10174 Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Rules and Regulations 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that this action is one 

of a category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(32)(e), of the Instruction. 

Under figure 2–1, paragraph (32)(e), of 

the Instruction, an environmental 

analysis checklist and a categorical 

exclusion determination are not 

required for this rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

■ 1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Revise § 117.551 to read as follows: 

§ 117.551 Chester River. 

The draw of the S213 Bridge, mile 

26.8, at Chestertown, shall open on 

signal if at least six hours notice is 

given. 

Dated: February 2, 2010. 

Wayne E. Justice, 

Rear Admiral, U.S. Coast Guard, Commander, 

Fifth Coast Guard District. 

[FR Doc. 2010–4648 Filed 3–4–10; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R09–OAR–2006–0185; FRL–9122–3] 

RIN 2009–AA00 

Source-Specific Federal 

Implementation Plan for Navajo 

Generating Station; Navajo Nation 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is promulgating a sourcespecific Federal Implementation Plan 

(FIP) to regulate emissions from the 

Navajo Generating Station (NGS), a coalfired power plant located on the Navajo 

Indian Reservation near Page, Arizona. 

EPA proposed the NGS FIP on 

September 12, 2006, to establish 

federally enforceable limitations for 

TSP, SO2, and opacity, and control 

measures for dust. The limits had 

previously been established in the 

Arizona SIP. EPA promulgated the 

Tribal Authority Rule in 1998, clarifying 

that state air quality regulations 

generally did not apply to facilities on 

Indian reservations and that EPA should 

fill the regulatory gap as necessary or 

appropriate. This action fills the 

regulatory gap for the NGS facility. 

DATES: Effective Date: This rule is 

effective on April 5, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. R09–OAR–2006–0185. All 

documents in the docket are listed in 

the Federal eRulemaking portal index at 

http://www.regulations.gov and are 

available either electronically at http:// 

www.regulations.gov or in hard copy at 

EPA Region IX, 75 Hawthorne Street, 

San Francisco, California 94105. 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. 

FOR FURTHER INFORMATION CONTACT: 

Sarvy Mahdavi, EPA Region IX, (415) 

972–3173, mahdavi.sarvy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background of the Final Rule 

A. Summary of Final FIP Provisions 

II. Analysis of Major Issues Raised by 

Commenters 

A. Concerns About the Scope of the FIP 

B. Comments on Emissions Limits 

III. Administrative Requirements 

A. Executive Order 12866: Regulatory 

Planning and 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 

NGS is a 2,250 megawatt coal-fired 

power plant located on the Navajo 

Indian Reservation near Page, Arizona. 

Salt River Project (‘‘SRP’’) is the 

operating agent for NGS, which is 

jointly owned by SRP, the United States 

Bureau of Reclamation, the Los Angeles 

Department of Water and Power, the 

Arizona Public Service, the Nevada 

Power Company, and the Tucson 

Electric Power Company. Since 1974, 

NGS has been operating on real property 

held in trust by the federal government 

for the Navajo Nation. The facility 

consists of three 750 MW coal-fired 

electric utility steam generating units. 

In 1999, EPA initially proposed to 

promulgate a FIP to regulate emissions 

from NGS. See 64 FR 48725 (September 

8, 1999) (1999 proposed FIP). At that 

time, NGS was meeting certain 

emissions limits in the Arizona State 

Implementation Plan (SIP). However, 

because the Arizona SIP is not approved 

to apply on the Navajo Indian 

Reservation, and because the Navajo 

Nation did not have a federally 

applicable tribal implementation plan 

(TIP), EPA proposed to promulgate a FIP 

to remedy the existing regulatory gap. 

The 1999 proposed FIP, therefore, 

would have, in essence, federalized the 

requirements contained in the Arizona 

SIP which NGS had historically 

followed. In explaining the basis for its 

proposed action, EPA stated that given 

the magnitude of emissions from the 


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plant, the Agency believed the proposed 

FIP provisions were necessary and 

appropriate to ensure the protection of 

air quality on the Reservation. See 64 FR 

at 48726. 

When EPA proposed the 1999 FIP, 

NGS was also subject to emissions 

limits for sulfur dioxide (SO2) that EPA 

had promulgated in 1991 when we 

revised a visibility FIP for Arizona to 

include requirements for NGS. See 56 

FR 50172 (Oct. 3, 1991), codified at 40 

CFR 52.145(d). The requirements of 

EPA’s 1991 revised visibility FIP are not 

being amended or changed by today’s 

action, but 40 CFR 52.145(d) is being 

recodified to 40 CFR part 49. 

EPA did not finalize the 1999 

proposed FIP. Instead, EPA proposed a 

new FIP in September, 2006. See 71 FR 

53639 (September 12, 2006) (2006 

proposed FIP). 

In the 2006 proposed FIP, EPA again 

explained that to remedy the regulatory 

gap that exists with regard to NGS 

because the Arizona SIP does not apply 

to sources located on the Navajo Indian 

Reservation, the Agency was proposing 

to issue a source-specific FIP 

establishing federally enforceable 

emission limits for SO2, particulate 

matter (PM), and opacity, and control 

measures for dust. The proposed limits 

were similar to those in the Arizona SIP 

which NGS has historically followed, 

but EPA proposed to include some 

additional requirements for reducing 

opacity and fugitive dust emissions 

from coal handling operations. 

Specifically, the 2006 proposed FIP 

lowered the opacity limit from 40% to 

20% and included requirements to 

control emissions associated with coal 

and ash handling and storage. 

EPA’s objective at this time in 

promulgating this final FIP for NGS is 

to remedy the existing regulatory gap 

described in our 1999 and 2006 

proposals. Today’s action will make 

federally enforceable the emission 

limitations which NGS has historically 

followed and will ensure that NGS 

complies with the opacity limit of 20% 

and control measures for dust from coal 

and ash handling and storage 

operations. This final action will help to 

advance the goals of ensuring continued 

maintenance of the national ambient air 

quality standards and protecting 

visibility. Given the importance of these 

goals and the magnitude of emissions 

from the plant, EPA believes that 

making these limits federally 

enforceable is appropriate to protect air 

quality on the Reservation and is 

accordingly exercising its discretionary 

authority under sections 301(a) and 

301(d)(4) of the Clean Air Act (‘‘CAA’’) 

and 40 CFR 49.11(a) to promulgate a FIP 

containing provisions to achieve these 

ends. 

As explained in our proposal in this 

action, the SO2 emissions limit in 

today’s final rule is a short-term 

emissions limit, which will be 

enforceable in addition to the rolling 

365 day average emission limit in the 

1991 visibility FIP. For PM emissions, 

EPA is finalizing its proposal to 

federalize the emissions limits which 

NGS historically followed from the 

Arizona SIP. The Arizona SIP did not 

contain any nitrogen oxides (NOX) 

emissions limits for NGS, and today’s 

final rule does not impose any limits on 

NOX. However, we note that NGS is 

subject to the Federal Acid Rain 

requirements under title IV of the Clean 

Air Act. NGS elected to comply early as 

a Phase I NOX facility which means 

NGS currently has a NOX limit of 0.40 

lbs/MMbtu, per unit, on an annual 

basis. EPA will also address the 

emissions of NOx and PM separately 

through EPA’s Regional Haze rule 

(codified at 40 CFR 51.308) to require 

best available retrofit technology for 

these pollutants, as discussed in more 

detail in our response to comments. 

A. Summary of Final FIP Provisions 

1. EPA is finalizing its proposal to 

limit particulate matter to 0.060 pounds 

per million british thermal units (lbs/ 

MMbtu), and specifying at least three 60 

minute sampling runs for each stack. 

Additionally, this final rule changes the 

averaging time for the particulate matter 

limit from the proposed 6 hour average 

to a three hour average based on three 

runs, each lasting approximately one 

hour. The particulate standard will be 

measured on a plant-wide basis and is 

also the way in which the State of 

Arizona has historically determined 

compliance at NGS. 

2. EPA is finalizing its proposal that 

opacity from each unit is limited to 20% 

averaged over any normal 6 minute 

period, excluding condensed water 

vapour, and 40% opacity, averaged over 

6 minutes, during absorber upset 

transition periods. The final opacity 

standard excludes uncombined water 

droplets. NGS has opacity monitors on 

each of its stacks; water droplets, which 

will be present in all stacks because of 

the SO2 scrubbers, cause inaccurate 

excess emission readings on the opacity 

monitors. Therefore, in the final rule 

excess opacity due to uncombined water 

droplets in the stack does not constitute 

an exceedance, but it will be reported 

on the quarterly excess emissions 

reports. 

3. EPA is finalizing its proposal that 

SO2 emissions are limited to 1 lb/ 

MMbtu averaged over a three-hour 

period, on a plant-wide basis. The 

emissions limit for SO2 was previously 

established in the Arizona SIP. The 

method of compliance determination 

has been changed from the proposal 

which based compliance on the sulfur 

content of coal. In the final rule, 

compliance is based on continuous 

emission monitoring (CEM). This 

change is being made because the 

Federal acid rain regulations require 

CEM monitoring, which is generally 

recognized as being more accurate and 

precise than monitoring the sulfur 

content of coal. NGS previously 

complied with the limit of 1 lb/MMbtu 

on a per-unit basis by using very low 

sulfur coal. Because NGS has now 

installed scrubbers to comply with the 

1991 visibility FIP, however, NGS will 

be able to comply with its short-term 

limits by removing sulfur from the 

exhaust stream. This will allow NGS to 

purchase slightly higher sulfur coal; 

additionally, the plant-wide average 

allows one scrubber to be down for 

periodic maintenance (lasting usually 

30 to 40 days) without requiring the 

purchase of specific low sulfur coal for 

use during the maintenance. In the final 

rule, as in the proposal, the actual SO2

emissions from NGS will remain 90% 

lower on an annual basis than they were 

before the scrubbers were installed to 

comply with the 1991 visibility FIP. To 

ensure that NGS continues to meet this 

limit, this rule will finalize the proposal 

to limit SO2 emissions to 1 lb/MMbtu on 

a 3 hour average limit. With the 

scrubbers in place, the plant-wide 

hourly emissions (tons per hour) will 

always be less than under the prior state 

limit, since at least one unit with its 

scrubber operating and removing SO2

will be needed to meet the plant-wide 

SO2 three hour limit. 

4. EPA is finalizing its proposal that 

opacity is limited to 20 percent averaged 

over a six minute period for both the 

boiler stacks and for dust from emission 

associated with coal transfer and storage 

and other dust-generating activities. 

NGS is required to submit a description 

of the dust control measures. 

II. Analysis of Major Issues Raised by 

Commenters 

EPA held a public informational 

workshop and hearing on the proposed 

FIP for NGS at the same time as the 

workshop and hearing on a proposed 

FIP for the Four Corners Power Plant. 

The joint public hearing was held in 

Farmington, New Mexico, on October 5, 

2006. Although EPA received only one 

comment letter directed specifically at 

the proposed FIP for NGS, we received 

43 comments on the proposed FIP for 

the Four Corners Power Plant (‘‘FCPP 


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10176 Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Rules and Regulations 

1Such implementation plans were not required 

from the States until December 17, 2007. Tribes are 

not subject to any mandatory deadlines to submit 

regional haze implementation plans. See 40 CFR 

49.4; 64 FR at 35758 (‘‘For example, unlike States, 

tribes are not required by the TAR to adopt and 

implement CAA plans or programs, thus tribes are 

not subject to mandatory deadlines for submittal of 

implementation plans.’’); see also Arizona Public 

Service Company v. USEPA, 562 F.3d at 1119). 

FIP’’), many of which either explicitly or 

implicitly addressed both actions. For 

example, several comments objected in 

general terms to allowing operation of 

coal fired power plants. We responded 

to comments on the FCPP FIP in a 

Federal Register Notice on May 7, 2007 

(72 FR 25698). Some of our responses to 

comments in this action are identical or 

very similar to the response to 

comments for the FCPP FIP because the 

comments were identical or similar. 

Commenters raised concerns which 

focused on general issues about air 

quality and health in the area, and more 

specific concerns about the emission 

limits and control requirements in the 

proposed FIP. The one comment letter 

received relating exclusively to NGS 

was from SRP and raised specific 

technical issues. Significant comments, 

including SRP’s comments, are 

summarized below. 

Our complete Response to Comments 

is contained in a separate document in 

the docket for this rulemaking. A 

summary of the significant comments 

and responses is provided below. 

A. Concerns About the Scope of the FIP 

Comment: The majority of 

commenters objecting to both the FCPP 

and NGS FIPs indicated that EPA 

should go beyond merely federalizing 

the emission limits which NGS has 

historically followed. Other commenters 

urged EPA to take regulatory action to 

regulate or to further reduce emissions 

of SO2, NOX, PM, mercury, and ‘‘toxic 

emissions.’’ Commenters raised a variety 

of general concerns regarding impacts 

associated with coal fired power plants 

such as NGS, including public health 

and/or environmental impacts of 

fugitive dust from coal mining, mercury 

(Hg) and carbon dioxide (CO2, 

greenhouse gases). Another commenter 

argued that in issuing a FIP for NGS, 

EPA must comply not only with all of 

the requirements of section 301 of the 

CAA but also ensure through the FIP 

process that NGS is in compliance with 

all applicable federal and state ambient 

standards by complying with the 

requirements of section 110 of the CAA 

addressing State implementation plans. 

Response: As stated above, EPA’s 

authority to promulgate this sourcespecific FIP is based on CAA sections 

301(a) and (d)(4) and the regulations 

implementing these provisions at 40 

CFR Part 49. Today’s action is not based 

on, nor is it subject to the requirements 

of, CAA section 110. CAA section 

301(d)(4) provides EPA with broad 

discretion to promulgate regulations 

directly for sources located in Indian 

country. The Tribal Air Rule provides 

EPA with ‘‘discretion to determine what 

rulemaking is necessary or appropriate 

to protect air quality and requires the 

EPA to promulgate such rulemaking.’’ 

Arizona Public Service Company v. 

USEPA, 562 F.3d 1116, 1125 (10th Cir. 

2009). 

EPA is exercising its discretion to 

promulgate emission limitations for 

NGS to close the regulatory gap that 

exists with respect to NGS. As 

explained above, at present there is no 

approved implementation plan covering 

NGS because the Arizona SIP does not 

apply to sources located on the Navajo 

Indian Reservation and the Navajo 

Nation has not promulgated an 

applicable Tribal Implementation Plan. 

EPA’s exercise of authority in issuing 

this FIP is based on the Agency’s 

conclusion that it is appropriate to 

protect air quality on the Reservation by 

remedying the lack of federally 

enforceable limits applicable to NGS. As 

such, our action is largely limited to 

making enforceable those emissions 

limits which NGS has historically 

followed and re-codifying the 

limitations applicable to NGS in the 

visibility FIP for Arizona. We have also 

finalized our proposal to lower the 

opacity limit and to add certain material 

handling measures to provide additional 

benefits to air quality and visibility, and 

to conform to revisions that have been 

approved into the Arizona SIP. 

Today’s action is an important step in 

protecting air quality on the 

Reservation. As noted in the proposal, 

this action will contribute towards 

ensuring continued maintenance of the 

NAAQS and towards protecting 

visibility. EPA acknowledges that 

additional regulatory actions by EPA 

may be necessary or appropriate in the 

future to further protect air quality on 

the Navajo Reservation, depending on, 

among other things, conditions on the 

Reservation and the decisions of the 

Navajo Nation to implement air quality 

programs. Our detailed response to 

comments on mercury, CO2 and other 

emissions is discussed further below 

and in our Response to Comments 

document. 

B. Comments on Emissions Limits 

Comment: Several commenters urged 

EPA to take regulatory action in 

addition to the proposed FIP to require 

reductions of NOX and PM emissions 

from NGS. In particular, several 

commenters urged EPA to undertake a 

determination of best available retrofit 

technology (BART) for NGS’s NOX

emissions. See 40 U.S.C. 7491(b)(2)(A). 

One commenter noted that NGS is the 

8th largest NOX emitter in the U.S. and 

that the FIP was not addressing NOX or 

the environmental impact from the NOX

emissions. The commenter also 

requested an explanation of when and at 

what levels BART limits would be 

applied to PM, mercury, VOC and other 

pollutants. 

Response: EPA agrees that it may be 

necessary or appropriate in a future 

rulemaking to require NGS to reduce its 

NOX or PM emissions below those 

levels which were historically contained 

in the Arizona SIP (and are now 

contained in this FIP) or which are 

necessary to comply with the Acid Rain 

program. In the 1991 revision of the 

visibility FIP that created SO2 emission 

limits for NGS, EPA concluded that 

those limits achieved greater reasonable 

progress than would BART, but did not 

address emissions of NOX or PM from 

NGS. Today’s rule does not address the 

requirements of EPA’s nationally 

applicable Regional Haze rule, codified 

at 40 CFR 51.308, which contains 

specific implementation plan 

requirements regarding BART 

determinations.1

EPA recognizes, however, the 

importance of addressing emissions of 

NOX and PM from NGS for purposes of 

addressing NGS’s contribution to 

visibility impairment. EPA has 

requested and SRP has submitted an 

analysis of the NOX and PM control 

options to address BART. This 

document and supplemental submittals 

are available on the docket EPA has 

prepared for the BART rulemaking 

available at: http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=EPA-R09- 

OAR-2008-0454. 

EPA is reviewing the information 

provided, and consulting with the 

Federal Land Manager(s), States with 

Class I areas impacted by NGS, and 

tribes to determine the appropriate 

BART limits for NGS. On August 28, 

2009, EPA issued an Advance Notice of 

Proposed Rulemaking (‘‘ANPR’’) 

concerning the anticipated visibility 

improvements and the cost effectiveness 

for different levels of air pollution 

controls as BART for NGS and for 

another coal-fired power plant located 

on the Navajo Nation, Four Corners 

Power Plant (‘‘FCPP’’). EPA issued the 

ANPR for the specific purpose of 

collecting additional information that 

EPA may consider in modeling the 

degree of anticipated visibility 


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Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Rules and Regulations 10177 

improvements in the Class I areas 

surrounding the two power plants and 

for determining whether BART controls 

are cost effective at this time. EPA also 

requested any additional information 

that commenters believe the agency 

should consider in promulgating a FIP 

establishing BART for the two power 

plants. 

After considering the information 

received in response to the ANPR and 

other relevant information, EPA intends 

to publish separate FIPs proposing 

EPA’s BART determinations for FCPP 

and NGS under the Regional Haze rules. 

After evaluating all comments on the 

proposed BART determination for NGS, 

EPA will take final action regarding the 

BART requirements at NGS. 

Although it is unlikely that VOC 

emitted from NGS will be regulated for 

visibility protection under the Regional 

Haze rules, comments concerning the 

contribution of VOCs to visibility 

impairment are more appropriately 

considered during the regional haze 

rulemaking discussed above. 

Historically, VOC emissions from coalfired electric generating units (EGUs) 

have not been considered a significant 

contributor to visibility impairment, and 

EPA knows of no states in the West that 

are considering setting limits on coalfired EGU VOC emissions for regional 

haze. In the West, the quantity of 

emissions of VOC from EGUs is 

relatively insignificant compared to the 

quantity of VOC emissions from 

biogenic sources, fires, or mobile 

sources. 

EPA is not considering setting a BART 

limit for mercury as there is no evidence 

that mercury contributes to visibility 

impairment. On October 28, 2009, 

pursuant to CAA section 113(g), EPA 

published in the Federal Register for 

comment a proposed Consent Decree 

that would require the Agency to 

propose CAA section 112(d) standards 

to control hazardous air pollutants, 

including mercury, from coal- and oilfired electric utility steam generating 

units by March 16, 2011, and issue final 

section 112(d) standards by November 

16, 2011. EPA will request public 

comment on that rulemaking and will 

consider any significant comments on 

this issue that are raised during our 

section 112(d) rulemaking. 

Comment: SRP requested that the 

particulate matter limit in the proposed 

rule be revised for better clarity. The 

requested changes included that 

compliance would be determined from 

at least three test runs over a 60 minute 

duration at each stack. 

Response: EPA agrees with SRP’s 

proposed changes to the particulate 

matter limit and has made the 

appropriate revisions in the final rule 

which include specifying at least three 

60 minute sampling runs for each stack. 

This also changes the averaging time for 

the particulate matter limit from the 

proposed 6 hour average to a three hour 

average based on three runs lasting 

approximately one hour each. 

Comment: SRP requested the end of 

the startup limit for NGS be increased 

from 300 to 400 MW to maintain 

consistency with the end of the startup 

limit for FCPP. 

Response: Other than noting that EPA 

allowed a startup termination limit of 

400 MW for FCPP, SRP has not 

provided an explanation as to why a 

startup termination limit of 400 MW is 

more appropriate for NGS than 300 MW. 

The critical factor in the startup is that 

the hot side ESP reaches 400° so that it 

may be expected to operate properly. 

This temperature can be reached when 

the NGS units reach 300 MW. To allow 

the startup to extend beyond this 

operating level simply because EPA 

agreed to it for FCPP, which has 

completely different control technology 

with different operational limitations, is 

not reasonable. Given that the control 

technology at NGS is different from the 

control technology at FCPP, and that 

NGS provided no technical justification 

for making the change from 300 MW to 

400 MW, EPA maintains the 300 MW 

startup termination limit for NGS along 

with the proposed 400° precipitator 

temperature. 

Comment: SRP requested a change to 

the shutdown definition, because they 

claimed that the first sentence, which 

referred to cessation of coal burning, 

was incorrect. 

Response: EPA agrees and dropped 

the first sentence of the definition 

referring to cessation of coal burning, 

since coal may still be combusted when 

a unit load reaches 300 MW or less and 

the intention is to remove the unit from 

service. 

Comment: SRP requested that NGS be 

exempt from opacity monitoring 

requirements, consistent with 40 CFR 

75.14(b) which exempts units equipped 

with a wet flue pollution control system 

for SO2 or particulates from the 

monitoring requirements of part 75, if 

the source ‘‘can demonstrate that 

condensed water is present in the 

exhaust flue gas stream and would 

impede the accuracy of opacity 

measurements.’’ 

Response: EPA agrees with SRP’s 

comments that when the stack is 

saturated and has uncombined water 

droplets, the Continuous Opacity 

Monitoring Systems (COMs) cannot 

correctly read the opacity due to 

particulate matter and has updated the 

final rule to reflect this change; 

however, NGS will continue to have a 

requirement to operate COMs on each 

stack since the COMs do operate 

properly during start-up and at other 

times when the SO2 scrubbers are 

bypassed for maintenance purposes. 

SRP has operated the monitors for a 

number of years and EPA does not find 

that an exemption allowed in part 75 is 

appropriate in this rule. 

III. Administrative Requirements 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not ‘‘significant 

regulatory action’’ under the terms of 

‘‘Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the EO. This 

action will finalize a source-specific FIP 

for the Navajo Generating Station on the 

Navajo Nation. 

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 FIP applies to a single 

facility, NGS, 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 


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2 ‘‘Representatives of State and local governments’’ 

include non-elected officials of State and local 

governments and any representative national 

organizations not listed in footnote 3. 

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 final action on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

The FIP for NGS being finalized today 

does not impose any new requirements 

on small entities. See Mid-Tex Electric 

Cooperative, Inc. v. FERC, 773 F.2d 327 

(D.C. Cir. 1985) 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector. Therefore, this action 

is not subject to the requirements of 

sections 202 or 205 of the UMRA. This 

action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

action will make emissions limits from 

a single source federally enforceable. 

E. Executive Order 13132: Federalism 

Under section 6(b) of Executive Order 

13132, EPA may not issue an action that 

has federalism implications, that 

imposes substantial direct compliance 

costs, and that is not required by statute, 

unless the Federal government provides 

the funds necessary to pay the direct 

compliance costs incurred by State and 

local governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

action. In addition, under section 6(c) of 

Executive Order 13132, EPA may not 

issue an action that has federalism 

implications and that preempts State 

law, unless the Agency consults with 

State and local officials early in the 

process of developing the proposed 

action. 

EPA has concluded that this action 

may have federalism implications 

because it makes emissions limits from 

a specific source federally enforceable. 

However, it will not impose substantial 

direct compliance costs on State or local 

governments, nor will it preempt State 

law. Thus, the requirements of sections 

6(b) and 6(c) of the Executive Order do 

not apply to this action. 

Consistent with EPA policy, EPA 

nonetheless consulted with 

representatives of State and local 

governments 2 early in the process of 

developing the proposed action to 

permit them to have meaningful and 

timely input into its development. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, Nov. 9, 2000), requires EPA to 

develop ‘‘an accountable process to 

ensure meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ Under Executive Order 

13175, to the extent practicable and 

permitted by law, EPA may not issue a 

regulation that has tribal implications, 

that imposes substantial direct 

compliance costs on Indian tribal 

governments, and that is not required by 

statute, unless the Federal government 

provides the funds necessary to pay 

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. In addition, to the extent 

practicable and permitted by law, EPA 

may not issue a regulation that has tribal 

implications and pre-empts tribal law 

unless EPA consults with tribal officials 

early in the process of developing the 

proposed regulation and prepares a 

tribal summary impact statement. 

EPA has concluded that this final rule 

may have tribal implications because it 

will impose federally enforceable 

emissions limitations on a major 

stationary source located and operating 

on the Navajo reservation. However, this 

final rule will neither impose 

substantial direct compliance costs on 

tribal governments nor pre-empt Tribal 

law because the final FIP imposes 

obligations only on the owner or 

operator of NGS. 

EPA has also consulted extensively 

with officials of the Navajo Nation in 

the process of developing this 

regulation. EPA had discussions with 

Tribal representatives during proposal 

of the FIP in 1999. We also consulted 

prior to the 2006 FIP proposal and 

Tribal officials attended the public 

information workshop and public 

hearing on the proposed FIP in 2006. 

Therefore, EPA has allowed the Navajo 

Nation to provide meaningful and 

timely input into the development of 

this rule. 

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 only makes 

previously applicable emissions 

standards federally enforceable. Because 

this action federalizes existing 

requirements, it is not economically 

significant as defined under Executive 

Order 12866, and does not have a 

disproportionate effect on children. 

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 No. 

104–113, 12 (10) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 


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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 

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. 

SO2—EPA Method 6C and Performance 

Specification 2 for Continuous SO2

Monitoring. 

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 final rule 

requires emissions reductions and 

makes emissions limitations federally 

enforceable for a major stationary 

source. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. section 801 et seq., as added by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

generally provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. EPA will submit a report 

containing this rule and other required 

information to the U.S. Senate, the U.S. 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

will be effective April 5, 2010. 

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 May 4, 2010. 

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: February 25, 2010. 

Lisa P. Jackson, 

Administrator. 

■ Chapter I, title 40 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. 

Subpart A—[Amended] 

■ 2. Section 49.24 is added to subpart A 

to read as follows: 

§ 49.24 Federal Implementation Plan 

Provisions for Navajo Generating Station, 

Navajo Nation. 

(a) Applicability. The provisions of 

this section shall apply to each owner 

or operator of the fossil fuel-fired, 

steam-generating equipment designated 

as Units 1, 2, and 3, equipment 

associated with coal and ash handling, 

and the two auxiliary steam boilers at 

the Navajo Generating Station (NGS) on 

the Navajo Nation located in the 

Northern Arizona Intrastate Air Quality 

Control Region (see 40 CFR 81.270). 

(b) Compliance Dates. Compliance 

with the requirements of this section is 

required upon the effective date of this 

section. 

(c) Definitions. For the purposes of 

this section: 

(1) Absorber upset transition period 

means the 24-hour period following an 

upset of an SO2 absorber module which 

resulted in the absorber being taken out 

of service. 

(2) Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or defense put forward by a 

defendant, regarding which the 

defendant has the burden of proof, and 

the merits of which are independently 

and objectively evaluated in a judicial 

or administrative proceeding. This rule 

provides an affirmative defense to 

actions for penalties brought for excess 

emissions that arise during certain 

malfunction episodes. 

(3) Malfunction means any sudden 

and unavoidable failure of air pollution 

control equipment or process equipment 

or of a process to operate in a normal 

or usual manner. Failures that are 

caused entirely or in part by poor 

maintenance, careless operation, or any 

other preventable upset condition or 

preventable equipment breakdown shall 

not be considered malfunctions. An 

affirmative defense is not available if 

during the period of excess emissions, 

there was an exceedance of the relevant 

ambient air quality standard that could 

be attributed to the emitting source. 


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(4) Owner or Operator means any 

person who owns, leases, operates, 

controls or supervises the NGS, any of 

the fossil fuel-fired, steam-generating 

equipment at the NGS, or the auxiliary 

steam boilers at the NGS. 

(5) Plant-wide means a weighted 

average of particulate matter and SO2

emissions for Units 1, 2, and 3 based on 

the heat input to each unit as 

determined by 40 CFR part 75. 

(6) Point source means any crusher, 

any conveyor belt transfer point, any 

pneumatic material transferring, any 

baghouse or other control devices used 

to capture dust emissions from loading 

and unloading, and any other stationary 

point of dust that may be observed in 

conformance with Method 9 of 

Appendix A–4 of 40 CFR Part 60 

(excluding stockpiles). 

(7) Regional Administrator means the 

Regional Administrator of the 

Environmental Protection Agency 

Region 9 or his/her authorized 

representative. 

(8) Startup shall mean the period from 

start of fires in the boiler with fuel oil, 

to the time when the electrostatic 

precipitator is sufficiently heated such 

that the temperature of the air preheater 

inlet reaches 400 degrees Fahrenheit 

and when a unit reaches 300 MW net 

load. Proper startup procedures shall 

include energizing the electrostatic 

precipitator prior to the combustion of 

coal in the boiler. This rule provides an 

affirmative defense to actions for 

penalties brought for excess emissions 

that arise during startup episodes. An 

affirmative defense is not available if 

during the period of excess emissions, 

there was an exceedance of the relevant 

ambient air quality standard that could 

be attributed to the emitting source. 

(9) Shutdown shall begin when the 

unit drops below 300 MW net load with 

the intent to remove the unit from 

service. The precipitator shall be 

maintained in service until boiler fans 

are disengaged. This rule provides an 

affirmative defense to actions for 

penalties brought for excess emissions 

that arise during shutdown episodes. An 

affirmative defense is not available if 

during the period of excess emissions, 

there was an exceedance of the relevant 

ambient air quality standard that could 

be attributed to the emitting source. 

(10) Oxides of nitrogen (NOX) means 

the sum of nitrogen oxide (NO) and 

nitrogen dioxide (NO2) in the flue gas, 

expressed as nitrogen dioxide. 

(d) Emissions Limitations and Control 

Measures—(1) Sulfur Oxides. No owner 

or operator shall discharge or cause the 

discharge of sulfur oxides into the 

atmosphere from Units 1, 2, or 3 in 

excess of 1.0 pound per million British 

thermal units (lb/MMBtu) averaged over 

any three (3) hour period, on a plantwide basis. 

(2) Particulate Matter. No owner or 

operator shall discharge or cause the 

discharge of particulate matter into the 

atmosphere in excess of 0.060 lb/ 

MMBtu, on a plant-wide basis, as 

averaged from at least three sampling 

runs per stack, each at a minimum of 60 

minutes in duration, each collecting a 

minimum sample of 30 dry standard 

cubic feet. 

(3) Dust. Each owner or operator shall 

operate and maintain the existing dust 

suppression methods for controlling 

dust from the coal handling and storage 

facilities. Within ninety (90) days after 

promulgation of these regulations the 

owner or operator shall submit to the 

Regional Administrator a description of 

the dust suppression methods for 

controlling dust from the coal handling 

and storage facilities, fly ash handling 

and storage, and road sweeping 

activities. Each owner or operator shall 

not emit dust with an opacity greater 

than 20% from any crusher, grinding 

mill, screening operation, belt conveyor, 

truck loading or unloading operation, or 

railcar unloading station, as determined 

using 40 CFR Part 60, Appendix A–4 

Method 9. 

(4) Opacity. No owner or operator 

shall discharge or cause the discharge of 

emissions from the stacks of Units 1, 2, 

or 3 into the atmosphere exhibiting 

greater than 20% opacity, excluding 

condensed uncombined water droplets, 

averaged over any six (6) minute period 

and 40% opacity, averaged over six (6) 

minutes, during absorber upset 

transition periods. 

(e) Testing and Monitoring. (1) On and 

after the effective date of this regulation, 

the owner or operator shall maintain 

and operate Continuous Emissions 

Monitoring Systems (CEMS) for NOx 

and SO2 and Continuous Opacity 

Monitoring Systems (COMS) on Units 1, 

2, and 3 in accordance with 40 CFR 60.8 

and 60.13(e), (f), and (h), and Appendix 

B of Part 60. The owner or operator shall 

comply with the quality assurance 

procedures for CEMS and COMS found 

in 40 CFR part 75. 

(2) The owner or operator shall 

conduct annual mass emissions tests for 

particulate matter on Units 1, 2, and 3, 

operating at rated capacity, using coal 

that is representative of that normally 

used. The tests shall be conducted using 

the appropriate test methods in 40 CFR 

Part 60, Appendix A. 

(3) During any calendar year in which 

an auxiliary boiler is operated for 720 

hours or more, and at other times as 

requested by the Administrator, the 

owner or operator shall conduct mass 

emissions tests for sulfur dioxide, 

nitrogen oxides and particulate matter 

on the auxiliary steam boilers, operating 

at rated capacity, using oil that is 

representative of that normally used. 

The tests shall be conducted using the 

appropriate test methods in 40 CFR Part 

60, Appendix A. For particulate matter, 

testing shall consist of three test runs. 

Each test run shall be at least sixty (60) 

minutes in duration and shall collect a 

minimum volume of thirty (30) dry 

standard cubic feet. 

(4) The owner or operator shall 

maintain two sets of opacity filters for 

each type of COMS, one set to be used 

as calibration standards and one set to 

be used as audit standards. At least one 

set of filters shall be on site at all times. 

(5) All emissions testing and monitor 

evaluation required pursuant to this 

section shall be conducted in 

accordance with the appropriate method 

found in 40 CFR Part 60, Appendices A 

and B. 

(6) The owner or operator shall 

install, maintain and operate ambient 

monitors at Glen Canyon Dam for 

particulate matter (PM2.5 and PM10), 

nitrogen dioxide, sulfur dioxide, and 

ozone. Operation, calibration and 

maintenance of the monitors shall be 

performed in accordance with 40 CFR 

Part 58, manufacturer’s specification, 

and ‘‘Quality Assurance Handbook for 

Air Pollution Measurements Systems’’, 

Volume II, U.S. EPA as applicable to 

single station monitors. Data obtained 

from the monitors shall be reported 

annually to the Regional Administrator. 

All particulate matter samplers shall 

operate at least once every six days, 

coinciding with the national particulate 

sampling schedule. 

(7) Nothing herein shall limit EPA’s 

ability to ask for a test at any time under 

section 114 of the Clean Air Act, 42 

U.S.C. 7413, and enforce against any 

violation of the Clean Air Act or this 

section. 

(8) A certified EPA Reference Method 

9 of Appendix A–4 of 40 CFR Part 60 

observer shall conduct a weekly visible 

emission observation for the equipment 

and activities described under Section 

49.24(d)(3). If visible emissions are 

present at any of the equipment and/or 

activities, a 6-minute EPA Reference 

Method 9 observation shall be 

conducted. The name of the observer, 

date, and time of observation, results of 

the observations, and any corrective 

actions taken shall be noted in a log. 

(f) Reporting and Recordkeeping 

Requirements. Unless otherwise stated 

all requests, reports, submittals, 

notifications and other communications 

to the Regional Administrator required 

by this section shall be submitted to the 


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Director, Navajo Environmental 

Protection Agency, P.O. Box 339, 

Window Rock, Arizona 86515, (928) 871 

–7692, (928) 871–7996 (facsimile), and 

to the Director, Air Division, U.S. 

Environmental Protection Agency, 

Region IX, to the attention of Mail Code: 

AIR–5, at 75 Hawthorne Street, San 

Francisco, California 94105, (415) 972– 

3990, (415) 947–3579 (facsimile). For 

each unit subject to the emissions 

limitations in this section the owner or 

operator shall: 

(1) Comply with the notification and 

recordkeeping requirements for testing 

found in 40 CFR 60.7. All data/reports 

of testing results shall be submitted to 

the Regional Administrator and 

postmarked within 60 days of testing. 

(2) For excess emissions, notify the 

Navajo Environmental Protection 

Agency Director and the U.S. 

Environmental Protection Agency 

Regional Administrator by telephone or 

in writing within one business day. This 

notification should be sent to the 

Director, Navajo Environmental 

Protection Agency, by mail to: P.O. Box 

339, Window Rock, Arizona 86515, or 

by facsimile to: (928) 871–7996 

(facsimile), and to the Regional 

Administrator, U.S. Environmental 

Protection Agency Region 9, by mail to 

the attention of Mail Code: AIR–5, at 75 

Hawthorne Street, San Francisco, 

California 94105, by facsimile to: (415) 

947–3579 (facsimile), or by e-mail to: 

r9.aeo@epa.gov. A complete written 

report of the incident shall be submitted 

to the Regional Administrator within 

ten (10) working days after the event. 

This notification shall include the 

following information: 

(i) The identity of the stack and/or 

other emissions points where excess 

emissions occurred; 

(ii) The magnitude of the excess 

emissions expressed in the units of the 

applicable emissions limitation and the 

operating data and calculations used in 

determining the magnitude of the excess 

emissions; 

(iii) The time and duration or 

expected duration of the excess 

emissions; 

(iv) The identity of the equipment 

causing the excess emissions; 

(v) The nature and cause of such 

excess emissions; 

(vi) If the excess emissions were the 

result of a malfunction, the steps taken 

to remedy the malfunction and the steps 

taken or planned to prevent the 

recurrence of such malfunction; and 

(vii) The steps that were taken or are 

being taken to limit excess emissions. 

(3) Notify the Regional Administrator 

verbally within one business day of 

determination that an exceedance of the 

NAAQS has been measured by a 

monitor operated in accordance with 

this regulation. The notification to the 

Regional Administrator shall include 

the time, date, and location of the 

exceedance, and the pollutant and 

concentration of the exceedance. 

Compliance with this paragraph (f)(3)(v) 

shall not excuse or otherwise constitute 

a defense to any violations of this 

section or of any law or regulation 

which such excess emissions or 

malfunction may cause. The verbal 

notification shall be followed within 

fifteen (15) days by a letter containing 

the following information: 

(i) The time, date, and location of the 

exceedance; 

(ii) The pollutant and concentration of 

the exceedance; 

(iii) The meteorological conditions 

existing 24 hours prior to and during the 

exceedance; 

(iv) For a particulate matter 

exceedance, the 6-minute average 

opacity monitoring data greater than 

20% for the 24 hours prior to and 

during the exceedance; and 

(v) Proposed plant changes such as 

operation or maintenance, if any, to 

prevent future exceedances. 

(4) Submit quarterly excess emissions 

reports for sulfur dioxide and opacity as 

recorded by CEMS and COMS together 

with a CEMS data assessment report to 

the Regional Administrator no later than 

30 days after each calendar quarter. The 

owner or operator shall complete the 

excess emissions reports according to 

the procedures in 40 CFR 60.7(c) and (d) 

and include the Cylinder Gas Audit. 

Excess opacity due to condensed water 

vapor in the stack does not constitute a 

reportable exceedance; however, the 

length of time during which water vapor 

interfered with COMs readings should 

be summarized in the 40 CFR 60.7 (c) 

report. 

(g) Compliance Certifications. 

Notwithstanding any other provision in 

this implementation plan, the owner or 

operator may use any credible evidence 

or information relevant to whether a 

source would have been in compliance 

with applicable requirements if the 

appropriate performance or compliance 

test had been performed, for the purpose 

of submitting compliance certifications. 

(h) Equipment Operations. The owner 

or operator shall operate all equipment 

or systems needed to comply with this 

section in accordance with 40 CFR 

60.11(d) and consistent with good 

engineering practices to keep emissions 

at or below the emissions limitations in 

this section, and following outages of 

any control equipment or systems the 

control equipment or system will be 

returned to full operation as 

expeditiously as practicable. 

(i) Enforcement. (1) Notwithstanding 

any other provision in this 

implementation plan, any credible 

evidence or information relevant to 

whether a source would have been in 

compliance with applicable 

requirements if the appropriate 

performance or compliance test had 

been performed, can be used to establish 

whether or not a person has violated or 

is in violation of any standard in the 

plan. 

(2) During periods of start-up and 

shutdown the otherwise applicable 

emission limits or requirements for 

opacity and particulate matter shall not 

apply provided that: (i) At all times the 

facility is operated in a manner 

consistent with good practice for 

minimizing emissions, and the owner or 

operator uses best efforts regarding 

planning, design, and operating 

procedures to meet the otherwise 

applicable emission limit; 

(ii) The frequency and duration of 

operation in start-up or shutdown mode 

are minimized to the maximum extent 

practicable; and 

(iii) The owner or operator’s actions 

during start-up and shutdown periods 

are documented by properly signed, 

contemporaneous operating logs, or 

other relevant evidence. 

(3) Emissions in excess of the level of 

the applicable emission limit or 

requirement that occur due to a 

malfunction shall constitute a violation 

of the applicable emission limit. 

However, it shall be an affirmative 

defense in an enforcement action 

seeking penalties if the owner or 

operator has met with all of the 

following conditions: 

(i) The malfunction was the result of 

a sudden and unavoidable failure of 

process or air pollution control 

equipment and did not result from 

inadequate design or construction of the 

process or air pollution control 

equipment; 

(ii) The malfunction did not result 

from operator error or neglect, or from 

improper operation or maintenance 

procedures; 

(iii) The excess emissions were not 

part of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance; 

(iv) Steps were immediately taken to 

correct conditions leading to the 

malfunction, and the amount and 

duration of the excess emissions caused 

by the malfunction were minimized to 

the maximum extent practicable; 

(v) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality; 


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10182 Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Rules and Regulations 

(vi) All emissions monitoring systems 

were kept in operation if at all possible; 

and 

(vii) The owner or operator’s actions 

in response to the excess emissions 

were documented by properly signed, 

contemporaneous operating logs, or 

other relevant evidence. 

[FR Doc. 2010–4542 Filed 3–4–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2010–0011; FRL–9122–4] 

Approval and Promulgation of 

Implementation Plans; State of Iowa 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the Iowa 

State Implementation Plan (SIP) 

submitted by the State on April 28, 

2009. The purpose of these revisions is 

to update existing air quality rules; 

make corrections, clarifications and 

improvements; and to add information 

with regard to the application of permit 

exemptions. EPA is approving the SIP 

revisions pursuant to section 110 of the 

Clean Air Act. 

DATES: This direct final rule will be 

effective May 4, 2010, without further 

notice, unless EPA receives adverse 

comment by April 5, 2010. If EPA 

receives adverse comment, we will 

publish a timely withdrawal of the 

direct final rule in the Federal Register 

informing the public that the rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2010–0011, by one of the 

following methods: 

1. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: casburn.tracey@epa.gov. 

3. Mail or Hand Delivery: Tracey 

Casburn, Environmental Protection 

Agency, Air Planning and Development 

Branch, 901 North 5th Street, Kansas 

City, Kansas 66101. 

Instructions: Direct your comments to 

Docket ID No. EPA–R07–OAR–2010– 

0011. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http:// 

www.regulations.gov or e-mail 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Air Planning and Development Branch, 

901 North 5th Street, Kansas City, 

Kansas 66101. The Regional Office’s 

official hours of business are Monday 

through Friday, 8 a.m. to 4:30 p.m. 

excluding Federal holidays. Interested 

persons wanting to examine these 

documents should make an 

appointment with the office at least 24 

hours in advance. 

FOR FURTHER INFORMATION CONTACT: 

Tracey Casburn at (913) 551–7016, or by 

e-mail at casburn.tracey@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ’’us,’’ or 

‘‘our’’ refer to the EPA. 

Table of Contents 

I. What is being addressed in this document? 

II. What revisions is EPA approving? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is being addressed in this 

document? 

The State has revised Chapter 22 of 

the State air pollution control rules 

promulgated by the State’s 

Environmental Protection Commission. 

EPA is approving the revisions 

described below for the reasons 

discussed in this document. 

II. What revisions is EPA approving? 

The State made revisions to Chapter 

22, ‘‘Controlling Pollution,’’ to clarify the 

terms and conditions of permit 

exemptions for certain internal 

combustion engines and spray booths. 

Those revisions are described in this 

document. 

The State added a requirement to 

Iowa Rule 567–22.1(2)‘‘r’’ that the owner 

or operator of an internal combustion 

engine with a brake horsepower of less 

than 400, measured at the shaft, must 

submit a certification to the Iowa 

Department of Natural Resources that 

the engine is in compliance with 

Federal New Source Performance 

Standards listed at 40 CFR Part 60, 

Subpart IIII or Subpart JJJJ and Federal 

National Emission Standards for 

Hazardous Air Pollutants (NESHAPS) 

listed at 40 CFR Part 63, Subpart ZZZZ. 

The State amended Iowa Rule 567– 

22.8(1) to add clarification that the 

facilities, which spray one gallon per 

day or less of sprayed material on a 

facility-wide basis, are exempt from all 

other requirements of Iowa Rule 567–22 

with the exception that the owner or 

operator must adhere to record keeping 

requirements specified in the rule for 

the sprayed material. The revision also 

requires that the owner or operator must 

certify that the facility is in compliance 

with or otherwise exempt from the 

Federal regulations specified in Iowa 

Rule 567–22.8(1)‘‘e’’ (the NESHAPS for 

paint stripping and surface coating at 

area sources, and the NESHAPS for 

metal fabricating and finishing at area 

sources). 

The State added amendments to the 

same rule clarifying that facilities, 

which spray more than one gallon per 

day but never more than three gallons 

per day on a facility-wide basis, are 

exempt from all other requirements of 

Iowa State Rule 567–22 except the 

owner or operator must adhere to 

certification, recordkeeping and 

emissions venting requirements as 

identified in the rule. The State added 

a requirement that the owner or operator 

must certify that the facility is in 

compliance with or otherwise exempt 

from the Federal regulations specified in 

Iowa Rule 567–22.8(1)‘‘e’’ (described 

above). 


erowe on DSK5CLS3C1PROD with RULES