

impairment also harm public health— 

the fine particulates that cause regional 

haze can cause decreased lung function, 

aggravate asthma, and result in 

premature death in people with heart or 

lung disease. The commenter added that 

NOX and volatile organic compounds 

(VOCs) can also be precursors to 

ground-level ozone, which is associated 

with respiratory diseases, asthma 

attacks, and decreased lung function. 

According to the commenter, ozone 

concentrations in parks in the Four 

Corners region approach the current 

health standards, and likely violate 

anticipated lower standards. 

The same commenter also contended 

that consideration of non-air quality 

impacts extends to impacts on wildlife 

and habitat as well as natural and 

cultural heritage. According to the 

commenter, haze-causing emissions also 

harm terrestrial and aquatic plants and 

animals, soil health, and water bodies 

by contributing to acid rain, ozone 

formation, and nitrogen deposition. 

With these health and environmental 

considerations in mind, in addition to 

visibility and economic considerations 

discussed in other sections of this 

document, the commenter urged the 

EPA to finalize more stringent BART 

determinations for FCPP. 

The commenter noted that FCPP is a 

significant source of mercury emissions 

and provided information on the health 

and ecosystem effects of mercury, as 

well as on the deposition of mercury 

and the levels of mercury found in the 

Four Corners area. In addition, the 

commenter stated that FCPP emits more 

than 16 million tons per year (tpy) of 

CO2, and that such emissions contribute 

significantly to climate change which is 

likely to result in increasing 

temperatures and increase drought in 

the Southwest. The commenter noted 

that the supplemental proposal would 

reduce emissions of both mercury and 

CO2. 

One environmental advocacy group 

stated that a formal Health Impact 

Assessment should be conducted by 

independent experts before EPA’s final 

decision to answer such questions as 

whether shutting down Units 1–3 is 

sufficient to protect local health, and 

what health impacts would result from 

delaying pollution controls on Units 4 

and 5 until 2018. 

Response: EPA agrees that there are 

potential benefits to health and the 

environment from reducing emissions of 

NOX. However, quantifying health 

benefits is not within the scope of the 

BART five factor analysis required 

under the CAA (§ 169A(g)). The BART 

Guidelines provide additional 

information on how to analyze ‘‘non-air 

quality environmental impacts, and 

focuses on adverse environmental 

impacts associated with control 

technologies, i.e., generation of solid or 

hazardous wastes and discharges of 

polluted water, that have the potential 

to affect the selection or elimination of 

a control alternative’’ (see 70 FR 39169). 

Thus, although the BART Guidelines do 

state that relative environmental 

impacts (both positive and negative) of 

alternatives can be compared with each 

other, they state that ‘‘if you propose to 

adopt the most stringent alternative, 

then it is not necessary to perform this 

analysis of environmental impacts for 

the entire list of technologies’’. EPA 

agrees with commenters that controlling 

pollutant emissions may have cobenefits for reducing ozone production 

and acid deposition. EPA does not 

interpret the BART Guidelines to 

require quantification of human health 

or environmental co-benefits in 

determining BART, particularly if the 

most stringent BART option is finalized. 

Similarly, EPA does not interpret the 

BART guidelines to require human 

health or environmental assessments of 

alternative compliance strategies as long 

as we have determined that the 

alternative strategy achieves better 

progress towards the national visibility 

goal. 

Comment: The commenter stated that 

human exposure to environmental 

hazards is an important factor in 

assessing impacts of FCPP. The 

commenter encouraged EPA to pursue 

health studies in collaboration with the 

Navajo Nation to study local risks 


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51628 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

19See B&V Engineering Analysis for Units 1–5 at 

FCPP dated December 2007. Document number 

0011 in docket for proposed rulemaking: EPA–R09– 

OAR–2010–0683. 

associated with exposure to criteria 

pollutants, indoor air pollutants, and 

other contributing air pollutants, from 

which improved public health and 

effective rulemakings under the CAA 

may be achieved. 

Response: Assessing human exposure 

and quantifying health benefits are 

outside the scope of the requirements of 

the Regional Haze Rule. EPA sets 

National Ambient Air Quality Standards 

(NAAQS) to establish levels of air 

quality that are protective of public 

health, including the health of sensitive 

populations, for a number of pollutants 

including particulate matter. These 

‘‘sensitive’’ populations include 

asthmatics, children, and the elderly. At 

this time the Navajo Nation is not 

identified as out of attainment with any 

of the NAAQS. However, EPA 

recognizes that there are significant 

concerns about risk and exposure to air 

pollutants on the Navajo Nation and 

EPA will continue discussions with the 

Navajo Nation and will involve other 

federal agencies, as appropriate, to help 

address these concerns. 

C. Comments on Factor Three—Existing 

Controls at FCPP 

Comment: One of the owners of FCPP 

agreed with EPA’s summary of the 

existing controls at the plant, but noted 

that the proposed FIP is only the most 

recent action in a long line of regulatory 

and voluntary efforts to reduce 

emissions of pollutants that impact 

visibility, including SO2, NOX, and PM 

emissions. The commenter asserted that 

FCPP has a strong history of retrofitting 

pollution controls and recounted the 

facility’s history of installing these 

controls and reducing emissions. 

Response: EPA agrees that there have 

been numerous installations of 

pollution controls over the several 

decades that FCPP has been in 

operation. The most recent voluntary 

effort by FCPP increased the SO2

removal from its long-term level of 72 

percent removal to 88 percent removal. 

This was accomplished before the end 

of 2004 and became effective as a 

regulatory requirement in June 2007. 

The improvement in SO2 removal has 

resulted in a decrease of over 22,000 

tons of SO2 per year since that time. 

D. Comments on Factor Four— 

Remaining Useful Life at FCPP 

Comment: One of the owners of FCPP 

noted that the BART rules state that the 

normal amortization period (20 years for 

NOX control devices) is appropriate to 

use as the remaining useful life if the 

plant’s ‘‘remaining useful life will 

clearly exceed’’ that amortization period 

(citing 70 FR 39169). The commenter 

asserted, however, that as a result of 

substantial uncertainty related to 

multiple factors, it is not at all clear that 

the plant’s remaining useful life is at 

least 20 years. 

Moreover, according to the 

commenter, one factor that should not 

be allowed to shorten the useful life 

under the BART rules is the choice of 

BART itself—EPA cannot use a 20-year 

amortization period to justify a specified 

technology (e.g., SCR) if the application 

of the technology would be so costly as 

to make the facility uneconomical and 

shorten its useful life (citing 70 FR 

39164, 39171). 

The commenter made a number of 

arguments related to the possibility of a 

shorter useful life at FCPP that are 

briefly summarized here. The excessive 

cost of SCR will dramatically increase 

the energy costs of the plant, potentially 

making it uneconomical. The proposed 

‘‘phase-in schedule’’ for SCR may force 

closure of units because APS will not 

have certainty by the compliance 

deadline that the lease will be extended 

or that Southern California Edison’s 

ownership share will have been 

successfully transitioned. Emerging 

environmental laws and regulations 

present cost and operational uncertainty 

that may shorten FCPP’s useful life 

(including new GHG laws and 

regulations, MATS, new ash-handling 

requirements, and new requirements for 

cooling water intake structures). 

Response: EPA disagrees that we must 

consider a shorter useful life because of 

uncertainty related to the factors cited 

by the commenter. It is inappropriate to 

consider a useful life shorter than 20 

years based solely on uncertainty or the 

possibility of shut down. EPA further 

notes that in its cost analysis on behalf 

of APS, B&V stated ‘‘the remaining 

useful life of Units 1 through 5 was at 

least 20 years’’.19 Unless there is an 

enforceable obligation for APS to cease 

operations or unless APS convincingly 

demonstrates that controls (rather than 

uncertainty associated with future 

requirements) will cause facility 

closure, the default 20 year amortization 

period represents the appropriate period 

for the remaining useful life. 

EPA agrees that our proposed ‘‘phasein’’ schedule for installation of add-on 

post-combustion NOX controls on Unit 

1–3 for BART, which was added in the 

supplemental proposal, may have 

allowed less than two years for 

engineering and installation from the 

date by which APS intends to make its 

decision on continuing operation or 

shutting the units down by 2014. EPA 

is finalizing a modified schedule for the 

installation of add-on post combustion 

controls from what was originally 

proposed (phased-in installation of 

controls within three to five years of 

effective date) by requiring one of the 

750 MW units to comply with the BART 

emission limit within 4 years of the 

effective date of this final rule and the 

remaining units (Units 1–3 and either 

Unit 4 or 5) within 5 years of the 

effective date of this final rule. 

Comment: One industry commenter 

stated that EPA, rather than evaluate 

APS’ supplemental proposal as an 

alternative emission control strategy, 

should instead ‘‘re-determine’’ BART for 

each of the five units at FCPP based on 

the APS-proposed shutdown scenario 

for Units 1–3, i.e., reducing the 

remaining useful life of Units 1–3 to 

2014 and then using the short remaining 

life of those units to determine that 

BART for Units 1–3 is no additional 

control. The commenter concluded that 

a ‘‘better-than-BART’’ control strategy 

does not seem to be necessary for 

determining the appropriate 

requirements for FCPP under the APSproposed shutdown scenario; instead, a 

BART determination for each unit with 

appropriate weighting of the statutory 

factors appears to present a logical and 

less-burdensome means of applying 

section 169A(b)(2) of the CAA to FCPP. 

Response: EPA disagrees that APS’ 

supplemental proposal should be 

evaluated in terms of a BART redetermination rather than in terms of its 

current status as a ‘‘better-than-BART’’ 

alternative measure. The 2006 Regional 

Haze Rule (71 FR 60612) established the 

procedures described in 40 CFR 

51.308(e)(2) and (3) for scenarios 

involving programs that may make 

greater reasonable progress than sourceby-source BART. These provisions were 

specifically included to allow for the 

flexibility to consider alternative 

measures such as the one proposed by 

APS, and EPA considers it the most 

appropriate method for evaluating APS’ 

supplemental proposal. 

Comment: One industry commenter 

discussed the ‘‘remaining useful life’’ 

statutory factor, noting that under the 

BART Guidelines remaining useful life 

is ignored in the majority of BART 

determinations (citing 40 CFR part 51, 

Appendix Y, section IV.D.4.k), which 

the commenter asserted is 

inappropriate. According to the 

commenter, Congress designated the 

remaining useful life of the source as an 

important consideration because it did 

not want to impose the burdens of 

control technology retrofits on sources 


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Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 51629 

that were more than 15 years old at the 

time the statute was enacted. Given that 

it is now 34 years after the BART 

requirements were enacted, the 

commenter stated that the ‘‘remaining 

useful life’’ statutory factor should 

weigh heavily in BART determinations 

for older sources such as FCPP, instead 

of being ignored. 

Response: EPA disagrees with the 

commenter that we ignored the 

‘‘remaining useful life’’ statutory factor 

in our BART decision. EPA considered 

this factor in our BART analysis (see 

pages 42–43 of the TSD for our 

proposed BART determination). As 

discussed in the TSD, the remaining 

useful life of an Electric Generating Unit 

(EGU) subject to BART is determined by 

the utility. EPA cannot arbitrarily 

decide that an EGU has less useful life 

when it is not within our BART 

rulemaking authority to require closure 

of an EGU. If a utility used a shorter 

useful life than one that would allow 

the full amortization of any necessary 

pollution controls, EPA would take that 

into account in the cost analysis, 

provided that there was an enforceable 

obligation for the facility to cease 

operation by that time. 

E. Comments on Factor Five— 

Anticipated Visibility Improvements 

Comment: One of the owners of FCPP 

presented information on visibility 

conditions on the Colorado Plateau and 

the role of NOX emissions in Western 

visibility impairment. The commenter 

noted that SO2 and NOX emissions have 

been decreasing in recent years. The 

commenter also presented information 

that purported to show that whether 

averaged over the haziest 20 percent of 

days, the clearest 20 percent of days, or 

all days, power plant NOX emissions 

contribute less than 1.5 percent to the 

light extinction at Mesa Verde National 

Park. 

Another commenter questioned EPA’s 

assertion that NOX and PM from FCPP 

are significant contributors to visibility 

impairment in the numerous mandatory 

Class I areas surrounding FCPP (citing 

75 FR 64221), stating that coal-fired 

power plants, including FCPP, are 

relatively small contributors to regional 

haze in the surrounding Class I Areas. 

Response: EPA modeling of FCPP 

showed visibility impacts ranging from 

1.2 to 6.0 deciviews (dv), depending on 

the Class I area, with the sum of impacts 

at all sixteen Class I areas totaling 43 dv. 

This is a significant contribution to 

visibility impairment. Even if an 

individual source category appears 

small to some commenters, the many 

segments of the emissions inventory 

together cause significant visibility 

impairment and must be addressed in 

order to make progress towards the 

national goal of remedying visibility 

impairment from manmade pollution. 

Section 169A of the CAA requires BART 

determinations on BART-eligible EGUs 

regardless of trends or ambient visibility 

conditions. Application of BART is one 

means by which we can ensure that 

downward emission and visibility 

impairment trends continue. EPA 

identifies stationary sources as an 

important category to evaluate in a 

BART analysis. 

Comment: Three of the owners of 

FCPP, the Navajo Nation, and two 

utility industry associations argued that 

EPA’s use of Interagency Workgroup on 

Air Quality Modeling (IWAQM) Phase II 

default background ammonia values is 

not appropriate. They argued the 

following points: (1) Actual field 

measurements show lower ammonia 

concentrations than used by EPA; (2) 

EPA is mistaken in its assumption that 

background ammonia concentrations 

along the path of the plant’s plume 

determine nitrate concentrations and 

their contribution to haze at the receptor 

site; (3) EPA’s ‘‘corroborating’’ approach 

of ‘‘back-calculating’’ ammonia is 

flawed because it erroneously assumes 

that the ammonia associated with 

measured sulfate and nitrate would all 

be available to react with FCPP 

emissions, whereas in reality those 

measurements reflect emissions from 

many sources; (4) EPA’s analysis of 

nitrate predictions as a check on the 

ammonia values used is also flawed 

because it erroneously assumes that the 

resulting measured nitrate levels are 

solely due to FCPP emissions; (5) 

comparable analysis using the EPA 

ammonia value shows substantial and 

‘‘physically impossible’’ overpredictions of nitrate. The commenters 

conclude that the use of IWAQM values 

invalidates EPA’s BART modeling and 

the BART determination that relied on 

the modeling. 

Another utility industry association 

stated that several measurement 

programs on the Colorado Plateau show 

that actual ammonia values in Class I 

areas near FCPP are significantly lower 

than the IWAQM default value, 

indicating that these values typically 

range from 0.1 to 0.6 ppb. The 

commenter noted that ammonia 

concentrations are lowest during the 

cold season when the visibility impacts 

of NOX emissions are the highest. 

Accordingly, the commenter asserted 

that using a single ammonia value 

throughout the year is not scientifically 

valid and should be replaced with 

seasonally variable values. 

The Navajo Nation expressed concern 

regarding discrepancies between EPA 

and APS modeling inputs, given the 

commenter’s understanding that APS 

obtained advance EPA approval for its 

modeling protocols. Some commenters 

stated that EPA had earlier agreed to 

lower ammonia concentrations, and so 

should not be using the higher IWAQM 

value now. 

In contrast, one public interest 

advocacy group concurred with EPA’s 

back-calculation method for ammonia 

background levels (citing the TSD, page 

60). The commenter added that the 

requests to EPA from other commenters 

for additional ammonia monitoring data 

are unrealistic in today’s budget 

environment. 

Response: EPA disagrees with 

commenter objections to the background 

ammonia concentrations used in our 

modeling. Our use of the 1 ppb IWAQM 

Phase II default background ammonia 

value is appropriate. Most of the 

objections have already been discussed 

in EPA’s TSD for the proposal; and 

several of them concern the ‘‘backcalculation’’ method that we used only 

as corroboration for using the 1 ppb 

results we principally relied on. Also, 

even if the lower ammonia 

concentrations urged by some 

commenters were accepted, EPA’s 

sensitivity modeling results provided in 

the TSD for our proposed BART 

determination showed the visibility 

benefits would still support EPA’s 

BART determination. EPA also provided 

the results of modeling runs that used 

the lower ammonia background 

concentrations recommended by some 

commenters (see TSD Table 37). The 

visibility benefits of the NOX controls 

for BART are substantial under all 

ammonia scenarios, including the lower 

background ammonia concentrations 

recommended by commenters. For 12 

Class I areas, modeling even with those 

lower background concentrations 

showed improvements of 0.5 dv or 

more, an amount recognized in the 

BART Guidelines as significant (e.g. at 

70 FR 39120). 

The lack of ammonia and ammonium 

measurements in the Class I areas of 

concern requires that EPA estimate 

background ammonia concentrations by 

some method, considering available 

data and approaches. As discussed in 

the BART proposal and its 

accompanying TSD, 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 rely on the 1 part per billion (ppb) 


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51630 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

20Mark E. Sather et al., 2008. ‘‘Baseline ambient 

gaseous ammonia concentrations in the Four 

Corners area and eastern Oklahoma, USA’’. Journal 

of Environmental Monitoring, 2008, 10, 1319–1325, 

DOI: 10.1039/b807984f. 

default value in IWAQM, as was the fact 

that IWAQM is the only available 

guidance on this issue. In summary, 

there is insufficient monitoring 

information available to use a different 

value, or to support any seasonally 

varying values and, as described below, 

these values are reasonable to use in this 

analysis. 

On the first issue, field measurements 

cited by the commenters were not 

performed in the Four Corners area, nor 

at the Class I areas near FCPP, so they 

do not give appropriate ammonia 

background concentrations for modeling 

of FCPP. In addition, the studies 

provide only gaseous ammonia (NH3) 

and not ammonium (NH4) that has 

reacted with SO2 or NOX emissions. For 

purposes of assessing FCPP impacts 

relative to natural background, per the 

BART Guidelines, both ammonia and 

ammonium should be assumed to be 

available to interact with emissions 

from FCPP. The ammonia-only 

measurements cited by the commenters 

underestimate the available ammonia. 

Finally, as discussed in the TSD, field 

measurements in the Four Corners area 

showed ammonia measurements 

ranging from 1.0 ppb to 1.5 ppb, and 

sometimes as high as 3.5 ppb.20 This 

provides some additional support for 

the 1 ppb used by EPA. 

On the second issue, in using a 1 ppb 

background EPA did not rely on an 

assumption about the importance of 

background ammonia along the path of 

the plume, as claimed by the 

commenters. The 1 ppb background is a 

representative value for areas in the 

west under existing EPA guidance, in 

the IWAQM document. The 

commenters’ objection is based on the 

rapidity of the nitrate-nitric acid 

equilibrium, which they state implies 

that ammonium nitrate can only be 

estimated using ammonia measurements 

right at the Class I area, and not the 

ammonia that occurs earlier along the 

plume’s path to the area. EPA’s TSD for 

the proposed rulemaking did state (TSD 

p.62) that the Federal Land Managers 

partly relied on this assumption as one 

of the rationales for the back-calculation 

method, discussed below; EPA also 

expressed support for the idea that the 

method can be viewed as a 24-hour 

temporal integration, not just a spatial 

integration over the plume path, and 

that this aspect can be viewed as 

desirable for the 24-hour average 

visibility estimate that CALPUFF 

provides (TSD pp.71–72). This 

plausibility argument applies despite 

the rapid nitrate-nitric acid equilibrium 

cited by the commenters, and in any 

case was not relied on by EPA in using 

the 1 ppb default ammonia background. 

As the commenters stated under the 

third issue, EPA used a back-calculation 

ammonia estimation method as an 

alternative means of corroboration for 

the 1 ppb IWAQM method, which is 

more fully explained in the TSD for the 

proposed rulemaking. Essentially, it 

uses measured particulate ammonium 

sulfate and nitrate to estimate the 

amount of ammonia that must have 

been present to form those ammonia 

compounds. The commenters object that 

the method assumes that all the 

calculated ammonia is available to 

interact with the FCPP plume as 

background ammonia. However, this 

assumption is reasonable for the singlesource CALPUFF modeling performed 

under the BART Guidelines. It estimates 

ammonia concentrations that would be 

monitored at the Class I area if only this 

single source existed; it includes 

ammonia that is currently in the form of 

ammonium because of interaction with 

other sources’ emissions. It remains true 

that some portion of the calculated 

ammonia would in reality not be 

available for FCPP, because it arrives at 

the monitor from a different direction 

than FCPP’s pollutant plume; on the 

other hand, the data would also include 

directions contributing below-average 

ammonia, reducing that effect. 

In addition, the back-calculated 

ammonia is based on measurements 

only of particulate ammonium, the form 

associated with measured sulfate and 

nitrate; it does not include any gaseous 

ammonia that may also be present. In 

this sense, the back-calculated ammonia 

is a lower bound on the ammonia that 

may be available to interact with source 

emissions; that is, the method may 

underestimate ammonia concentrations. 

This possible underestimation tends to 

offset possible overestimation discussed 

above. 

EPA does not claim that the backcalculation method is dispositive; it 

incorporates various assumptions and 

imperfections that make clear it is only 

an estimate. However, it is based on real 

measured data at Class I areas, and has 

some counterbalancing tendencies for 

over- and under-estimation. After 

weighing various lines of argument 

about the back-calculation method, EPA 

disagrees with the commenters who 

recommended that it be rejected 

altogether. The method provides a 

useful estimate of ammonia for BART 

modeling, by providing concentrations 

representative of the high values that 

would be observed at the Class I areas 

in the absence of other sources. The 

back-calculation method, therefore, is 

used to corroborate that it is appropriate 

to use the 1 ppb IWAQM default for 

background ammonia concentrations. 

In the fourth issue raised by 

commenters, the commenters claim that 

the assumption of full availability to 

FCPP of the back-calculated ammonia 

invalidates EPA’s comparison of 

monitored nitrate levels with those 

modeled using the back-calculated 

ammonia (TSD p.73). As just discussed 

for the third issue, EPA disagrees that 

the assumption is invalid for 

corroboration of single-source BART 

assessment modeling. For single-source 

BART modeling, on balance, it is 

reasonable to assume all the ammonia is 

available to the source, given the 

counterbalancing tendencies for overand underestimation inherent in the 

back-calculation method discussed 

above. In any case, this method mainly 

provided corroboration for the results 

from using the 1 ppb ammonia default. 

The fifth issue about ‘‘physically 

impossible’’ nitrate over-predictions 

does not account for the fact that any 

model evaluation is expected to have 

under- and over-predictions, depending 

on the meteorological conditions and 

the geographic location modeled, as 

well as on the location of the monitor 

used for comparison. The commenter’s 

apparent requirement for no overpredictions whatsoever would require a 

model with the converse problem, a bias 

toward underprediction. While 

consistent over-prediction in a full 

model performance evaluation would 

indeed raise concerns over its validity, 

as EPA stated, our nitrate comparison 

was not intended as a model 

performance evaluation, but rather as a 

‘‘rough check’’ for the back-calculation 

corroboratory method (TSD p.73). EPA 

found that the modeled and monitored 

values, for both the maximum values 

and the 98th percentiles, were generally 

in agreement. 

Finally, contrary to the commenter’s 

assertion, EPA did not receive a 

modeling protocol in advance of 

modeling by APS’s contractor. EPA 

disagrees with commenters that EPA 

committed to use the same ammonia 

concentrations used by APS’s contractor 

in our own modeling analysis for our 

BART determination. 

Comment: Three of the owners of 

FCPP and a utility industry association 

asserted that CALPUFF version 5.8 used 

in EPA’s BART analysis is outdated. 

Because of enhancements to the model’s 

chemistry, the commenters asserted that 

CALPUFF version 6.4 represents the 

best application that is currently 

available. A number of the commenters 


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Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 51631 

mentioned a December 2010 meeting 

between the CALPUFF developer and 

the FLMs where the FLMs reportedly 

supported an expedited review and 

approval of CALPUFF version 6.4. 

Another owner of FCPP stated that the 

version of CALPUFF used by EPA has 

a tendency to over-predict nitrate 

concentrations, which is compounded 

by EPA’s use of what the commenter 

stated are overestimated ammonia 

background values. The commenter 

asserted that this combination of errors 

results in a significant over-prediction 

of visibility improvements for more 

stringent NOX BART control options. 

Further, the commenter stated that this 

disproportionately affects the 

incremental visibility benefits predicted 

for SCR over Low NOX Burners (LNB) 

compared to LNB over baseline. 

In contrast, one federal agency was 

generally supportive of the modeling 

methods employed by EPA with the 

regulatory approved version 5.8 of the 

CALPUFF modeling system. 

Response: EPA disagrees with the 

commenters that any new CALPUFF 

version should be used for the BART 

determination. EPA relied on version 

5.8 of CALPUFF because it is the 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 consistent 

with the version from the time of the 

initial 2003 promulgation, in the 

analytical situations CALPUFF has been 

approved for. Any other version 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. 

In addition, the latest version of 

CALPUFF, 6.4, incorporates a detailed 

treatment of chemistry. EPA’s 

promulgation of CALPUFF (68 FR 

18440, April 15, 2003) as a ‘‘preferred’’ 

model approved it for use in analyses of 

Prevention of Significant Deterioration 

increment consumption and for 

complex wind situations, neither of 

which involve chemical 

transformations. For visibility impact 

analyses, which do involve chemical 

transformations, CALPUFF is 

considered a ‘‘screening’’ model, rather 

than a ‘‘preferred’’ model; this 

‘‘screening’’ status is also described in 

the preamble to the BART Guidelines (at 

70 FR 39123, July 6, 2005). The change 

to CALPUFF 6.4 is not a simple model 

update to address bug fixes, but a 

significant change in the model science 

that requires its own rulemaking with 

public notice and comment. 

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 and not 

associated 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. 

EPA intends to conduct a 

comprehensive evaluation of the latest 

CALPUFF version along with other 

‘‘chemistry’’ air quality models in 

consultation with the Federal Land 

Managers, including a full statistical 

performance evaluation, verification of 

its scientific basis, determination of 

whether the underlying science has 

been incorporated into the modeling 

system correctly, and evaluation of the 

effect on the regulatory framework for 

its use, including in New Source Review 

permitting. CALPUFF version 5.8 has 

already gone through this 

comprehensive evaluation process and 

remains the EPA-approved version, and 

is thus the appropriate version for EPA’s 

BART determination for FCPP. 

Comment: Some commenters argued 

against the visibility metrics that EPA 

introduced in the BART proposal. One 

commenter noted that none of the 

metrics (percent improvement in dv 

impacts, cumulative changes in dv, and 

dv impacts scaled by the geographic 

area of the affected Class I area) is 

addressed in the BART rules, and 

posited that their introduction into the 

BART process is intended to inflate the 

estimated visibility benefits of the 

control options at FCPP. Regarding the 

percent improvement metric, the 

commenter stated that these values 

(unlike values of the haze index in dv) 

have no consistent relationship to the 

human perception of haze changes and 

no consistent relationship to changes in 

ambient visibility-impairing particle 

concentrations. 

Similarly, one of the owners of FCPP 

stated that cumulative change in dv is 

not an appropriate metric to describe 

visibility improvement and should be 

withdrawn. This commenter made a 

number of points which are briefly 

described here. The peak impact from a 

source occurs at different times in 

different Class I areas because a 

facility’s emissions cannot result in 

peak concentrations in all directions at 

once. Thus, this metric really does not 

represent a cumulative regional impact 

of the source (and hence the benefit of 

controls); rather it simply produces a 

mathematical summation of the peak 

impacts occurring at different times at 

various Class I areas. It is inappropriate 

to add improvements over all Class I 

areas. A 0.5 dv improvement in one 

Class I area and a 0.5 dv improvement 

in another area does not result in a 1 dv 

improvement—the improvement is a 0.5 

dv improvement, which occurs in two 

different locations. Any one observer 

would experience only a 0.5 dv 

improvement; he or she can only 

experience the visibility improvement 

in the Class I area being visited. 

Conversely, one environmental 

advocacy group commenter supported 

the use of a cumulative impact analysis. 

The commenter asserted that 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, particularly in cases such as 

FCPP where the source causes or 

contributes to visibility impairment at a 

significant number of Class I areas. The 

commenter stated that failing to account 

for a source’s cumulative impairment 

and the cumulative pollution control 

benefit would result in a failure to 

acknowledge the regional approach to 

reducing haze. 

Response: EPA believes that it is 

important to consider the visibility 

impact on multiple Class I areas. The 

goal of the visibility program is to 

remedy visibility impairment at all 

Class I areas. CAA 169A(a)(1). One 

approach to account for the benefits to 


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51632 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

21EPA notes that the baghouses on Units 4 and 

5 are assumed to provide a significant amount of 

control of sulfuric acid emissions, therefore, such 

slight increases in sulfuric acid emissions would 

not be expected on units that are not equipped with 

baghouses. 

all affected Class I areas is the 

cumulative ‘‘total dv’’ metric. EPA 

relied on the modeled impacts and 

benefits at each Class I area 

individually, the number of Class I areas 

affected, and also considered, but did 

not rely on, the sum of visibility impacts 

and benefits across all 16 Class I areas. 

Comment: Two commenters 

questioned EPA’s use of 0.5 dv as the 

threshold of a humanly perceptible 

change in visibility (citing 75 FR 64228). 

One commenter added that the 

establishment of a specific deciview 

threshold as a ‘‘bright line’’ to define 

whether a certain control will be 

imposed as BART is contrary to the 

intent of the BART rules and the 

objectives of the Regional Haze program, 

which require EPA to consider the cost 

of each control option in relation to the 

associated visibility benefit. 

One of the owners of FCPP expressed 

the belief that application of SCR at 

FCPP would result in no perceptible 

visibility improvement and therefore 

cannot be BART. 

Response: EPA disagrees with the 

commenters that the visibility benefit 

from the proposed BART controls is too 

small to warrant requiring the controls; 

in addition, EPA is not using a 

perceptibility threshold in this BART 

determination. EPA agrees that 

thresholds should not be considered a 

‘‘bright line’’ in making BART 

decisions. In the BART Guidelines, EPA 

described 1 dv as the threshold for an 

impact that ‘‘causes’’ visibility 

impairment, and 0.5 dv as a threshold 

for an impact that ‘‘contributes’’ to 

visibility impairment, for determining 

whether a source is subject to BART, 

though States were accorded discretion 

to use different thresholds (70 FR 39118, 

July 6, 2005; also 39120–39121). These 

thresholds do not apply to BART 

determinations for sources that have 

been found subject to BART; States or 

EPA could consider visibility impacts 

less than 0.5 dv to warrant BART 

controls. To the extent that the comment 

is questioning the BART eligibility of 

FCPP, EPA has already established that 

FCPP is BART eligible and the 

commenter did not provide evidence to 

the contrary. 

Even if the commenters are correct 

that 0.5 dv change is not perceptible, 

EPA noted that ‘‘[e]ven though the 

visibility improvement from an 

individual source may not be 

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) That is, 

impacts smaller than 0.5 dv do 

contribute to impairment. Conversely, 

an improvement of 0.5 dv or even less 

contributes to improvement in visibility 

impairment. As stated in the proposal, 

the modeled improvements in visibility 

are large enough to warrant requiring 

the proposed BART controls. While the 

actual improvements may be larger, 

from 0.6 to 2.8 dv, even as small an 

improvement as 0.5 dv is a contribution 

toward improving visibility, especially 

when the benefits at multiple Class I 

areas are considered. In conjunction 

with improvements from other sources, 

this will help and is necessary for 

progress toward the CAA goal of 

remedying manmade visibility 

impairment. 

Comment: One environmental 

advocacy group commenter stated that 

EPA underestimated visibility 

improvement from installing NOX

controls because it overestimated the 

production of sulfuric acid by the SCR 

and underestimated the amount of 

sulfuric acid removed downstream of 

the SCR. The commenter cited reports 

attached to the comments to argue that 

sulfuric acid does not limit SCR NOX

control efficiency. The reports also state 

that modeling shows that greater NOX

removal rates are not offset by sulfuric 

acid emissions but instead yield greater 

visibility improvements than those 

proposed by EPA. The commenter states 

that this would result in a significant 

visibility benefit from increasing the 

SCR NOX efficiency from 80 percent to 

90 percent and therefore concludes that 

a higher level of NOX control than 80 

percent should be determined BART. 

Response: EPA disagrees that we 

overstated the production of sulfuric 

acid from the SCR catalyst and 

underestimated the amount of sulfuric 

acid removed downstream of the SCR. 

In the TSD for our proposed BART 

determination, we estimated sulfuric 

acid emissions using the Electric Power 

Research Institute (EPRI) methodology 

and provided detailed explanations for 

all of the assumptions we applied (see 

TSD p. 55–59, 64–65, and 68). While we 

fully acknowledge and understand that 

the generalized EPRI methodology does 

not precisely represent true sulfuric acid 

emissions for a given facility, this 

method is a commonly used calculation 

methodology for estimating sulfuric acid 

emissions under a future operating 

scenario involving SCR. 

EPA assumed in our BART proposal 

that a 3+1 system (four layers of 

catalyst) would achieve 80 percent NOX

removal. Greater reduction efficiencies 

would likely require an additional layer 

of catalyst, which models indicate 

would increase sulfuric acid emissions. 

Based on the SO2 to SO3 conversion rate 

guarantee we received from Hitachi for 

its CX series catalyst (ultra-low 

conversion) of 0.167 percent per layer, 

the use of an additional catalyst layer 

would equal five layers of catalyst and 

a 0.835 percent conversion rate. EPA is 

not aware of SCR systems that use five 

layers of catalyst, and the addition of a 

fifth layer would also affect the cost and 

operation of the unit. 

Although EPA agrees that the 

modeling referenced by the commenter 

indicates greater visibility improvement 

from an SCR system achieving 90 

percent removal compared to 80 percent 

removal despite higher sulfuric acid 

emissions,21 EPA does not agree that 

this requires EPA to determine that a 

greater level of control is required as 

BART. The level of control 

recommended by the commenter is 

equivalent to those required as the Best 

Available Control Technology (BACT) 

for new facilities. As discussed in 

responses to other comments, the 

Regional Haze Rule requires a case-bycase BART determination, which need 

not be equivalent to BACT for new 

facilities. As discussed in our proposed 

BART determination and in our 

Supplemental proposal, given the boiler 

size and configuration at FCPP that limit 

use of combustion controls, and other 

considerations related to ash content of 

coal, EPA is finalizing its determination 

that 80 percent control is appropriate as 

BART for FCPP. 

F. Comments on BART Determinations 

1. Comments on the Proposed BART 

Determination for NOX

Comment: A number of commenters, 

including owners of FCPP, the Navajo 

Nation, and a utility industry 

association, assert that EPA’s BART 

analysis was inconsistent with its own 

regulations in that it did not give proper 

weight to the ‘‘presumptive BART’’ 

limits for NOX that it established for 

EGUs through notice-and-comment 

rulemaking (generally citing 70 FR 

39104, July 6, 2005). The commenters 

noted that these presumptive BART 

limits are based on the use of 


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Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 51633 

22 70 FR 39131. 

23 70 FR 39132. 

24 71 FR 60619. 25 70 FR 39158. 

combustion controls, and that EPA had 

considered and rejected establishing 

presumptive BART limits based on SCR. 

A brief summary of these comments 

follows. 

In establishing presumptive BART 

limits for NOX emissions from EGUs, 

EPA concluded that combustion 

control-based presumptive limits ‘‘are 

extremely likely to be appropriate for all 

greater than 750 MW power plants 

subject to BART’’ (a category that 

includes FCPP), that they are ‘‘highly 

cost-effective controls,’’ and that they 

‘‘would result in significant 

improvements in visibility and help to 

ensure reasonable progress toward the 

national visibility goal (citing 70 FR 

39131). Additionally, EPA has made 

clear that ‘‘the presumptions represent a 

reasonable estimate of a stringent case 

BART * * *’’ (citing 71 FR 60612, 

60619, Oct. 13, 2006). 

Commenters argue that EPA was not 

correct in stating in the proposed BART 

determination for FCPP that in setting 

presumptive BART limits, it ‘‘did not 

consider the question of what more 

stringent control technologies might be 

appropriately determined to be BART’’ 

(citing 75 FR 64226). Rather, EPA’s 2005 

rules were clear that the Agency had 

considered—and rejected—establishing 

presumptive BART limits based on SCR 

(citing 70 FR 39136). Thus, EPA 

established through rulemaking that 

SCR is not an appropriate basis for 

presumptive BART limits and that 

combustion controls should generally be 

deemed BART. 

Commenters also argue that a BART 

analysis must begin with and take into 

account the presumptive BART limits 

and EPA’s rationale for setting them. If 

a source is able to meet the limit 

through the application of combustion 

controls, there should be an exceedingly 

strong presumption that such controls 

constitute BART. 

Commenters state that EPA’s 

analytical approach disregarded the 

presumptive limits entirely. By using a 

top-down approach in which it started 

its analysis by evaluating SCR and then 

determined that SCR is BART for FCPP, 

EPA never undertook an assessment of 

combustion controls. 

Commenters further argue that in its 

BART analysis, APS demonstrated that 

each unit at FCPP can meet the 

presumptive BART limits through the 

application of advanced combustion 

control technologies. 

Under the BART rules, a deviation 

from presumptive BART, either 

upwards or downwards, is authorized if 

an alternative control level is justified 

based on ‘‘careful consideration of the 

statutory factors’’ (citing 70 FR 39131). 

Commenters argue that EPA did not 

carefully consider the BART factors and 

then conclude that an alternative to 

presumptive BART limits is 

appropriate. Instead, commenters state 

that EPA dismissed the presumptive 

BART limits before even considering the 

BART factors. 

Response: EPA disagrees with the 

commenters’ assertions that we did not 

give sufficient weight to presumptive 

BART NOX limits, or that the BART 

determination for FCPP was performed 

in a manner inconsistent with the RHR. 

As noted in other responses in this 

document, the presumptive NOX limits 

established in the BART Guidelines are 

determined to be cost effective and 

appropriate for most units. The 

establishment of presumptive BART 

limits, and the corresponding 

technology upon which those limits are 

based, does not preclude States or EPA 

from setting limits that differ from those 

presumptions. Indeed, the five statutory 

factors enumerated in the BART 

Guidelines provide the mechanism for 

establishing different requirements. We 

note the RHR states: 

States, as a general matter, must require 

owners and operators of greater than 750 MW 

power plants to meet these BART emission 

limits. We are establishing these 

requirements based on the consideration of 

certain factors discussed below. Although we 

believe that these requirements are extremely 

likely to be appropriate for all greater than 

750 MW power plants subject to BART, a 

State may establish different requirements if 

the State can demonstrate that an alternative 

determination is justified based on a 

consideration of the five statutory factors.22

The RHR also states: 

If, upon examination of an individual EGU, 

a State determines that a different emission 

limit is appropriate based upon its analysis 

of the five factors, then the State may apply 

a more or less stringent limit.23

Therefore, the presumptive emission 

limits in the BART Guidelines are 

rebuttable.24 The presumptive emission 

limits apply to power plants with a total 

generating capacity of 750 MW or 

greater insofar as these sources are 

required to adopt emission limits at 

least as stringent as the presumptive 

limits, unless after considering the five 

statutory factors, the State determines 

that the presumptive emission limits are 

not appropriate. Moreover, the RHR and 

BART Guidelines do not exempt States 

from a five factor BART analysis, and 

that BART analysis may result in a 

determination of BART emission limits 

that are more or less stringent than the 

presumptive emission limits for subject 

to BART sources. The RHR states: 

For each source subject to BART, 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.25

EPA’s site-specific five-factor analysis 

performed for FCPP demonstrates that, 

in considering the expected remaining 

useful life of FCPP and the existing 

controls, SCR is cost effective, results in 

the most visibility improvement of all 

feasible control technologies, and does 

not cause energy or non-air quality 

environmental impacts that warrant its 

elimination as the top control option. As 

a result, regardless of the 

appropriateness of SCR as a control 

technology for most units on a national 

scale, or the extent to which EPA 

considered SCR in establishing the 

presumptive limits, the site-specific 

five-factor analysis performed for FCPP 

justifies a different NOX BART limit 

than the presumptive NOX BART limit. 

EPA disagrees with commenters’ 

assertions that we disregarded 

presumptive NOX BART limits. 

Although we do not rely upon the 

numerical values of the presumptive 

NOX limits listed in the BART 

Guidelines, the technological basis for 

presumptive NOX BART limits, such as 

the use of combustion control 

technology, boiler type, and coal type, 

were considered in the site-specific fivefactor analysis. Combustion control 

technology was specifically considered 

as a potential retrofit technology, and 

costs and visibility improvements 

associated with combustion controls 

were calculated and included in the 

TSD in order to provide a comparison 

to other NOX control technologies. 

In addition, EPA disagrees that the 

rule directs authorities to consider noncombustion control technology only 

when presumptive limits cannot be met 

using combustion control technology. 

While a BART determination deviating 

from presumptive BART must be 

supported by the results of the fivefactor analysis, the rule does not restrict 

the ability of States (or in this case, 

EPA) to initiate a five-factor analysis. 


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51634 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

Comment: Two of the owners of FCPP 

and the Navajo Nation asserted that 

advanced combustion controls 

constitute BART for FCPP because such 

controls will result in meaningful 

emission reductions and will contribute 

to reasonable progress toward visibility 

improvement. 

One of these commenters noted that 

EPA has ‘‘determined that combustion 

controls are not likely to be effective 

control technologies at FCPP’’ (citing 75 

FR 64226). The commenter asserted that 

EPA’s determination is based on 

superficial analysis and is mistaken. 

This commenter cited its comments 

which contain a detailed analysis of the 

use of LNB and OFA on FCPP’s units. 

According to the commenter, this 

analysis confirms that the use of 

advanced combustion controls on the 

five units at FCPP will reduce plantwide NOX emissions by 34 percent and, 

for those units that are subject to 

presumptive BART limits, the 

reductions more than satisfy the 

presumptive limits in the BART rules. 

Two of the commenters added that 

considering that neither SCR nor 

advanced combustion controls will 

produce humanly perceptible visibility 

improvements in the nearby Class I 

areas, control technologies that result in 

limits that meet presumptive BART 

should be determined BART and that 

these reductions will contribute to 

reasonable progress toward the national 

visibility goal. 

The Navajo Nation stated that a 

phased approach to emissions controls 

at FCPP, beginning with combustion 

controls, is fully consistent with both 

the CAA and the RHR, and is the 

approach that the EPA should take as a 

prudent trustee of the Navajo Nation. 

This commenter added that the BART 

component of the CAA and RHR was 

meant to provide for a measured 

response to emissions from aging power 

plants; thus, requiring the most 

expensive controls is inconsistent with 

the law and regulations governing the 

BART process. The commenter also 

asserted that requiring a power plant 

over which EPA has exclusive 

jurisdiction to bear a greater regulatory 

burden than similarly situated plants 

regulated by the States is contrary to the 

purposes of the Act, the RHR, and to the 

economic interests of the Navajo Nation. 

Response: EPA disagrees with the 

comment that advanced combustion 

controls on all five units at FCPP will 

reduce plant-wide NOX emissions by 34 

percent. APS has provided conflicting 

information regarding whether or not 

advanced combustion controls will be 

effective at significantly reducing NOX

emissions at FCPP. As outlined in the 

TSD for our 2010 BART proposal, we 

have concluded that combustion 

controls will not be effective at 

significantly reducing NOX emissions at 

FCPP. 

EPA disagrees that installation of SCR 

will not result in humanly perceptible 

impacts. As noted above, EPA’s 

visibility modeling of the impacts of 

SCR installation at FCPP indicates 

visibility improvements at the sixteen 

nearby Class I areas ranging from 0.9 to 

2.5 dv. 

EPA agrees with certain aspects of 

comments from the Navajo Nation 

regarding a phased implementation 

strategy to attaining national visibility 

goals. In 40 CFR 51.308(f), States are 

required to revise their regional haze 

implementation plans every ten years, 

which is a process that involves 

evaluating their ability to attain 

reasonable progress goals and 

potentially updating their long-term 

strategy for regional haze. The periodic 

revision requirement described in 40 

CFR 51.308(f), however, does not extend 

to the implementation plan for BART 

requirements. The phased approach 

described by the Navajo Nation has 

certain benefits, and a phased approach 

is incorporated into the alternative 

emission control strategy. 

Comment: Two federal agencies and 

two groups of environmental advocacy 

groups assert that the NOX emission 

limit for the units at FCPP should be 

0.05 lb/MMBtu based on the capabilities 

of SCR. The federal agency commenters 

stated that, given that BART is meant to 

achieve the best possible emissions 

reductions, EPA should not base its 

emission limits on the ‘‘minimum 

reduction expected from SCR, estimated 

by Hitachi Power Systems America’’ 

(citing the TSD for our proposed 

rulemaking) because real-world 

application of SCR indicates that lower 

NOX emission limits are routinely 

reached. Regarding the emission limits 

for Units 4 and 5, the commenters noted 

that of the 20 cell burners with SCR in 

2010, 12 had lower NOX limits than 

proposed by EPA for FCPP, with 3 EGUs 

at less than 0.06 lb/MMBtu. Based on 

this information, the original APS BART 

analysis of SCR at 0.06 lb/MMBtu 

(annual and 24-hour average), and the 

‘‘common knowledge’’ that SCR can 

achieve at least 90 percent reduction, 

the commenters concluded that the 

installation of SCR at FCPP is capable of 

reducing annual NOX emissions by 90 

percent to 0.05 lb/MMBtu on an annual 

average basis. 

One of the federal agency commenters 

specifically refuted EPA’s rationale in 

the supplemental proposal for its 80 

percent SCR efficiency estimate. The 

main points are summarized below. 

EPA took into account the 

degradation of the SCR catalyst over its 

lifetime and calculated the emission 

limit to reflect the capability of the 

catalyst just prior to its replacement on 

a 3-year cycle. Commenters assert this 

issue is not a technical limitation on 

SCR, but is simply a cost item to be 

accounted for in the proper design and 

operation of the SCR. 

EPA stated that pursuing NOX control 

efficiencies of greater than 80 percent on 

Units 4 and 5 is limited by formation of 

H2SO4 from the SCR catalyst because 

the additional layers of catalyst needed 

to increase NOX control efficiency 

would increase emissions of H2SO4, 

most affecting nearby Mesa Verde 

National Park. The commenter gave 

several reasons why this argument is 

incorrect. 

EPA stated that the high ash content 

(approximately 25 percent) of the coal 

burned at FCPP may adversely affect the 

capability of SCR to reach the highest 

end of the control efficiency range 

without the use of additional layers of 

catalyst or more frequent catalyst 

replacement. According to the 

commenter, this is not consistent with 

previous EPA proposals for SCR 

emissions limits at facilities that use 

coal with similar ash content. Unless 

the FCCP ash contains some unusual 

catalyst poison, the 25 percent ash 

content is not a technical feasibility 

issue that would affect SCR 

effectiveness, but is a matter of proper 

SCR design, operation, and 

maintenance. 

This federal agency commenter also 

asserted that NOX BART for Units 1–3 

should be 0.05 lb/MMBtu on an annual 

basis. The commenter noted that 

unsuccessful attempts to reduce NOX

emissions at FCPP with combustion 

controls occurred over a decade ago 

when this technology was not as fully 

developed as now, and pointed out that 

APS’S BART analysis concluded that 

such controls are technically feasible 

and would reduce NOX emissions 

significantly. 

The commenter evaluated Clean Air 

Markets Division (CAMD) data for 

2000—2009 and found 33 dry-bottom, 

wall-fired boilers with NOX emissions 

rates similar to FCPP Units 1–3 (0.6— 

0.8 lb/MMBtu) that had been reduced to 

0.4 lb/MMBtu or less by application of 

modern combustion controls. The 

commenter asserted that because the 

typical approach is to first reduce NOX

emissions by combustion controls 

before adding SCR, these real-world 

CAMD data support the belief that using 

combustion controls and SCR could 


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Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 51635 

26See items (2 and 3) in collection of documents 

titled ‘‘Public Comment_8 Environmental Groups 

(Barth)_Letter 5–2–11’’. Document Number EPA– 

R09–OAR–2010–0182. 

27See the Response to Comments, Section 8.1 in 

the docket for this final rulemaking. 

28See the Response to Comments Section 8.1 in 

the docket for this final rulemaking. 

reduce NOX at FCPP Units 1–3 to 0.05 

lb/MMBtu on an annual basis. 

The commenter asserted that modern 

SCRs are routinely designed and 

operated to achieve 90 percent NOX

control and that based on this wellaccepted industry standard, NOX

control of at least 90 percent is BART. 

The commenter also contended that 

LNB and OFA are feasible for all five 

units at FCPP. The commenter rejected 

EPA’s statement that it would be 

difficult to retrofit Units 4 and 5 with 

modern LNB technology (citing 76 FR 

10534) and pointed out that the operator 

of FCPP has stated that the combination 

of LNB and OFA is technically feasible 

for these units. The commenter 

indicated that the use of LNB/OFA on 

Units 1–5 would reduce NOX emissions 

by 27 to 46 percent, making SCR with 

a removal efficiency of 90 percent 

sufficient to satisfy a 0.05 lb/MMBtu 

NOX limit. 

The commenter stated that a 0.05 lb/ 

MMBtu limit is consistent with EPA’s 

determinations elsewhere, such as for 

the San Juan Generating Station 

(proposed limit of 0.05 lbs/MMBtu, 30- 

day rolling average) and for Desert Rock 

(final permit limit of 0.035 lbs/MMBtu, 

365-day rolling average). According to 

the commenter, an EPA-issued permit 

containing a lower NOX limit creates a 

presumption of technical feasibility for 

purposes of BART. Commenters also 

argued that emission limits should be 

based on a 30-boiler operating day 

rolling average. 

Response: EPA disagrees with the 

commenter’s assertion that emission 

limits associated with BART must meet 

the lowest emission rate achieved with 

that technology at any coal-fired power 

plant. The Regional Haze Regulations at 

40 CFR § 51.308(e)(1)(ii)(A) state 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 * * * 

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’’, 

(70 FR 39166) and that ‘‘[t]o complete 

the BART process, you must establish 

enforceable emission limits that reflect 

the BART requirements * * *’’ (70 FR 

39172). The five-factor BART analysis 

described in the Guidelines is a case-bycase 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. The BART Guidelines 

and the Regional Haze Rule do not 

preclude selection of the maximum 

level of control achieved by a given 

technology as BART, however, the 

emission limit set to reflect BART must 

be achievable by the specific source and 

should be determined based on 

consideration of site-specific factors. 

Therefore, limits set as Best Available 

Control Technology (BACT) during 

Prevention of Significant Determination 

(PSD) review (e.g., Desert Rock) may 

provide relevant information, but 

should not be construed to 

automatically represent the most 

appropriate BART limits representative 

of a given technology for every facility. 

While some commenters asserted that 

combustion controls would be feasible 

upstream of SCR to further reduce NOX

emissions to meet a limit of 0.05 lb/ 

MMBtu, in its comment letter, the 

National Park Service (NPS) agreed with 

EPA that the addition of combustion 

controls may ‘‘not (be) worth the small 

incremental reduction in NOX

emissions’’. As discussed in the TSD for 

our proposed BART determination, 

because additional combustion controls 

at FCPP would not achieve significant 

reductions in NOX and may cause 

operability issues for the boilers, EPA 

determined that SCR, without the 

addition of new combustion controls, is 

BART for FCPP. 

Several environmental organizations 

argued that a 30-day rolling average 

emission limit of 0.05 lb/MMBtu should 

be determined BART for FCPP and 

provided supporting documentation.26

EPA disagrees that an emission limit set 

in association with a BART 

determination must represent the lowest 

achieved emission rate from the best 

performing unit using that technology. 

EPA notes that, after further 

examination 27 of the commenters’ 

supporting documentation, the 

maximum 30-day calendar average 

emission rates for the 17 top performing 

units exhibited significant variability 

(0.056—1.1 lb/MMBtu), even though the 

annual average emission rates listed are 

all below 0.07 lb/MMBtu. 

In its comments, the National Park 

Service provided examples of 3 cell 

burner boilers currently equipped with 

SCR: Cardinal Units 1 and 2 and Belews 

Creek Unit 1. Based on NOX data from 

the Clean Air Markets Division (CAMD), 

EPA notes that over 2009–2011, NOX

emissions from Cardinal Unit 1 showed 

an increasing trend. Cardinal Unit 2 

shows a similar pattern as Unit 1, with 

an increasing trend in minimum and 

maximum 30-day calendar averages. 

Belews Creek 1 also showed a similar 

pattern of generally increasing 

minimum and maximum 30-day 

calendar average emission rates. 

Although commenters are correct in 

stating that the best performing units 

can achieve 30-day rolling emission 

rates of 0.05 lb/MMBtu or lower, CAMD 

data show significant variability in 

emission rates, both over time for a 

given unit, and between the best 

performing units. Some of this 

variability may be related to catalyst 

aging, or may be related to the 

participation of these units in trading 

programs (therefore these units operate 

without an absolute limit on individual 

boilers). Regardless of the cause of this 

variability, EPA notes that significant 

variability over a 30-day average, even 

among the best performing units, does 

exist, and EPA disagrees that an 

emission limit set in association with a 

BART determination must represent the 

lowest rate achieved on 30-day rolling 

average basis from the best performing 

unit using that technology. 

EPA examined the most recent Clean 

Air Markets Division (CAMD) emission 

rate data for 12 cell burner boilers 

currently operating with SCR over 

2009–June 2011.28 In order to determine 

what might be an appropriate percent 

reduction to represent all cell burner 

boilers currently using SCR, we 

calculated the average percent reduction 

from the highest emission rate achieved 

over all 12 units. The percent reduction 

achieved from the monthly calendar 

average emission rate over 2009–June 

2011 from the 12 units ranged from 48 

to 90 percent, with an average value of 

78 percent. 

Commenters claim that emissions of 

sulfuric acid mist and the high ash 

content of coal used by FCPP, and 

considerations of catalyst life are not 

barriers to achieving higher NOX

reduction efficiencies than proposed by 

EPA. EPA disagrees with comments that 

our statement regarding the impact of 

additional layers of catalyst on 

increasing sulfuric acid emissions is 

unsupported. EPA understands from our 


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51636 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

29See page 4–3 of report titled ‘‘PNM BART 

Report for SJGS_final to PNM_June 18, 2007.pdf’’ in 

the docket for this final rulemaking. Pre-consent 

decree emission rates on Units 1–4 at SJGS ranged 

from 0.42–0.45 lb/MMBtu. Post-consent decree 

emission limits for those units were 0.30 lb/MMBtu. 

30 Desert Rock has not been constructed. EPA 

requested a voluntary remand of the Desert Rock 

PSD permit in 2009 to incorporate new applicable 

requirements. The developers of Desert Rock have 

not yet submitted a revised PSD application to EPA. 

correspondence with Hitachi Power 

Systems America that each layer of 

catalyst used results in an incremental 

increase in the conversion rate of SO2 to 

SO3. The EPRI method used for 

calculating sulfuric acid requires the 

input of a SCR catalyst oxidation rate. 

This oxidation rate varies depending on 

catalyst type and number of layers used. 

For the ultra low SO2 to SO3 oxidation 

catalysts offered by Hitachi, each layer 

contributed roughly 0.167 percent 

conversion, with three layers totaling 

0.5 percent. The use of an additional 

layer, such as in a 3+1 system, would 

thus increase the conversion rate to 

nearly 0.7 percent when all four catalyst 

layers are in operation. Further NOX

reductions achieved from the addition 

of a 5th layer of catalyst would likely 

exacerbate pluggage and back-pressure 

concerns related to the ash content of 

the coal and may affect cost and 

operation of the unit. Commenters have 

not submitted information to refute this. 

The ash content of coal has an 

important effect on the effectiveness of 

SCR because high ash content in coal 

can cause pluggage and catalyst erosion 

and thus reduce available catalyst area 

and activity for NOX reduction. 

Commenters point to San Juan 

Generating Station (SJGS) and Desert 

Rock as facilities with lower SCR-based 

NOX emission limits that use high ash 

content coal. EPA Region 6 recently 

finalized a FIP for SJGS with a limit of 

0.05 lb/MMBtu, representing an 83 

percent reduction in NOX emissions. 

The emission limit EPA Region 6 set for 

SJGS is lower than the limit we set for 

FCPP because SJGS uses a different 

boiler type than FCPP and modern 

combustion controls have already been 

installed and have reduced NOX

emissions at SJGS by 29–33 percent.29

EPA has determined that because Units 

4 and 5 at FCPP are cell burner boilers, 

modern combustion controls would not 

significantly reduce NOX emissions 

from FCPP. Even though the emission 

limit differs, the reduction efficiency 

from the installation and operation of 

SCR at FCPP and SJGS are generally 

consistent, particularly when 

considering the similarly high ash 

content of coal (greater than 20 percent) 

used at both facilities. In 2008, EPA 

Region 9 issued a pre-construction 

Prevention of Significant Deterioration 

(PSD) permit to allow construction of a 

new coal-fired power plant on the 

Navajo Nation, known as the Desert 

Rock Energy Facility (Desert Rock).30 If 

constructed, Desert Rock would have 

used the same coal as FCPP from the 

BHP Navajo Mine and the final PSD 

permit set a NOX limit of 0.05 lb/ 

MMBtu (on a rolling 365-day average). 

Commenters argue that if Desert Rock 

was required to meet a limit of 0.05 lb/ 

MMBtu using the same coal as FCPP, 

the ash content should not hinder FCPP 

from achieving similarly low NOX

emission rates. EPA notes that if 

constructed, Desert Rock would have 

been a new, state-of-the-art facility 

specifically designed with boiler 

characteristics, combustion controls, 

and post-combustion controls to meet 

the Best Available Control Technology 

(BACT) requirements for numerous 

criteria and non-criteria pollutants. 

FCPP is an existing, over 40-year-old 

power plant. The Regional Haze Rule 

requires a case-by-case BART (best 

available retrofit technology) 

determination, which need not be 

equivalent to BACT for new facilities. 

Based on the significant 30-calendar 

day average variability exhibited by the 

top performing units cited by 

commenters, and the variability in 30- 

calendar day average and the 2009–June 

2011 30-calendar day average percent 

NOX reduction of 78 percent exhibited 

by 12 cell burner boilers equipped with 

SCR, EPA continues to affirm that a 

limit representing an 80 percent 

reduction in NOX emissions reflects 

what is achievable using the technology 

determined as BART for FCPP. 

Comment: One of the owners of FCPP 

stated a willingness to support a NOX

emission limit of 0.098 lb/MMBtu for 

Units 4 and 5 under the alternative 

proposal, but only in the context of an 

alternative emission reduction strategy 

that includes resolution of the related 

issues. 

The Navajo Nation similarly endorsed 

the proposed 80 percent reduction in 

NOX emissions from Units 4 and 5, with 

a limit of 0.098 lb/MMBtu, under the 

supplemental proposal, based on the 

site-specific parameters at FCPP. 

Response: EPA agrees that the 

appropriate limit for Units 4 and 5 

under the alternative strategy is 0.098 

lb/MMMtu (based on a rolling average 

of 30 successive boiler operating days). 

The final rule reflects this limit. 

Comment: One of the owners of FCPP 

opposed EPA’s proposal to ‘‘phase in’’ 

NOX controls at FCPP under a 

traditional BART FIP, commencing 3 

years from the date the FIP becomes 

effective. The commenter asserted that 

this proposal does not afford adequate 

time to properly design, engineer, and 

construct the controls before the 

compliance deadline. 

Response: EPA partially agrees with 

this comment. We revised the BART 

compliance date for one 750 MW unit 

to within 4 years from the effective date 

of this final rule. The remaining 750 

MW unit and Units 1–3 must meet a 

compliance date of within 5 years of the 

effective date of the final rule. The 

revised compliance time within 4 and 5 

years allows time for design, engineer, 

and construct controls. 

Comment: One environmental 

advocacy group stated that the proposed 

plant-wide BART limit of 0.11 lb/ 

MMBtu across all five FCPP units 

violates Executive Order 12898 on 

environmental justice. Specifically, the 

commenter asserted that given the 

significant differences in pollution 

control systems among FCPP’s five 

units, allowing a plant-wide average 

could create pollution ‘‘hotspots’’ with 

respect to co-pollutants. As an example, 

the commenter noted that while Units 4 

and 5 have baghouses, Units 1–3 use 

less efficient venturi scrubbers for 

control of sulfur dioxide, particulate 

matter, and mercury. The commenter 

asserted that the plant-wide average 

limit for NOX would allow increased 

emissions from Units 1–3 in the event 

of a temporary outage or reduced output 

from one or both of the larger units. The 

commenter stated that while this may 

not increase the total NOX emissions 

from the plant, it would increase the 

amount of mercury and other toxic copollutants emitted into the surrounding 

community, which is a low-income 

community of color. 

Response: EPA disagrees with the 

commenter that a plant-wide BART 

limit of 0.11 lb/MMBtu across all five 

FCPP units violates Executive Order 

12898 on environmental justice. This 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income population 

because it increases the level of 

environmental protection for all affected 

populations in the area including any 

minority or low-income population. 

The commenter is correct that in the 

event of a temporary outage or reduced 

output from Unit 4 or 5 the operator 

could continue to operate FCPP units 1– 

3 under the original BART proposal 

provided that they maintain compliance 

with the plant-wide emission limit of 

0.11 lb/MMBtu for NOX. In order to 

maintain compliance with the plantwide emission limit, Units 1–3 would 

have to operate at a lesser capacity than 


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Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 51637 

31See 77 FR 9304, February 16, 2012. 

they would normally operate if Unit 4 

and 5 were functioning because units 1– 

3 have higher NOX emission rates than 

Units 4 and 5. The NOX emission rates 

from Units 1–3 with SCR, based on 80 

percent control of current emission rates 

would be 0.16, 0.13, and 0.12 lb/MMBtu 

respectively which are higher than the 

proposed plant-wide emission limit. 

Therefore, to maintain compliance with 

the plant-wide NOX emission limit 

(which is based upon a 30-calendar day 

rolling average), Units 1–3 would have 

to operate at a reduced capacity in any 

30-day period in which Units 4 and 5 

are operating a reduced capacity, so as 

to maintain the balance among the five 

units. This reduced capacity would 

result in an overall lower rate of 

emission for mercury and other copollutants from Units 1–3. Therefore, 

there would be no increased emissions 

of mercury or other co-pollutants and no 

‘‘hot-spots’’ or disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income population. 

2. Comments on the Proposed BART 

Determination for PM 

Comment: One of the owners of FCPP 

asserted that the existing controls at 

FCPP constitute BART for PM 

emissions. The commenter contended 

that the impact of PM controls on the 

visibility in the neighboring Class I 

areas would be ‘‘vanishingly small’’ 

while the cost would be ‘‘exorbitant’’ 

(resulting in cost effectiveness ranging 

from $51,500–$148,659 per ton reduced 

and from $1.4 billion–$3.7 billion per 

dv improvement). 

The Navajo Nation stated that EPA 

acknowledged the high incremental cost 

of new PM controls on Units 1–3 (citing 

75 FR 64230), yet justified the cost 

effectiveness of baghouses by 

comparison with similar retrofit projects 

in EPA Region 9. This commenter 

asserted that EPA failed to properly 

evaluate the costs associated with 

installation of baghouses using sitespecific parameters, thereby deviating 

from the BART Guidelines. The 

commenter asserted that continued 

operation of venturi scrubbers to meet 

emission limits of 0.03 lb/MMBtu and 

an opacity limit of 20 percent satisfies 

BART for Units 1–3. 

The Navajo Nation expressed support 

for the supplemental proposal to require 

a PM emission limit of 0.015 lb/MMBtu 

and 10 percent opacity limit on Units 4 

and 5. The commenter presumed that 

FCPP can readily meet these standards 

prior to installation of SCR since the 

limits can be achieved with the existing 

baghouses. 

Regarding the EPA’s proposed 10 

percent opacity standard for each unit, 

two of the owners of FCPP stated that 

the EPA has not specified any costs or 

predicted any improvement in visibility 

that would result from such limits. The 

commenters asserted that without such 

basis, the EPA cannot justify the 

proposed opacity limits. 

Response: As stated in our proposed 

BART determination for PM, the 

existing venturi scrubbers on Units 1–3 

at FCPP do not constitute BART. In our 

proposed BART determination for 

FCPP, EPA proposed a PM emission 

limit for Units 1–3 that can be achieved 

through the installation of any of four 

different PM control options. At the 

time of our BART proposal, the MATS 

Rule for electric utility steam generating 

units had not yet been proposed, nor 

had APS suggested its alternative 

emission control strategy to close Units 

1–3 in lieu of complying with BART for 

NOX. Because the final MATS rule has 

been issued 31 and sets filterable PM and 

mercury limits that would be applicable 

to the units at FCPP, and because EPA 

is finalizing this rule to allow APS to 

either comply with the alternative 

emission control strategy or BART for 

NOX, EPA is determining that it is not 

necessary or appropriate at this time to 

finalize our proposal to set new PM 

limits for Units 1–3. 

Regarding our proposed BART 

determination for PM for Units 4 and 5, 

we are finalizing the proposed 0.015 lb/ 

MMBtu emission limit based upon the 

proper operation of the existing 

baghouses. However, we have 

determined based on the comments we 

received from the operator of FCPP that 

it is not necessary or appropriate to take 

final action on the proposed 10 percent 

opacity limit. We have determined that 

imposing a 10 percent opacity limit will 

not provide greater assurance that Units 

4 and 5 at FCPP are meeting the PM 

emission limit of 0.015. We have 

determined previously that a 20 percent 

opacity limit is sufficient to ensure the 

PM emission limit is being continuously 

met. The 10 percent opacity limit was 

generally supported by the Navajo 

Nation and environmental groups. EPA 

has promulgated some recent rules for 

electric generating units that have 

retained a 20 percent opacity standard 

rather than reducing that limit to 10 

percent. Specifically, EPA’s revised the 

New Source Performance Standard for 

large electric generating units at 40 CFR 

Part 60, Subpart Da, to lower the PM 

emission limit for new units to 0.09 lb/ 

MMBtu for gross energy output or 0.097 

lb/MMBtu for net energy output. For 

existing units that reconstruct or 

modify, Subpart Da establishes an 

emissions limit of 0.015 lb/MMBtu. For 

both standards, EPA retained a 20 

percent opacity standard as being 

sufficient to ensure compliance with 

either the 0.090 (0.097) lb/MMBtu or 

0.015 lb/MMBtu PM emission limit. 

EPA’s MATS rule, which was finalized 

just a few months ago, also retained a 20 

percent opacity standard as being 

sufficient to ensure compliance with the 

PM emission limit that will be required 

for electric generating units subject to 

that rule. 

The importance of the opacity limit is 

that a certain percentage opacity is an 

instantaneous demonstration that a unit 

is in compliance with its PM emission 

limit. If a unit does not install and 

operate a PM continuous emissions 

monitor, then EPA ensures compliance 

with the PM emission limit by requiring 

an episodic source test. For the periods 

between episodic source testing, EPA 

can reasonably assure continuous 

compliance with the PM emission limit 

by observing that the unit’s stack 

emissions do not exceed a set opacity. 

EPA’s recent rulemakings have 

determined that 20 percent opacity is 

sufficient to ensure compliance with a 

PM emission limit lower than the 

emission limit we have determined is 

BART for Units 4 and 5. Accordingly, 

EPA is determining the 20 percent 

opacity limit that we promulgated in 

our 2007 FIP for FCPP as being adequate 

to ensure continuous compliance with 

the PM BART limit or 0.015 lb/MMBtu. 

EPA concludes that this change is a 

logical outgrowth of the comments 

received on the proposal. 

Comment: One commenter indicated 

that EPA has proposed a BART limit 

only for PM, which appears to be only 

filterable particulate matter. The 

commenter asserted that the BART 

guidelines specify that BART should be 

evaluated and defined for both PM10

and PM2.5 (citing 40 CFR part 51, 

Appendix Y, section IV.A) and, 

consequently, that EPA must evaluate 

and define BART limits for both PM10

and PM2.5. The commenter also asserted 

that as part of the PM2.5 BART 

determination, EPA must impose 

emission limits on condensable 

particulate matter, which is typically in 

the size range of 2.5 micrometers or 

smaller. Thus, the commenter stated 

that in addition to a filterable PM BART 

limit, EPA should impose a BART limit 

on total PM2.5. 

One public interest advocacy group 

supported EPA’s proposal and 

supplemental proposal to require a PM 

limit and a 10 percent opacity limit on 

Units 4 and 5. The commenter indicated 


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51638 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

32See document titled: ‘‘TSD ref. [2–3, 95] FCPP_

BART_Scenarios_Emissions_EPA_Proposal.xlsx’’ in 

the docket for this proposed rulemaking at EPA– 

R09–OAR–2010–0683–0017. 

that these limits should become 

effective prior to SCR installation, 

regardless of whether the BART or 

alternative emission control plan is 

implemented. 

Response: EPA disagrees with the 

commenters’ recommendation that the 

condensable fraction must be included 

in the PM BART limits. EPA has 

previously outlined our rationale for 

why an H2SO4 limit is not appropriate 

at this time (it will be addressed through 

the pre-construction permitting process 

if needed) and EPA expects that H2SO4

will be the main component of 

condensable PM that would be expected 

from a coal-fired EGU with an SCR. 

EPA agrees with commenters that PM 

limits on Units 4 and 5 should become 

effective prior to SCR installation, as 

Units 4 and 5 generally already meet the 

0.015 lb/MMBtu limit.32 EPA is 

finalizing a compliance date for PM 

emission limits on Units 4 and 5 to be 

within 6 months after restart following 

the next scheduled major outages in 

2013 and 2014. As discussed 

previously, EPA has determined that 

finalizing the proposed opacity limit of 

10 percent on Units 4 and 5 is not 

necessary or appropriate at this time. 

3. Comments on BART for SO2

Comment: Some commenters stated 

that SO2 BART should be required for 

FCPP, while one commenter simply 

noted that FCPP is subject to BART for 

SO2. One federal agency commenter 

stated that FCPP is subject to BART for 

SO2. The commenter stated that Units 4 

and 5 should be able to meet a limit of 

0.12 lb/MMBtu on an annual average 

basis by upgrading the existing 

scrubbers. 

One set of environmental advocacy 

groups discussed the Regional Haze 

rules, the TAR, and the SO2 emissions 

from FCPP and concluded that EPA is 

under a legal obligation to conduct a 

BART analysis for SO2 emissions from 

FCPP and, to the extent EPA has failed 

to make a finding that it is ‘‘necessary 

or appropriate’’ to regulate SO2

emissions from the FCPP, such a failure 

is arbitrary, capricious, and not 

supported by the administrative record. 

According to the commenter, EPA 

argues that FCPP’s current SO2

emissions limits are ‘‘close to or 

equivalent’’ to the limit that would be 

established under BART. The 

commenter asserted that this conclusion 

is arbitrary and capricious because EPA 

has failed to undertake any scientific or 

technical analysis to support its 

conclusion. 

A public interest advocacy group 

stated that the SO2 limits need to be 

tightened for FCPP to further reduce 

visibility impairment and to reduce the 

acidification of rainfall caused by the 

formation of H2SO4. The commenter 

stated that because the damaging effects 

of H2SO4 in precipitation on ancestral 

Puebloan sandstone dwellings and 

pictographs are not fully understood, it 

is disappointing for the FCPP proposals 

not to address SO2. 

Response: EPA finalized a FIP in May 

2007 that required significant SO2

emissions reductions from FCPP and 

established continuous SO2 emissions 

limits for FCPP. See 72 FR 25698 (May 

7, 2007). The 2007 FIP required FCPP to 

increase the removal efficiency of its 

SO2 emissions controls from 72 percent 

to 88 percent, resulting in an SO2

emissions reduction of approximately 

22,000 tons per year. EPA had proposed 

this FIP in September 2006. The 2006 

proposed FIP stated that ‘‘EPA believes 

that the SO2 controls proposed today for 

FCPP are close to or the equivalent of 

a regional haze BART determination of 

SO2. This takes into consideration the 

early reductions this action will achieve 

and the modification to the existing SO2

scrubbers.’’ 72 FR 25700. In finalizing 

that rulemaking in the 2007 FIP, EPA 

stated that it was exercising its authority 

pursuant to Section 49.11 of the TAR to 

implement measures that are necessary 

or appropriate to protect air quality in 

Indian country. Id. EPA determined that 

the SO2 emissions reductions would be 

federally enforceable as soon as the 

2007 FIP was finalized, which would be 

potentially five years before EPA could 

achieve enforceable SO2 emissions 

reductions through making a BART 

determination. See id. EPA also 

considered the Navajo Nation’s request 

for EPA to establish enforceable SO2

emissions reductions immediately that, 

in the opinion of the Navajo Nation, 

‘‘appear[] to be equivalent to BART.’’ Id. 

Therefore, EPA’s determination on this 

issue in finalizing the 2007 FIP was 

‘‘that it is neither necessary nor 

appropriate at this time to undertake a 

BART determination for SO2 from FCPP 

given the timing of the substantial SO2

reductions resulting from this FIP.’’ Id. 

In addition, we stated that ‘‘given that 

the SO2 controls for FCPP immediately 

achieve significant reductions in SO2

comparable to what could ultimately be 

achieved through a formal BART 

determination, EPA believes that it will 

not be necessary or appropriate to 

develop a regional haze plan to address 

SO2 for the Navajo Nation in the near 

term.’’ Id. 25700–701. Both APS, as 

operator of FCPP, and Sierra Club 

sought judicial review of our 2007 FIP. 

The comments on this action 

essentially repackage the comments we 

received and provided a response for on 

the 2007 FIP. The comments have not 

presented any new facts or legal 

considerations that have arisen or 

changed since we responded to 

comments requesting a BART 

determination for SO2 in 2007. 

4. Other Comments on BART 

Comment: One group of 

environmental advocacy groups stated 

that as an alternative to a condensable 

PM2.5 limit, EPA could set limits on the 

pollutants which form condensable 

PM2.5, such as sulfuric acid mist (H2SO4) 

and ammonia, as EPA proposed as part 

of the San Juan Generating Station 

(SJGS) BART rulemaking (citing 76 FR 

503–4, January 5, 2011). If EPA adopts 

this approach, the commenter urged 

EPA to set an emission limit for H2SO4

no higher than the limit of 1.06 x 10¥4

lb/MMBtu for each unit as proposed for 

SJGS based on the use of low reactivity 

catalyst and the most current 

information from the Electric Power 

Research Institute. If CEMS are 

unavailable for this pollutant, the 

commenter urged EPA to require stack 

test monitoring for H2SO4 on a more 

frequent basis than annual monitoring. 

The commenter also requested that 

EPA set emission limits for ammonia at 

a rate no higher than the 2.0 parts per 

million as proposed at SJGS, to be 

monitored with CEMs. 

Response: EPA disagrees with the 

comment that Region 9 should set the 

same emission limits for ammonia and 

sulfuric acid as Region 6 in its proposed 

BART determination for SJGS. 

In its January 5, 2011 proposed 

rulemaking for SJGS, Region 6 proposed 

an ammonia slip limit of 2.0 ppmvd on 

an hourly average and requested 

comment on a range from 2.0 ppmvd to 

6.0 ppmvd. In its final BART 

rulemaking (76 FR 52388, August 22, 

2011), Region 6 determined that an 

emission limit and monitoring were not 

warranted for ammonia and did not 

finalize its BART determination for 

SJSG with the proposed 2.0 ppmvd 

ammonia limit. 

In its proposal for SJGS, Region 6 

proposed an emission limit for sulfuric 

acid of 1.06 × 10¥4 lb/MMBtu on an 

hourly average, and requested comment 

on a range from 1.06 × 10¥4 to 7.87 × 

10¥4 lb/MMBtu. In its final rulemaking, 

Region 6 finalized an emission limit for 

sulfuric acid of 2.6 × 10¥4 lb/MMBtu to 

minimize its contribution to visibility 

impairment. Region 6 calculated this 

emission limit using an estimation 


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33See 76 FR 491, January 5, 2011. 

34See 76 FR 52388, August 22, 2011. 

methodology from EPRI, assuming the 

use of an ultra-low activity catalyst (0.5 

percent total conversion of SO2 to SO3), 

zero ammonia slip, no sorbent injection, 

and EPRI-recommended values for 

removal by existing downstream control 

equipment. 

Actual measurements of baseline 

sulfuric acid emissions have not yet 

been determined at FCPP and the 

calculation of projected sulfuric acid 

emissions after installation and 

operation of SCR using the EPRI 

methodology is dependent on future 

decisions made by the facility on the 

type of SCR catalyst and number of 

layers used, as well as numerous 

assumptions about loss to downstream 

components, such as air preheaters and 

baghouses, the true values of which are 

currently not yet defined or known for 

FCPP. Furthermore, EPA Region 9 is the 

permitting authority for preconstruction 

permits on the Navajo Nation, and an 

increase in sulfuric acid emissions from 

the installation of SCR may trigger major 

modification PSD permit requirements 

at a low threshold of 7 tpy (see 40 CFR 

52.21) or Tribal minor new source 

review (NSR) permit requirements at a 

threshold of 2 tpy (see 40 CFR Part 49 

Subpart C). Preconstruction permitting 

review may also be triggered from 

significant emissions increases of PM2.5

from SCR installation at FCPP. If one of 

these pollutant triggers PSD, the 

permitting authority must provide an 

Additional Impact Analysis under the 

PSD program. The PSD program also 

requires the permitting authority to 

determine BACT for pollutants that 

triggered PSD. A similar control 

technology review may also be required 

at the discretion of the permitting 

authority under the Tribal Minor NSR 

program. For these reasons, Region 9 

has determined that for FCPP, emission 

limits and monitoring requirements for 

sulfuric acid are more appropriately 

reviewed in the preconstruction 

permitting process. 

Comment: Citing the BART 

Guidelines at 40 CFR part 51, Appendix 

Y, section V, one environmental 

advocacy group stated that BART 

emission limits and compliance 

schedules must be based on ‘‘boiler 

operating day.’’ 

The commenter asserted that the 

‘‘very high’’ proposed BART emission 

limits suggest that EPA set these limits 

to encompass spikes that occur during 

startups and shutdowns. The 

commenter asserted that setting and 

enforcing limits based on boiler 

operating day would necessarily 

exclude spikes that occur before and 

after outages, such as startups, 

shutdowns, and malfunctions. 

According to the commenter, such 

periods should be subject to separate 

limits set at the pre-SCR uncontrolled 

level to encourage good work practice 

standards during these periods while 

allowing the SCR and other emission 

control technologies to be operated at an 

efficient and continuous capacity in 

compliance with BART. 

Response: EPA agrees that the NOX

limit under the alternative emission 

control strategy should be set for 30 

successive boiler operating days and 

that a ‘‘boiler operating day’’ should be 

defined as any day in which the boiler 

fires fossil fuel. Because the NOX

emission limit under the alternative 

emission control strategy already 

includes periods of startup and 

shutdown, separate limits are not 

required. The final rule reflects this 

approach. 

For the original proposed BART 

determination, EPA does not find it 

necessary to define boiler operating day 

because the BART limit is a heat inputweighted plant-wide limit. Only 

operating hours for any of the five units 

would be included. When a unit is not 

operating, those hours are not included 

in the plant-wide 30-day average. 

Additionally, the heat input-weighted 

plant-wide limit also includes periods 

of startup and shutdown; therefore, 

separate limits are not required. 

Comment: One environmental 

advocacy group stated that EPA should 

require FCPP to install all control 

equipment within 3 years of the date of 

a final FIP, as EPA did at SJGS. The 

commenter stated that there is ample 

data to support the contention that all 

this emission control technology can be 

installed and operational within 3 years 

or less. 

Response: EPA disagrees with the 

comment that Region 9 should set a 3- 

year compliance timeframe because 

Region 6 proposed a 3-year compliance 

timeframe for SJGS. In its proposed 

rulemaking for SJGS,33 Region 6 

proposed a 3-year timeframe for SJGS to 

comply with the proposed limits but 

requested comment on a compliance 

range of 3–5 years. In its final 

rulemaking,34 Region 6 finalized a 

compliance timeframe of 5 years and 

determined that because of site 

congestion at SJGS, a longer timeframe 

than average (37–43 months) to install 

SCR on the 4 units at SJGS would be 

required. The final BART determination 

for FCPP requires retrofit of five existing 

units at FCPP. In the final rule for FCPP, 

Region 9 is requiring installation and 

operation of SCR controls for one 750 

MW unit within 4 years of the effective 

date, and the remaining 750 MW unit 

and Units 1–3 within 5 years of the 

effective date. Based on all of the factors 

that will be involved in the design, 

purchase and operation of the SCR 

controls, Region 9 considers this 

schedule to be appropriate and 

expeditious. 

G. Comments on APS’s Alternative and 

EPA’s Supplemental Proposal 

Comment: One of the owners of FCPP 

pointed out that the November 2010 

APS proposal included two critical 

components: (1) A proposal to close 

Units 1–3 and install SCRs on Units 4 

and 5; and (2) EPA’s contemporaneous 

agreement that these activities resolve 

any liability FCPP may have under 

regional haze BART, Reasonably 

Attributable Visibility Impairment Best 

Available Retrofit Technology (RAVI 

BART), NSR, and New Source 

Performance Standard (NSPS). The 

commenter asserted that EPA’s 

supplemental proposal addresses only 

half of APS’S proposal—the half that 

achieves better than BART emission 

reductions, plant-wide reductions of all 

other emissions, and greater visibility 

improvement at nearby Class I areas— 

but ignores the other half of the APS 

proposal—the half that provides APS 

and the FCPP co-owners with needed 

regulatory certainty. Unless there is a 

contemporaneous resolution of these 

key issues with EPA, the commenter 

cannot and does not support EPA’s 

supplemental proposal. 

Response: EPA understands that the 

owners of FCPP were seeking to resolve 

any potential regulatory noncompliance 

issues simultaneously. However, EPA 

must use different mechanisms for 

promulgating rules and resolving 

enforcement issues. The comment 

requests resolution of potential past 

non-compliance with NSR and NSPS 

requirements. Potential past noncompliance can be resolved through 

entering into a Consent Decree 

containing a judicially approved release 

from liability. Such a Consent Decree 

under the CAA must be approved by the 

United States Department of Justice and 

must also be lodged in a United States 

District Court where the public is 

allowed to comment on it. Consent 

Decrees must be entered by the United 

States District Court for a release of 

liability of potential past noncompliance to be effective. Accordingly, 

this rulemaking action cannot effectuate 

any release of liability for potential past 

non-compliance with NSR or NSPS. 

EPA is aware that several 

environmental groups have petitioned 

the Department of Interior to make a 


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51640 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

35See National Parks Conservation Association, 

et al., Petition to United States Department of 

Interior, United States Department of Agriculture, 

and United States Forest Service, February 16, 

2010, in the docket for this rulemaking. 

36See letter from Will Shafroth, Department of 

Interior to Stephanie Kodish, NPCA, March 8, 2011 

in the docket for this proposed rulemaking. 

37See National Parks Conservation Association, 

et al., Petition to United States District Court for the 

District of Columbia, January 20, 2011, in the 

docket for this final rulemaking. 

38See National Parks Conservation Association, 

et al., Plaintiffs, v. United States Department of 

Interior and United States Department of 

Agriculture, Defendants. Civil Action No. 11–130 

(GK). United States District Court for the District of 

Columbia, June 30, 2011, 794 F. Supp. 2d 39; 2011 

U.S. Dist. LEXIS 70170; 74 ERC (BNA) 1015. In the 

docket for this final rulemaking. 

39 In testimony to the ACC, Mark Schiavoni of 

APS testified that he anticipates capacity factors 

over 2015–2030 to range from 75–81 percent for 

Units 4 and 5. See document titled ‘‘Schiavoni 

Testimony_TRANSCRIPT.pdf’’ in the docket for 

this final rulemaking. 

40See document titled ‘‘BART vs 

Alternative.xlsx’’ in the docket for this final 

rulemaking. 

finding that impairment at Class I areas 

is reasonably attributable to FCPP.35

The NPS, on behalf of Department of 

Interior, has declined to make such a 

finding based on EPA’s work in this 

rulemaking.36 The environmental 

groups also filed a Complaint in the 

United States District Court for the 

District of Columbia 37 contending that 

the Department of Interior was 

unreasonably delaying making a finding 

of reasonable attribution from FCPP. On 

June 30, 2011, the Court dismissed the 

Complaint 38 holding that the NPS’s 

letters refusing to make the finding of 

reasonable attribution constituted 

denying the Petitioners’ request for a 

RAVI finding. Therefore, there are no 

pending petitions with the Department 

of Interior requesting a finding that 

visibility impairment at any Class I 

areas is reasonably attributable to FCPP. 

In any event, a BART determination 

under RAVI would likely be the same as 

under this BART determination. 

Comment: One of the owners of FCPP 

stated that it is imperative to note that 

its support of the supplemental proposal 

(if other potential liabilities are resolved 

as discussed above) is based solely on 

the rationale that this achieves a result 

better than the proposed BART FIP, and 

that this ‘‘better than BART’’ outcome is 

a result of the closure of Units 1, 2, and 

3. The commenter stressed that in no 

case—either in the original BART FIP 

proposal or in the supplemental 

proposal—does the commenter support 

any determination that SCR constitutes 

BART for FCPP. A second FCPP owner 

stated that its acceptance of the 

supplemental proposal upon resolution 

of the other potential issues would be a 

voluntary action based on its own 

business interests; the commenter does 

not support any BART determination 

that calls for installation of SCR at 

FCPP. 

Response: EPA disagrees with the 

commenters that SCR is not BART. 

Based on our five-factor analysis, as 

described in the TSD for our proposed 

BART determination, SCR is cost 

effective and results in the greatest 

anticipated improvement in visibility. 

One of the owners of FCPP notes that 

the ‘‘better-than-BART’’ outcome is a 

result of the closure of Units 1, 2, and 

3. However, the closure of Units 1–3 

alone does not result in greater emission 

reductions than EPA’s proposed BART 

determination, and represents only a 

roughly 30 percent reduction from 

baseline emissions. The closure of Units 

1–3, in combination with SCR on Units 

4 and 5, results in the ‘‘better-thanBART’’ outcome. 

The voluntary nature of the 

alternative emission control strategy 

does not negate EPA’s BART 

determination because (1) EPA must 

first determine what BART is in order 

to fulfill the requirements of the 

alternative program to BART as 

prescribed in the Regional Haze Rule, 

and (2) EPA cannot require the full or 

partial closure of a facility as a BART 

alternative, therefore the alternative 

emission control strategy remains an 

optional business choice of the owners 

of FCPP to implement in lieu of BART, 

if they see fit. 

Comment: One environmental 

advocacy group and one federal agency 

asserted that the supplemental proposal 

is not better than BART for NOX. 

Generally, commenters argue that based 

on the extended compliance timeframe 

for the alternative emission control 

strategy, the use of an artificially 

inflated baseline, the potential increase 

in output from Units 4 and 5, and 

assuming that SCR can achieve 0.05 lb/ 

MMBtu of NOX on an annual basis, the 

BART alternative fails to achieve greater 

cumulative NOX reductions than would 

installation of BART (SCR) on all five 

units. 

Response: EPA disagrees with the 

comment that the alternative emission 

control strategy is not better than BART, 

but agrees that a reexamination of 

baseline emissions and projected 

capacity factors in the future is 

warranted. As reported in the TSD for 

our proposed BART determination, 

facility-wide NOX emissions over 2001– 

2009 ranged from 40,331 to 47,300 tpy. 

While the baseline emissions provided 

by APS and used by EPA in our 

Supplemental Proposal was within the 

range of annual NOX emissions, in 

response to these comments, we 

conducted an additional analysis to 

compare the alternative emission 

control strategy against our final BART 

determination for NOX using the 2001– 

2010 average as the baseline emission 

rate and an assumed capacity factor of 

81 percent 39 for Units 4 and 5 under the 

alternative emission control strategy.40

This analysis shows that in 2014 and 

2015, the alternative emission control 

strategy results in lower NOX emissions 

than BART due to the closure of Units 

1–3 at the end of 2013. In 2016, 2017, 

and 2018, BART results in lower 

emissions than the alternative, and in 

2019 and beyond, the alternative 

emission control strategy (5,556 tpy), 

with phased-in controls on Units 4 and 

5 by the end of 2018, results in lower 

emissions than BART (8,479 tpy). In 

total, the BART Alternative results 

lower emissions from FCPP over more 

calendar years (2014–2015, and 2019 

and beyond) than does BART (2016– 

2018). Even if APS operated Units 4 and 

5 at 100 percent capacity, EPA 

calculates that emissions under the 

alternative emission control scenario in 

2019 and beyond to be 6,859 tpy, which 

is still lower than under BART (8,479 

tpy). On a cumulative basis, i.e., the 

sum total of NOX emissions over 2011 

to 2064, the BART Alternative also 

results in lower emissions than BART, 

both at an 81 percent capacity factor and 

at 100 percent capacity. 

Commenters argue that if the BART 

emission limit were lower, the 

alternative would not be better than 

BART. For example, if EPA required an 

emission limit representing a 90 percent 

reduction in NOX emissions, annual 

NOX emissions would be lower than 

5,000 tpy. However, as discussed in 

responses to similar comments, EPA has 

determined that an 80 percent reduction 

in NOX emissions is BART for FCPP. It 

is inappropriate to compare the 

alternative emission control strategy 

against a target for BART that 

commenters would like to see based on 

maximum emission reductions achieved 

without consideration of site-specific 

characteristics of FCPP that EPA has 

determined are not appropriate for 

FCPP. 

Commenters further argue that by 

offering FCPP a BART compliance 

deadline of July 2018, EPA is illegally 

extending a mandatory deadline under 

the CAA, and that installation of SCR at 

Units 4 and 5 can easily be 

accomplished within 2 years. EPA 

disagrees and notes that the compliance 

timeframe for EPA’s BART 

determination requiring SCR 


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Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 51641 

41Please see http://www.epa.gov/region09/air/ 

maps/maps_top.html for EPA Region IX air quality 

designations. 

42To support this assertion, the commenter cited 

Executive Order 13175 (65 FR 67249, November 6, 

2000; EPA Policy on Consultation and Coordination 

With Indian Tribes, section IV ‘‘Guiding 

Principles,’’ May 4, 2011 (EPA Tribal Policy); and 

the 1984 EPA Indian Policy. 

43See ‘‘EPA Policy on Consultation and 

Coordination with Indian Tribes’’, May 4, 2011, in 

the docket for this final rulemaking. 

installation on all 5 units is within 5 

years of the effective date of the final 

rule, consistent with the maximum time 

allowed under the CAA § 169A(g)(4) in 

the definition of ‘‘as expeditiously as 

practicable’’. The commenter is 

confusing requirements under BART 

and requirements under the alternative 

to BART. EPA is not extending the 

BART compliance deadline beyond a 5- 

year period. Rather, EPA is allowing 

additional time to implement the 

alternative emission control strategy, as 

allowed under the provisions of the 

RHR for the implementation of ‘‘other 

alternative measure rather than to 

require sources subject to BART to 

install, operate, and maintain BART’’ 

(See 40 CFR 51.308(e)(2)). In our 

Supplemental Proposal, EPA cited the 

requirement (under 40 CFR 

51.308(e)(2)(iii)) that ‘‘all necessary 

emission reductions take place during 

the period of the first long-term strategy 

for regional haze’’. 

EPA disagrees with commenters that 

reductions under the alternative to 

BART violates 40 CFR 51.308(e)(2)(iii). 

The requirement simply states the 

reductions take place during the period 

of the first long term strategy and does 

not specifically prescribe that those 

reductions must take place at the 

beginning, middle, or end of the period 

of the first long-term strategy. 

H. Other Comments 

Comment: Forty-five private citizens 

and several private citizens who 

submitted written comments at a public 

hearing explicitly stated that they 

support EPA’s efforts to clean up FCPP. 

Many of these commenters asked for the 

strictest regulations. Another private 

citizen implied that EPA should act to 

clean up emissions from FCPP and 

noted that cleaner air will result in a 

cleaner Colorado snow pack, which will 

result in cleaner water in the Colorado 

River. 

Twelve private citizens and a few 

private citizens who submitted written 

comments at a public hearing stated that 

FCPP should be de-commissioned. 

Several of these commenters asserted 

that the plant should only be shut down 

if it cannot cease emitting pollutants, 

while others stated the plant should be 

shut down immediately. 

Nine private citizens and some of the 

private citizens who submitted written 

comments at a public hearing stated that 

renewable energy sources can be used in 

place of coal-fired power plants. 

Response: EPA acknowledges the 

comments supportive of our proposals 

but disagrees with commenters that 

suggest that FCPP should be decommissioned or shut down 

immediately. 

In addition to other CAA programs, 

EPA assesses air quality with respect to 

NAAQS. The Four Corners area is 

designated attainment for each of the 

NAAQS.41 This means that the air 

quality in the Four Corners area is 

meeting the national health-based 

standards set by EPA. 

For this action, EPA finds that under 

40 CFR 49.11, it is necessary or 

appropriate to achieve emissions 

reductions of NOX from FCPP required 

by the CAA’s Regional Haze program. 

NOX is a significant contributor to 

visibility impairment in the numerous 

mandatory Class I Federal areas 

surrounding FCPP. The emission 

reductions finalized will help achieve 

the goals of the Regional Haze Rule. The 

Regional Haze Rule however does not 

require nor does it authorize EPA to decommission or shut down facilities to 

achieve the goals of the rule. 

EPA agrees with commenters who 

stated that renewable energy sources 

can be used in place of coal-fired power 

plants. However, the Regional Haze 

Rule does not require that coal-fired 

facilities use or switch to renewable 

energy sources to meet the goals of the 

rule. 

Comment: The Navajo Nation pointed 

out that as a federal agency, EPA has a 

trust responsibility to the Navajo Nation 

that requires it to give special 

consideration to the Nation’s best 

interests in any action.42 Because of the 

significant economic interest of the 

Navajo Nation in FCPP the commenter 

asserted that the BART proposal clearly 

implicates the Nation’s tribal trust 

interests. The commenter further 

contended that since EPA is adopting a 

FIP for BART in lieu of a TIP by the 

Navajo Nation, the EPA is essentially 

‘‘standing in the shoes’’ of the Nation for 

purposes of making the BART 

determination and should, therefore, 

defer to tribal views when making 

environmental policy decisions and give 

the same weight to the BART factors 

that the Navajo Nation would in 

determining BART for FCPP; that is, to 

the extent that the Nation recommends 

a particular control technology as BART 

for power plants located on the Nation’s 

lands, EPA should give substantial 

weight to that recommendation as part 

of its decision-making process. (The 

commenter asserted that advanced 

combustion controls, rather than SCR, 

properly represent BART for FCPP.) 

Thus, the commenter stated that as the 

Nation’s trustee and ‘‘stand-in’’ for the 

BART determination for FCPP, the EPA 

should not select a more stringent BART 

than the commenter stated is required 

by the Regional Haze Rule to achieve 

‘‘reasonable progress’’ where doing so 

would likely have substantial adverse 

impacts on the Navajo Nation. 

The commenter also stated that EPA 

has a duty to undertake government-togovernment consultations with the 

Navajo Nation, and that EPA must 

coordinate with the Navajo Nation in its 

relationship with, and reliance on, other 

federal agencies. The commenter 

pointed out that EPA relies on data 

provided by the NPS, another federal 

trustee of the Nation, but has not 

coordinated consultation between NPS 

and the Navajo Nation on this 

rulemaking. The commenter indicated 

that the May 2011 EPA Tribal Policy 

recognizes that such coordination is 

required under Executive Order 13175 

and asserted that EPA should coordinate 

consultation with the U.S. Forest 

Service (who provided data used in the 

proposed rulemaking) as well as various 

Department of the Interior (DOI) 

agencies that have an interest in this 

rulemaking, including NPS, the Bureau 

of Indian Affairs, the U.S. Fish and 

Wildlife Service, the Office of Surface 

Mining Reclamation and Enforcement, 

and potentially the Bureaus of Land 

Management and Reclamation. The 

commenter added that consultation 

with Department of Energy (DOE) may 

be important in regard to including 

FCPP in a study that DOE is proposing 

to carry out for NGS, which also is 

located on the Navajo reservation and 

uses Navajo coal. 

Response: It is EPA’s policy (EPA 

Policy on Consultation and 

Coordination with Indian Tribes, May 4, 

2011, (EPA Tribal Consultation 

Policy)) 43 to consult on a governmentto-government basis with federally 

recognized tribal governments when 

EPA actions and decisions may affect 

tribal interests. Consultation is a process 

of meaningful communication and 

coordination between EPA and tribal 

officials prior to EPA taking actions or 

implementing decisions that may affect 

tribes. One of the primary goals of the 

EPA Tribal Policy is to fully implement 

both Executive Order 13175 and the 

1984 Indian Policy, with the ultimate 


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51642 Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 

44See document ‘‘Timeline of all Tribal 

Consultations on BART.docx’’ in the docket for this 

final rulemaking. 

45See ‘‘EPA Policy on Consultation and 

Coordination with Indian Tribes’’, May 4, 2011, in 

the docket for this final rulemaking. 46http://www.doi.gov/navajo-gss/index.cfm. 

goal of assuring tribal concerns and 

interests are considered whenever EPA’s 

actions may affect tribes by 

strengthening the consultation, 

coordination, and partnership between 

tribal governments and EPA. 

For this action, EPA consulted with 

Navajo Nation in accordance with the 

Executive Order and EPA’s Indian 

Policies on numerous occasions. A 

record of all consultations with tribes is 

included in the Docket for this final 

rulemaking.44 As stated in the 2011 EPA 

Tribal Consultation Policy, as a process, 

consultation includes several methods 

of interaction that may occur at different 

levels.45 EPA consulted with the Navajo 

Nation at various times throughout the 

process at various levels of government, 

including in-person meetings with the 

President of the Navajo Nation on May 

19, 2011, and June 13, 2012. 

EPA acknowledges the significant 

interest of the Navajo Nation in FCPP. 

Based on the results from the original 

analysis for the proposed BART 

determination, EPA concluded that the 

installation and operation of SCR on all 

five units at FCPP would not adversely 

affect the competitiveness of FCPP’s 

cost to generate electricity compared to 

the cost to purchase electricity on the 

open market. Thus, EPA infers that a 

BART determination requiring SCR on 

all five units, in itself, should not force 

the closure of FCPP. EPA notes that we 

do not expect adverse impacts to the 

Navajo Nation if FCPP continues 

operating all units and complies with 

BART. However, potential adverse 

impacts to the Navajo Nation may result 

if the owners of FCPP choose to 

implement the optional BART 

Alternative. At the request of the Navajo 

Nation during consultation, EPA 

commissioned a study to examine 

potential adverse impacts to Navajo 

Nation from the BART Alternative. The 

results of this analysis were discussed 

with President Shelly during a 

consultation meeting on July 13, 2012 

and will be provided to President Shelly 

by letter as a follow-up to our 

consultation. 

EPA agrees that we are acting to 

implement the BART requirements for a 

facility located on the Navajo 

Reservation in circumstances in which 

the Tribe has not applied, or been 

approved, to administer the applicable 

CAA program. EPA is mindful of the 

Navajo Nation’s views and 

recommendations, particularly where 

there is a potential substantial adverse 

economic impact to the Navajo Nation. 

We disagree however that the Agency 

must ‘‘defer to tribal views when 

making environmental policy 

decisions’’. EPA is carrying out the 

requirements of the CAA and the 

Regional Haze Rule pursuant to our 

authority to implement these 

requirements in the absence of an EPAapproved program. EPA notes that the 

CAA and the TAR provide mechanisms 

for eligible Indian tribes to seek 

approval of tribal programs should they 

wish to administer CAA requirements. 

For this action EPA carefully 

considered the unique location of FCPP 

with respect to proximate Class I areas 

as well as its economic importance to 

Navajo Nation. We conducted a detailed 

analysis of available emission control 

technologies against the five-factors 

specified in the BART Guidelines. EPA 

also conducted extensive air modeling 

(included in the Supplemental 

Proposal). Additionally, we have 

considered the numerous comments we 

received on our proposals. In making 

our final decision we have had to 

balance the findings of our analysis 

along with the interests of various 

stakeholders, our unique government-togovernment relationship with tribes, 

and our responsibility to carry out the 

requirements of the CAA and Regional 

Haze Rule to achieve reasonable 

progress towards visibility 

improvements. 

This final FIP strikes a reasonable 

balance between reducing emissions to 

improve visibility while allowing for the 

facility to implement those reductions 

in a manner that is consistent with its 

continued operation and economic 

viability. 

EPA has received information and 

comments from numerous federal 

agencies for this rulemaking and 

considered these in our final decision 

(all information and comments are 

included in the docket). EPA plans to 

coordinate with the Department of 

Interior or other federal agencies, as 

appropriate, in any future tribal 

consultations related to BART for FCPP 

or the Navajo Generating Station, the 

other coal-fired power plant located in 

Navajo Nation. 

EPA acknowledges that the 

Department of Interior has contracted 

with the National Renewable Energy 

Lab (NREL) of the Department of Energy 

to examine renewable energy options for 

the Navajo Generating Station, which is 

also located on the Navajo Nation and 

uses coal from the Kayenta Mine, 

located on Navajo and Hopi land. 

Information on the NREL study is 

available from DOI 46 and will be 

included in the docket for EPA’s 

upcoming proposed rulemaking for 

NGS. 

Comment: One public interest 

advocacy group, the Navajo Nation, and 

one environmental advocacy group 

supported establishment of a 20 percent 

opacity limit for material handling. The 

public interest advocacy group stated 

that the FCPP site is subject to 

numerous dust-storm events originating 

in northwestern Arizona, and the 

additional fugitive dust that could be 

picked up by these strong winds at the 

FCPP property added to the incoming 

dust from the west makes breathing and 

outdoor activity miserable on from 4 to 

12 days per year for residents of 

Montezuma County, CO and San Juan 

County, NM. 

One of the owners of FCPP noted that 

in addition to the proposed BART 

requirements, EPA proposed separate 

fugitive dust control requirements and a 

20 percent opacity limitation for certain 

material handling operations, which are 

unrelated to the CAA visibility program. 

The commenter laid out the history of 

EPA’s past attempt to apply fugitive 

dust controls to FCPP. The commenter 

argued that the proposed requirements 

are arbitrary and should not be finalized 

because the facts upon which EPA relies 

are inadequate to support the 

conclusion that fugitive dust control 

requirements are ‘‘necessary or 

appropriate’’ to protect air quality at 

FCPP. 

Response: EPA acknowledges support 

for establishing a 20 percent opacity 

limit for material handling and a Dust 

Control Plan at FCPP. EPA has finalized 

both these requirements. EPA notes that 

the Dust Control Plan shall include a 

description of the dust suppression 

methods for controlling dust from site 

activities including coal handling and 

storage facilities, ash handling, storage, 

and landfills, and road sweeping 

activities. The 20 percent opacity 

standard will apply to any crusher, 

grinding mill, screening operation, belt 

conveyor, or truck loading or unloading 

operation. 

EPA agrees with the commenter that 

the fugitive dust and 20 percent opacity 

limit are unrelated to the CAA visibility 

program. EPA also agrees with the 

history laid out by the commenter on 

fugitive dust controls at FCPP. EPA 

included these dust control 

requirements in the previous FIP 

finalized in 2007 because EPA 

considered them necessary or 

appropriate under the TAR to assure 

that dust from this facility does not 


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Federal Register / Vol. 77, No. 165 / Friday, August 24, 2012 / Rules and Regulations 51643 

47For example, see document titled ‘‘Four 

Corners Power Plant Complaint to MSHA’’ in the 

docket for this final rulemaking. 

contribute to possible violations of the 

NAAQS for PM10. The commenter is 

correct that EPA withdrew the 2007 FIP 

requirements on dust when APS 

appealed the rule. EPA had not 

adequately documented in the record 

for the 2007 FIP our basis for 

establishing the 20 percent opacity 

regulation. For the 2007 FIP, EPA chose 

not to defend our position based on the 

record for that rulemaking and instead 

chose to address the issue in a 

subsequent FIP action, such as this one. 

EPA disagrees with the commenter 

that the fugitive dust and opacity 

requirements are arbitrary or that our 

argument is inadequate to support our 

conclusion that fugitive dust control 

requirements are necessary or 

appropriate to protect air quality at 

FCPP.47

EPA’s basis for finding that it is 

necessary or appropriate for FCPP to 

comply with a requirement to limit its 

material handling emissions to 20 

percent or less is being set forth in this 

rulemaking. FCPP receives 

approximately 10 million tons of coal 

per year for combusting in Units 1–5. 

This massive quantity of coal moves by 

conveyor belt across FCPP’s property 

line through numerous transfer points 

before the coal is loaded into the storage 

silos that feed the individual 

combustion units. Each of these transfer 

points along with the conveyor belts has 

the potential for PM emissions. The PM 

can be minimized through the use of 

collection devices or dust suppression 

techniques such as covered conveyors 

or spraying devices at the transfer 

points. EPA first promulgated dust 

control requirements for new coal 

handling equipment on January 15, 

1976 (41 FR 2232). This rule affected 

equipment constructed or modified after 

the 1970s that affected facilities built or 

modified after October 24, 1974. The 

purpose of these New Source 

Performance Standards (NSPS) was: 

NSPS implement CAA section 111(b) and 

are issued for categories of sources which 

have been identified as causing, or 

contributing significantly to, air pollution 

which may reasonably be anticipated to 

endanger public health or welfare. The 

primary purpose of the NSPS are to help 

States attain and maintain ambient air quality 

by ensuring that the best demonstrated 

emission control technologies are installed as 

the industrial infrastructure is modernized. 

See 74 FR 51951 (October 8, 2009). 

EPA’s basis for finding that it is 

necessary or appropriate for FCPP to 

comply with a requirement to limit its 

material handling emissions to 20 

percent or less is being set forth in this 

rulemaking. EPA has promulgated a 20 

percent opacity limit for all new coal 

handling operations built after the mid 

1970s in the New Source Performance 

Standards. This NSPS standard applied 

to any coal handling equipment 

processing more than 200 tons per day 

of coal. Because FCPP receives 

approximately 10 million tons of coal 

per year for combusting in Units 1–5, it 

may be processing more than 27,000 

tons per day. This is more than 100 

times the smallest size coal handling 

operation subject to the NSPS, and 

which EPA considered necessary for 

protecting public health and welfare. As 

mentioned before, FCPP’s massive 

quantity of coal moves by conveyor belt 

across FCPP’s property line, passing 

through numerous transfer points before 

the coal is loaded into the storage silos 

that feed the individual pulverizers and 

combustion units. Each of these transfer 

points along with the conveyor belts has 

the potential for PM emissions. The PM 

can be minimized by collection devices 

or dust suppression techniques such as 

covered conveyors or spraying devices 

at the transfer points. 

FCPP and the BHP Navajo Mine that 

provides FCPP’s coal are within close 

proximity to Morgan Lake which is a 

recreational lake with public access just 

beyond the FCPP’s property line. Excess 

dust can blow over the FCPP property 

line to Morgan Lake and adjacent 

properties. EPA and Navajo Nation EPA 

receive numerous complaints from 

Navajo Tribal members concerning 

excess dust emissions generated from 

the ash landfill FCPP maintains, as well 

as from the other material handling and 

storage operations. 

EPA concludes that it is necessary or 

appropriate to set enforceable fugitive 

dust/PM suppression measures to 

protect ambient air quality because (1) 

there is a large potential for dust 

emissions from the facility coal and ash 

operations to be emitted and blow 

across the property line, (2) EPA and 

Navajo Nation EPA have received 

numerous complaints concerning excess 

dust from the ash landfill and other 

operations, and (3) these activities are 

occurring in close proximity to a public 

access area. 

EPA disagrees with the commenter 

that the 20 percent opacity limit is 

arbitrary and capricious. While EPA 

acknowledges that New Mexico does 

not have a general opacity limit that 

applies to dust, the other three Four 

Corners States do. In Arizona and 

Colorado a general 20 percent opacity 

limit applies at all facilities including 

‘‘grandfathered’’ coal-fired EGUs. In 

Utah the general opacity limit for 

facilities built before the CAA in 1971 

is a 40 percent opacity limit. However, 

all of Utah’s large coal-fired EGUs were 

constructed after 1971 and are subject to 

a 20 percent general opacity limit, i.e., 

the NSPS. Therefore, if FCPP had been 

built a few years later or a few miles in 

a different direction, it would be subject 

to the NSPS or a SIP provision limiting 

its coal material handling and storage 

operations to 20 percent opacity. 

Because FCPP is located on the 

Navajo Nation where generally 

applicable limits that often are included 

in SIPs do not exist and because it was 

constructed nearly 40 years ago, and 

because dust control measures at coalfired power plants are important for 

maintaining the PM10 NAAQS in the 

areas adjacent to the power plant 

properties, EPA finds that it is necessary 

or appropriate to impose measures to 

limit the amount of PM emissions from 

these material handling and storage 

emission sources. EPA recently imposed 

similar dust control requirements at the 

Navajo Generating Station, which is also 

on the Navajo Nation. 75 FR 10174. 

Comment: One environmental 

advocacy group stated that the EPA 

must consult in accordance with 

sections 7(a)(1) and 7(a)(2) of the 

Endangered Species Act (ESA) with 

regards to the proposed FIP because of 

the impacts of FCPP on threatened and 

endangered fish, wildlife, and plants 

and their designated critical habitats, 

which the commenter discussed at some 

length. The commenter added that EPA 

has discretion under the TAR to limit 

emissions of mercury, selenium, and 

other pollutants that may adversely 

affect the razorback sucker and Colorado 

pikeminnow, and these species’ critical 

habitats. According to the commenter, 

this discretion is part of what triggers 

the Agency’s obligation to consult 

pursuant to sections 7(a)(1) and 7(a)(2) 

of the ESA. 

Response: EPA disagrees with the 

commenter that determining BART and 

promulgating this FIP for FCPP 

necessitates ESA Section 7 consultation. 

EPA understands that the U.S. Fish and 

Wildlife Service (FWS) is primarily 

concerned about the effects of mercury 

and selenium on endangered fish 

species in the San Juan River. EPA notes 

that under the BART Alternative, 

mercury and selenium emissions will be 

reduced from FCPP due to the closure 

of Units 1–3. Additionally, EPA’s 

national MATS rule set new emission 

limits for mercury that would apply to 

Units 1–3 at FCPP if those units 

continue operation. EPA further notes 

that the goal of the Regional Haze Rule 

is to reduce emissions of visibilityVerDate Mar<15>2010 15:23 Aug 23, 2012 Jkt 226001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\24AUR2.SGM 24AUR2

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48EPA notes that Navajo Nation has established 

its own parks and monuments, including 

Monument Valley, Canyon de Chelly, and the Four 

Corners Monument, however, these parks are not 

mandatory Class I Federal Areas as set by Congress. 

impairing pollutants in order to restore 

visibility to natural conditions at the 

mandatory Federal Class I areas, and 

mercury and selenium do not affect 

visibility. Therefore, EPA does not have 

authority to regulate emissions of 

mercury or selenium under BART. 

Comment: The coal supplier for FCCP 

questioned the legality of EPA’s 

approach to the Regional Haze program 

at FCPP. According to the commenter, 

EPA’s BART and better-than-BART 

proposals are not authorized because 

BART is not ‘‘reasonably separable’’ 

from the remainder of a regional haze 

implementation plan for the Navajo 

Nation under the TAR. The commenter 

concluded that the minimum amount of 

reasonable progress that BART needs to 

achieve in a given Class I area cannot be 

determined until the amount of 

reasonable progress achieved by other 

CAA and state programs is subtracted 

from that area’s reasonable progress 

goal. The commenter asserted that the 

NOX emission reductions that would be 

achieved under the supplemental 

proposal are in excess of the amount 

required to achieve the reasonable 

progress goals in the area. 

The commenter added that EPA must 

consider the reasonable progress already 

achieved by past FCPP emission 

reductions. The commenter concluded 

that any necessary reasonable progress 

remaining to be achieved by NOX BART 

at FCPP cannot be determined until the 

reasonable progress achieved by prior 

emissions reductions at FCPP is 

considered. 

The commenter stated that EPA’s 

BART determination did not properly 

weigh the statutory factors. Specifically, 

the commenter indicated that individual 

Class I area visibility improvements 

from SCR have not been compared with 

respect to the statutory factors to 

visibility improvements from LNB, and 

the actual amounts of those 

improvements have not been measured 

against the amounts of improvements 

needed to meet reasonable progress 

goals. 

Response: EPA disagrees with the 

commenter who questioned the legality 

of our approach and that stated that 

EPA’s BART and ‘‘better-than-BART’’ 

proposals are not authorized because 

BART is not ‘‘reasonably separable’’ 

from the remainder of a regional haze 

implementation plan for the Navajo 

Nation under the TAR. We also disagree 

that our approach to the Regional Haze 

program impermissibly isolates BART 

from the context of the overall 

reasonable progress goal in violation of 

the CAA, and that our proposed BART 

for FCPP should be withdrawn. 

EPA’s authority to promulgate a 

source-specific FIP in Indian County is 

based on CAA sections 301(a) and (d)(4) 

and section 49.11 of the TAR provides 

EPA with broad discretion to 

promulgate regulations directly for 

sources located in Indian country, 

including on Indian reservations if we 

determine such Federal regulations are 

‘‘necessary or appropriate’’ and the 

Tribe has not promulgated a TIP. 

Specifically, in 40 CFR 49.11, EPA 

interpreted CAA section 301(d)(4) to 

authorize EPA to promulgate ‘‘such 

Federal implementation plan provisions 

as are necessary or appropriate to 

protect air quality’’. As such, because 

the Navajo Nation has not adopted a TIP 

for Regional Haze, the TAR provides 

discretion to EPA to determine which 

requirements of the Regional Haze Rule 

are necessary or appropriate to protect 

air quality, and to promulgate just those 

implementation plan provisions 

accordingly. Because two stationary 

sources on the Navajo Nation meet the 

BART eligibility criteria, EPA has 

determined that it is necessary or 

appropriate at this time to evaluate 

source-specific FIPs to implement the 

BART requirement of the RHR for each 

BART-eligible facility located on the 

Navajo Nation. The basis for our 

determination is discussed in several 

prior responses (See, e.g., Sections 2.1, 

4.1.2, and 8.1). The Courts have agreed 

with EPA that it may implement 

requirements that are necessary or 

appropriate without providing for all 

aspects of the CAA programs at a single 

time. See Arizona Public Service v. 

EPA, 562 F.3d 1116 (10th Cir. 2009). 

EPA disagrees with the comment that 

BART must be established in relation to 

reasonable progress goals. State or 

Tribal Implementation Plans for 

Regional Haze must establish goals that 

provide for reasonable progress towards 

achieving natural visibility conditions 

for each mandatory Class I Federal area 

located within its borders (40 CFR 

51.308(d)(1). FCPP and NGS are both 

located within the Navajo Nation Indian 

Reservation, and for the reasons 

outlined above, EPA is conducting 

BART determinations for each facility. 

There are no mandatory Class I Federal 

areas as designated by Congress located 

within the Navajo Nation.48 EPA further 

notes that the five-factor analysis 

outlined in the BART Guidelines, which 

were promulgated as a notice and 

comment rulemaking, does not require 

consideration of reasonable progress 

goals in determining BART for a given 

facility. 

EPA also disagrees that the minimum 

amount of reasonable progress that 

BART needs to achieve in a given Class 

I area cannot be determined until the 

amount of reasonable progress achieved 

by other CAA and state programs is 

subtracted from that area’s reasonable 

progress goal. Neither the CAA nor 

Regional Haze regulations set any 

quantitative presumptive targets for the 

amount of reasonable progress that must 

be achieved. Rather, the regulations 

allow for flexibility in determining the 

amount of reasonable progress towards 

the ultimate goal of returning to natural 

background conditions. 

EPA disagrees with the commenter 

that EPA must consider the reasonable 

progress already achieved by past FCPP 

emission reductions and that previously 

uncontrolled SO2, NOX, and PM 

emission rates prior to previous FIPs for 

FCPP should serve as the baseline for 

measuring visibility improvements. In 

its own five-factor BART analysis, APS 

used actual NOX emissions from 2001– 

2003 as baseline emissions for 

determining visibility improvement 

from NOX controls. NOX emissions from 

2001–2003 were generally consistent 

with and representative of NOX

emissions over the past ten years. EPA 

agrees with APS in its use of actual 

emissions over a recent time frame, 

rather than attempting to rely on 

previously uncontrolled emissions 

emission rates from FCPP as a baseline. 

Additionally, nothing in the BART 

regulations or guidance requires that 

EPA consider past emission reductions 

in determining BART under the RHR. 

However, as part of the required fivefactor analysis for BART EPA did 

evaluate and consider the current 

pollution control equipment in use at 

FCPP. 

EPA disagrees with the comment that 

EPA’s BART determination did not 

properly weigh the statutory factors. As 

discussed elsewhere in this document, 

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 


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that led the reviewing authority to 

choose that option over other control 

levels (see 70 FR 39170, July 6, 2005). 

EPA provided a detailed justification for 

our BART evaluation process and fivefactor analysis in the TSD for our 

proposed BART determination. 

EPA also disagrees with the comment 

that individual Class I area visibility 

improvements from SCR have not been 

compared with respect to the statutory 

factors to visibility improvements from 

LNB. In the preamble to our October 19, 

2010, proposed BART determination 

and in the accompanying TSD, EPA 

compared the anticipated visibility 

improvement from SCR with the 

anticipated improvement from 

combustion controls (LNB or 

LNB+OFA) (See 75 FR 64230, Table 3, 

and TSD Tables 36–39), and noted that 

EPA modeled the visibility 

improvement from SCR to far exceed the 

modeled improvement from combustion 

controls. 

IV: Administrative Requirements 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action will finalize a sourcespecific FIP for a single generating 

source. 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 action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Under the 

Paperwork Reduction Act, a ‘‘collection 

of information’’ is defined as a 

requirement for ‘‘answers to * * * 

identical reporting or recordkeeping 

requirements imposed on ten or more 

persons * * *’’ 44 U.S.C. 3502(3)(A). 

Because the final FIP applies to a single 

facility, Four Corners Power Plant, the 

Paperwork Reduction Act does not 

apply. See 5 CFR 1320(c). 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR Part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of 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. 

After considering the economic 

impacts of this action on small entities, 

I certify that this final action will not 

have a significant economic impact on 

a substantial number of small entities. 

The Four Corners Power Plant is not a 

small entity and the FIP for Four 

Corners Power Plant being finalized 

today does not impose any compliance 

requirements on small entities. See MidTex Electric Cooperative, Inc. v. FERC, 

773 F.2d 327 (D.C. Cir. 1985). 

D. Unfunded Mandates Reform Act 

(UMRA) 

This rule will impose an enforceable 

duty on the private sector owners of 

FCPP. However, this rule does not 

contain a Federal mandate that may 

result in expenditures of $100 million 

(in 1996 dollars) or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

EPA’s estimate for the total annual cost 

to install and operate SCR on all five 

units at FCPP does not exceed $100 

million (in 1996 dollars) in any one 

year. Thus, this rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. This action is also not subject to 

the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule will not impose direct compliance 

costs on the Navajo Nation, and will not 

preempt Navajo law. This final action 

will reduce the emissions of two 

pollutants from a single source, the Four 

Corners Power Plant. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or in the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final action 

requires emission reductions of NOX at 

a specific stationary source located in 

Indian country. Thus, Executive Order 

13132 does not apply to this action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000) EPA 

may not issue a regulation that has tribal 

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 tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

EPA has concluded that this action 

will have tribal implications. However, 

it will neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt Tribal law. This final rule 

requires FCPP, a major stationary source 

located on the Navajo Nation, to reduce 

emissions of NOX under the BART 

requirement of the Regional Haze Rule. 

The owners of FCPP submitted a BART 

Alternative to EPA for consideration 

that would provide compliance 

flexibility to the owners and result in 

greater reasonable progress than BART 

toward the national visibility goal. This 

BART Alternative involves closure of 

Units 1–3 at FCPP and installation of 

add-on pollution controls to Units 4 and 

5. EPA issued a Supplemental Proposal 

to allow the owners of FCPP the option 

to implement BART or the BART 

Alternative. Because the BART 

Alternative involves the optional 

closure of Units 1–3 and an associated 


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49See document number 0222 in docket EPA– 

R09–OAR–2011–0683 titled ‘‘Agenda May 19, 2011 

Meeting; Gov to Gov Consultation with Navajo 

Nation’’, and document titled: ‘‘2012_0613 

Consultation with Navajo Nation agenda and 

attendees.pdf’’ in the docket for this final 

rulemaking. 

50See document 0231 in docket EPA–R09–OAR– 

2011–0683 titled ‘‘EPA response to Navajo Nation 

dated 09/06/2011’’. 

decline in the amount of coal mined and 

combusted, taxes and royalties paid to 

the Navajo Nation by the owners of 

FCPP and BHP Billiton, operator of the 

coal mine that supplies FCPP, are 

expected to decline. The closure of 

Units 1–3 is not expected to result in 

layoffs, but is expected to result in a 

reduction in workforce at the mine and 

power plant over time through attrition. 

EPA consulted with tribal officials 

early in the process of developing this 

regulation to permit them to have 

meaningful and timely input into its 

development. EPA proposed to 

determine that it was necessary or 

appropriate to implement the BART 

requirement of the Regional Haze Rule 

for the Navajo Nation to protect air 

quality and improve visibility at the 

sixteen mandatory Class I Federal areas 

surrounding FCPP and the eleven Class 

I areas surrounding NGS. EPA first put 

forth an Advanced Notice of Proposed 

Rulemaking (ANPR) on August 28, 2009 

to accept comment on preliminary 

information provided by FCPP and NGS 

and to begin the consultation process 

with affected tribes and the Federal 

Land Managers. EPA has consulted on 

numerous occasions with officials of the 

Navajo Nation in the process of 

developing this FIP, including meetings 

with the President Ben Shelly of the 

Navajo Nation and his staff on May 19, 

2011, after the close of the public 

comment period for our proposed BART 

determination and Supplemental 

Proposal, and on June 13, 2012, prior to 

our final action. The agendas for these 

two consultation meetings are provided 

in the docket for this final rulemaking.49

A timeline of correspondence and 

consultation with tribes on both power 

plants is included in the docket for this 

final rulemaking. 

Several tribes, including the Navajo 

Nation, submitted comments on the 

ANPR, which we considered in 

developing our proposal and the 

accompanying Technical Support 

Document. The main concern expressed 

by the Navajo Nation was that requiring 

the top NOX control option, selective 

catalytic reduction (SCR) as BART 

would cause FCPP to close. In 

developing our proposed BART 

determination, EPA conducted an 

analysis to examine whether requiring 

SCR on Units 1–5 at FCPP would cause 

electricity generation costs to exceed the 

cost to purchase power on the wholesale 

market. Based on our analysis, we 

determined that electricity generation 

costs resulting from installation of SCR 

would not make FCPP uneconomical 

compared to the wholesale power 

market; therefore, we concluded that 

our proposed BART determination was 

unlikely to cause FCPP to close. 

The Navajo Nation provided 

comments on our proposed rule and 

Supplemental Proposal, in consultation 

and by letter, which EPA considered in 

developing this final rule. The Navajo 

Nation also expressed concern about the 

potential adverse impacts of the BART 

Alternative to the Navajo Nation and 

requested that EPA conduct an analysis 

to estimate potential adverse impacts to 

the Navajo Nation. Pursuant to EPA’s 

customary practice of engaging in 

extensive and meaningful consultation 

with tribes and tribal authorities with 

regard to relevant Agency actions, EPA 

commissioned an analysis of the 

optional BART Alternative to estimate 

potential adverse impacts to the Navajo 

Nation if the owners of FCPP chose to 

retire Units 1–3. EPA communicated 

these potential impacts to the Navajo 

Nation in our consultation meeting with 

President Shelly on June 13, 2012. The 

report will be provided to President 

Shelly by letter as a follow-up to our 

consultation with the Navajo Nation. 

The Navajo Nation also expressed 

support for phased-implementation of 

controls to provide compliance 

flexibility to FCPP. The final rule allows 

the owners of FCPP to choose between 

BART or the BART Alternative and 

provides timeframes for phasedimplementation of control options. 

EPA summarized and responded to 

comments from the Navajo Nation and 

the Salt River Pima Maricopa Indian 

Community received on the ANPR in 

the Technical Support Document for our 

proposed rulemaking. Following our 

meeting with President Shelly on May 

19, 2011, EPA sent a follow up letter 

summarizing and responding to the 

concerns expressed by the Navajo 

Nation.50 In coordination with this final 

rulemaking, EPA will also be sending a 

letter to President Shelly that 

summarizes and responds to the 

comments raised in his letter to EPA 

dated June 2, 2011. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks (62 FR 19885, 

April 23, 1997), applies to any rule that: 

(1) Is determined to be economically 

significant as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it requires 

emissions reductions of NOX from a 

single stationary source. Because this 

action only applies to a single source 

and is not a rule of general applicability, 

it is not economically significant as 

defined under Executive Order 12866, 

and does not have a disproportionate 

effect on children. However, to the 

extent that the rule will reduce 

emissions of NOX, which contributes to 

ozone formation, the rule will have a 

beneficial effect on children’s health by 

reducing air pollution that causes or 

exacerbates childhood asthma and other 

respiratory issues. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action 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 (10) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures and business practices) that 

are developed or adopted by the VCS 

bodies. The NTTAA directs EPA to 

provide Congress, through annual 

reports to OMB, with explanations 

when the Agency decides not to use 

available and applicable VCS. 

Consistent with the NTTAA, the 

Agency conducted a search to identify 

potentially applicable VCS. For the 

measurements listed below, there are a 

number of VCS that appear to have 

possible use in lieu of the EPA test 


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methods and performance specifications 

(40 CFR part 60, Appendices A and B) 

noted next to the measurement 

requirements. It would not be practical 

to specify these standards in the current 

rulemaking due to a lack of sufficient 

data on equivalency and validation and 

because some are still under 

development. However, EPA’s Office of 

Air Quality Planning and Standards is 

in the process of reviewing all available 

VCS for incorporation by reference into 

the test methods and performance 

specifications of 40 CFR part 60, 

Appendices A and B. Any VCS so 

incorporated in a specified test method 

or performance specification would 

then be available for use in determining 

the emissions from this facility. This 

will be an ongoing process designed to 

incorporate suitable VCS as they 

become available. 

Particulate Matter Emissions—EPA 

Methods 1 though 5; 

Opacity—EPA Method 9 and 

Performance Specification Test 1 for 

Opacity Monitoring; 

NOX Emissions—Continuous 

Emissions Monitors. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994), establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. This rule 

requires emissions reductions of two 

pollutants from a single stationary 

source, Four Corners Power Plant. 

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. Section 804 

exempts from section 801 the following 

types of rules (1) rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

parties. 5 U.S.C 804(3). EPA is not 

required to submit a rule report 

regarding today’s action under section 

801 because this action is a rule of 

particular applicability. This rule 

finalizes a source-specific FIP for a 

single generating source. 

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 October 23, 2012. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See CAA 

section 307(b)(2).) 

List of Subjects in 40 CFR Part 49 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Indians, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: August 6, 2012. 

Lisa P. Jackson, 

Administrator. 

Title 40, chapter I, of the Code of 

Federal Regulations is amended as 

follows: 

PART 49—[AMENDED] 

■ 1. The authority citation for part 49 

continues to read as follows: 

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

■ 2. Section 49.5512 is amended by 

adding paragraphs (i) and (j) to read as 

follows: 

§ 49.5512 Federal Implementation Plan 

Provisions for Four Corners Power Plant, 

Navajo Nation. 

* * * * * 

(i) Regional Haze Best Available 

Retrofit Technology limits for this plant 

are in addition to the requirements of 

paragraphs (a) through (h) of this 

section. All definitions and testing and 

monitoring methods of this section 

apply to the limits in this paragraph (i) 

except as indicated in paragraphs (i)(1) 

through (4) of this section. The interim 

NOX emission limit in paragraph 

(i)(2)(ii) of this section shall be effective 

180 days after re-start of the unit after 

installation of add-on post-combustion 

NOX controls for that unit and until the 

plant-wide limit goes into effect. The 

plant-wide NOX limit shall be effective 

no later than 5 years after October 23, 

2012. The owner or operator may elect 

to meet the plant-wide limit early to 

remove the individual unit limits. 

Particulate limits for Units 4 and 5 shall 

be effective 60 days after restart 

following the scheduled major outage 

for Units 4 and 5 in 2013 and 2014. 

(1) Particulate Matter from Units 4 

and 5 shall be limited to 0.015 lb/ 

MMBtu for each unit as measured by the 

average of three test runs with each run 

collecting a minimum of 60 dscf of 

sample gas and with a duration of at 

least 120 minutes. Sampling shall be 

performed according to 40 CFR Part 60 

Appendices A–1 through A–3, Methods 

1 through 4 and Method 5 or Method 5e. 

The averaging time for any other 

demonstration of the particulate matter 

compliance or exceedance shall be 

based on a 6-hour average. Particulate 

testing shall be performed annually as 

required by paragraph (e)(3) of this 

section. This test with 120 minute test 

runs may be substituted and used to 

demonstrate compliance with the 

particulate limits in paragraph (d)(2) of 

this section. 

(2) Plant-wide nitrogen oxide 

emission limits. 

(i) The plant-wide nitrogen oxide 

limit, expressed as nitrogen dioxide 

(NO2), shall be 0.11 lb/MMBtu as 

averaged over a rolling 30-calendar day 

period. NOX emissions for each calendar 

day shall be determined by summing 

the hourly emissions measured as 

pounds of NO2 for all operating units. 

Heat input for each calendar day shall 

be determined by adding together all 

hourly heat inputs, in millions of Btu, 

for all operating units. Each day the 

rolling 30-calendar day average shall be 

determined by adding together that 

day’s and the preceding 29 days’ 

pounds of NO2 and dividing that total 

pounds of NO2 by the sum of the heat 

input during the same 30-day period. 

The results shall be the rolling 30- 

calendar day-average pound per million 

Btu emissions of NOX. 

(ii) The interim NOX limit for the first 

750 MW boiler retrofitted with add-on 

post-combustion NOX control shall be 

0.11 lb/MMBtu, based on a rolling 


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average of 30 successive boiler operating 

days. 

(iii) Schedule for add-on postcombustion NOX controls installation 

(A) Within 4 years of the effective 

date of this rule, FCPP shall have 

installed add-on post-combustion NOX

controls on at least 750 MW (net) of 

generation to meet the interim emission 

limit in paragraph (i)(2)(ii)(A) of this 

section. 

(B) Within 5 years of the effective date 

of this rule, FCPP shall have installed 

add-on post-combustion NOX controls 

on all 2060 MW (net) of generation to 

meet the plant-wide emission limit for 

NOX in paragraph (i)(2)(i) of this 

section. 

(iv) Testing and monitoring shall use 

the 40 CFR part 75 monitors and meet 

the 40 CFR part 75 quality assurance 

requirements. In addition to these 40 

CFR part 75 requirements, relative 

accuracy test audits shall be performed 

for both the NOX pounds per hour 

measurement and the heat input 

measurement. These shall have relative 

accuracies of less than 20 percent. This 

testing shall be evaluated each time the 

40 CFR part 75 monitors undergo 

relative accuracy testing. 

(v) If a valid NOX pounds per hour or 

heat input is not available for any hour 

for a unit, that heat input and NOX

pounds per hour shall not be used in the 

calculation of the 30 day plant-wide 

rolling average. 

(vi) Upon the effective date of the 

plant-wide NOX average, the owner or 

operator shall have installed CEMS and 

COMS software that complies with the 

requirements of this section. 

(3) In lieu of meeting the NOX

requirements of paragraph (i)(2) of this 

section, FCPP may choose to 

permanently shut down Units 1, 2, and 

3 by January 1, 2014 and meet the 

requirements of this paragraph to 

control NOX emissions from Units 4 and 

5. By July 31, 2018, Units 4 and 5 shall 

be retrofitted with add-on postcombustion NOX controls to reduce 

NOX emissions. Units 4 and 5 shall each 

meet a 0.098 lb/MMBtu emission limit 

for NOX expressed as NO2 based on a 

rolling average of 30 successive boiler 

operating days. A ‘‘boiler operating day’’ 

is defined as any 24-hour period 

between 12:00 midnight and the 

following midnight during which any 

fuel is combusted at any time at the 

steam generating unit. Emissions from 

each unit shall be measured with the 40 

CFR part 75 continuous NOX monitor 

system and expressed in the units of lb/ 

MMBtu and recorded each hour. A valid 

hour of NOX data shall be determined 

per 40 CFR part 75. For each boiler 

operating day, every valid hour of NOX

lb/MMBtu measurement shall be 

averaged to determine a daily average. 

Each daily average shall be averaged 

with the preceding 29 valid daily 

averages to determine the 30 boiler 

operating day rolling average. The NOX

monitoring system shall meet the data 

requirements of 40 CFR 60.49Da(e)(2) (at 

least 90 percent valid hours for all 

operating hours over any 30 successive 

boiler operating days). Emission testing 

using 40 CFR part 60 Appendix A 

Method 7E may be used to supplement 

any missing data due to continuous 

monitor problems. The 40 CFR part 75 

requirements for bias adjusting and data 

substitution do not apply for adjusting 

the data for this emission limit. 

(4) By January 1, 2013, the owner or 

operator shall submit a letter to the 

Regional Administrator updating EPA of 

the status of lease negotiations and 

regulatory approvals required to comply 

with paragraph (i)(3) of this section. By 

July 1, 2013, the owner or operator shall 

notify the Regional Administrator by 

letter whether it will comply with 

paragraph (i)(2) of this section or 

whether it will comply with paragraph 

(i)(3) of this section and shall submit a 

plan and time table for compliance with 

either paragraph (i)(2) or (3) of this 

section. The owner or operator shall 

amend and submit this amended plan to 

the Regional Administrator as changes 

occur. 

(5) The owner or operator shall follow 

the requirements of 40 CFR part 71 for 

submitting an application for permit 

revision to update its Part 71 operating 

permit after it achieves compliance with 

paragraph (i)(2) or (3) of this section. 

(j) Dust. Each owner or operator shall 

operate and maintain the existing dust 

suppression methods for controlling 

dust from the coal handling and ash 

handling and storage facilities. Within 

ninety (90) days after promulgation of 

this paragraph, the owner or operator 

shall develop a dust control plan and 

submit the plan to the Regional 

Administrator. The owner or operator 

shall comply with the plan once the 

plan is submitted to the Regional 

Administrator. The owner or operator 

shall amend the plan as requested or 

needed. The plan shall include a 

description of the dust suppression 

methods for controlling dust from the 

coal handling and storage facilities, ash 

handling, storage, and landfills, and 

road sweeping activities. Within 18 

months of promulgation of this 

paragraph each owner or operator shall 

not emit dust with opacity greater than 

20 percent from any crusher, grinding 

mill, screening operation, belt conveyor, 

or truck loading or unloading operation. 

[FR Doc. 2012–19793 Filed 8–23–12; 8:45 am] 

BILLING CODE 6560–50–P 


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