Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Proposed Rules 62509 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R09–OAR–2013–0009; FRL–9901–66– 

Region9] 

Approval of Air Quality Implementation 

Plans; Navajo Nation; Regional Haze 

Requirements for Navajo Generating 

Station; Supplemental Proposal 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Supplemental proposed rule 

and notice of public hearings. 

SUMMARY: On February 5, 2013, EPA 

published its proposed source-specific 

Federal Implementation Plan (FIP) 

requiring the Navajo Generating Station 

(NGS), located on the Navajo Nation, to 

reduce emissions of oxides of nitrogen 

(NOX) under the Best Available Retrofit 

Technology (BART) provision of the 

Clean Air Act (CAA or Act). EPA 

proposed the BART FIP to reduce 

visibility impairment caused by NGS at 

11 National Parks and Wilderness 

Areas. EPA’s proposed FIP included: (1) 

A proposed BART determination; (2) A 

proposed ‘‘better than BART’’ 

alternative that achieves greater 

reasonable progress towards the 

national visibility goals than BART; and 

(3) a framework for evaluating 

additional alternatives to BART. This 

framework for evaluating additional 

alternatives was included in the 

proposal due to the unique purpose and 

history of NGS and the numerous 

stakeholder interests in it. On March 19, 

2013 and June 19, 2013, EPA provided 

two extensions of the public comment 

period based on requests of several 

stakeholders who were actively working 

to develop an alternative to BART. On 

July 26, 2013, a group of stakeholders, 

known as the Technical Work Group 

(TWG), submitted to EPA their 

suggested alternative to BART (the 

‘‘TWG Alternative’’). The TWG 

Alternative establishes a lifetime cap in 

NOX emissions over 2009–2044 (the 

2009–2044 NOX Cap) that is equivalent 

to the cumulative NOX emissions over 

2009–2044 that NGS would emit under 

EPA’s proposed BART determination of 

0.055 lb/MMBtu achieved within five 

years of the final rule. Due to on-going 

lease and ownership uncertainties, the 

operators of NGS cannot yet commit to 

a single course of action for maintaining 

emissions below the 2009–2044 NOX

Cap. The TWG Alternative therefore 

includes several alternative operating 

scenarios for meeting the 2009–2044 

NOX Cap. EPA did not participate in the 

TWG or assist in developing the TWG 

Alternative, and has independently 

evaluated the TWG Alternative to 

determine if it meets the requirements 

of the CAA and the Regional Haze Rule 

(RHR). In this action, EPA is proposing 

to determine that the TWG Alternative 

is ‘‘better than BART’’ because 

maintaining emissions below the 2009– 

2044 NOX Cap, as provided in the TWG 

Alternative, achieves greater reasonable 

progress than EPA’s proposed BART 

determination towards the national 

visibility goal. EPA is accepting 

comment concurrently on today’s 

Supplemental Proposal and our 

proposal from February 5, 2013. 

DATES: Comments on EPA’s February 5, 

2013 proposal and today’s 

Supplemental Proposal for NGS must be 

postmarked no later than January 6, 

2014. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2013–0009, by one of the 

following methods: 

(1) Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

(2) Email: r9ngsbart@epa.gov. 

(3) Mail or deliver: Anita Lee (Air-2), 

U.S. Environmental Protection Agency 

Region 9, 75 Hawthorne Street, San 

Francisco, CA 94105–3901. 

For more detailed instructions 

concerning how to submit comments on 

this supplemental proposed rule, and 

for more information on our proposed 

rule, please see the notice of proposed 

rulemaking, published in the Federal 

Register on February 5, 2013 (78 FR 

8274). 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. 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. 

Hearings: EPA has scheduled five 

public hearings to accept oral and 

written comments on the proposed 

rulemaking. Prior to, or concurrent with, 

each public hearing, EPA will be 

holding an informal open house to 

allow members of the public additional 

time to review information related to 

EPA’s proposed BART determination 

and Supplemental Proposal, and to 

speak with representatives from EPA. 

Any comments made to EPA staff 

during the open houses must still be 

provided in writing or orally during the 

formal public hearing in order to be 

considered in the record. The open 

house and public hearing schedule is as 

follows: 

1. LeChee Chapter House (Navajo 

Nation), located in LeChee, Arizona, 

three miles south of Page on 

Coppermine Road (Navajo Route 20), 

(928) 698–2805, November 12, 2013, 

concurrent Open House and Public 

Hearing from 10 a.m.–1 p.m., local time; 

2. Page High School Cultural Arts 

Building, 434 Lake Powell Boulevard, 

located in Page, Arizona, (928) 608– 

4138, November 12, 2013, Open House 

from 3–5 p.m., local time and Public 

Hearing from 6–9 p.m., local time; 

3. Hopi Day School, Quarter-Mile East 

Main Street, located in Kykotsmovi, 

Arizona, (928) 734–2467, November 13, 

2013, Open House from 3–5 p.m., local 

time and Public Hearing from 6–9 p.m., 

local time; 

4. Phoenix Convention Center, 100 

North 3rd Street, located in Phoenix, 

Arizona, (602) 262–6225, November 14, 

2013, Open House from 3–5 p.m., local 

time and Public Hearing from 6–10 

p.m., local time; 

5. Proscenium Theatre, Pima 

Community College West Campus, 

Center for the Arts Building located two 

miles west of Interstate–10 on St. Mary’s 

Road, (520) 206–6986, in Tucson, 

Arizona–November 15, 2013, Open 

House from 3–5 p.m., local time and 

Public Hearing from 6–9 p.m., local 

time. 

EPA will provide oral interpretation 

services between English and Dine ́ at 

the open houses and public hearings in 

LeChee and Page. EPA may provide oral 

interpretation services between English 

and the Hopi language at the open 

house and public hearing in 

Kykotsmovi, pending availability of a 

Hopi interpreter. To request additional 

oral interpretation services or to request 

reasonable accommodation for a 

disability, please contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section, by October 21, 2013. 

Verbatim transcripts, in English, of the 

hearings and written statements 

provided at the hearings will be 

included in the docket for this 

rulemaking. 


tkelley on DSK3SPTVN1PROD with PROPOSALS
62510 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Proposed Rules 

1See document titled ‘‘Grand Canyon Annual 

Visitation.pdf’’ within document number 0005 in 

the docket for this proposed rulemaking at EPA– 

R09–OAR–2013–0009. 

2See information on the Central Arizona Project 

at http://www.usbr.gov/projects/Project.jsp?proj_

Name=Central+Arizona+Project. See also report by 

the National Renewable Energy Lab (NREL), 

discussed in more detail in Section G.iii of this 

notice, titled ‘‘Navajo Generating Station and Air 

Visibility Regulations: Alternatives and Impacts’’, 

revision dated March 2012 (NREL report) within 

document number 0005 in the docket for this 

proposed rulemaking at EPA–R09–OAR–2013– 

0009. 

3See Section titled ‘‘Welcome’’ on CAP 

homepage: http://www.cap-az.com/. 4See, for example, Section 4 of the NREL report 

and Comments from the Central Arizona Water 

Conservation District on the NREL report to DOI 

and EPA dated February 23, 201[2], within 

document number 0005 in the docket for this 

proposed rulemaking at EPA–R09–OAR–2013– 

0009. 

5See Table 7, 78 FR at 8283 (February 5, 2013). 

6 Id. 

Oral testimony may be limited to five 

minutes or less for each commenter to 

address the proposal or supplemental 

proposed rule. We will not be providing 

equipment for commenters to show 

overhead slides or make computerized 

presentations. The public hearings for 

the four evening events are scheduled to 

close at 9 p.m. (in Page, Kykotsmovi, 

and Tucson) or 10 p.m. (in Phoenix), but 

may close later, if necessary, depending 

on the number of speakers wishing to 

participate. 

Written statements and supporting 

information submitted electronically or 

by mail during the comment period will 

be considered with the same weight as 

any oral comments and supporting 

information presented at the public 

hearings. If you are unable to attend the 

hearings but wish to submit comments 

on the proposed rule, you may submit 

comments as indicated in the 

ADDRESSES section above. 

Docket: The index to the docket for 

this action is available electronically at 

www.regulations.gov and in hard copy 

at EPA Region 9, 75 Hawthorne Street, 

San Francisco, California. While 

documents in the docket are listed in 

the index, some information may be 

publicly available only at EPA Region 9 

(e.g., maps, voluminous reports, 

copyrighted material), and some may 

not be publicly available in either 

location (e.g., CBI). To inspect the hard 

copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Anita Lee, EPA Region 9, (415) 972– 

3958, r9ngsbart@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. Background 

A. The Significance of the Navajo 

Generating Station 

B. EPA’s February 5, 2013 Proposed BART 

Determination 

C. Technical Work Group Agreement 

II. Legal Background for Proposing the TWG 

Alternative to BART as Achieving 

Greater Progress Towards the National 

Visibility Goal 

III. EPA’s Technical Evaluation of Greater 

Reasonable Progress Towards the 

National Visibility Goal 

A. Summary of TWG Alternative to BART 

B. EPA’s Technical Evaluation of TWG 

Alternative to BART 

IV. EPA’s Supplemental Proposal 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 13563B. Paperwork 

Reduction Act 

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 

I. Background 

A. The Significance of the Navajo 

Generating Station 

NGS is a coal-fired power plant 

located on the Navajo Nation Indian 

Reservation, just east of Page, Arizona, 

approximately 135 miles north of 

Flagstaff, Arizona. Emissions of NOX

from NGS affect visibility at 11 National 

Parks and Wilderness Areas that are 

designated as Class I federal areas, 

mandated by Congress to receive 

heightened protection: Arches National 

Park (NP), Bryce Canyon NP, 

Canyonlands NP, Capitol Reef NP, 

Grand Canyon NP, Mazatzal Wilderness 

Area (WA), Mesa Verde NP, Petrified 

Forest NP, Pine Mountain WA, 

Sycamore Canyon WA, and Zion NP. 

These areas support an active tourism 

industry drawing over four million 

visitors to the Grand Canyon National 

Park alone in 2011.1 NGS is subject to 

the BART requirements of the CAA and 

the RHR based on its age and its effects 

on visibility in Class I areas. For a more 

detailed discussion of our determination 

that NGS is subject to BART and the 

requirements of the RHR, please see our 

proposed FIP at 78 FR 8274 and 8277 

(February 5, 2013). 

NGS is co-owned by six entities: the 

U.S. Bureau of Reclamation 

(Reclamation)—24.3 percent, Salt River 

Project Agricultural Improvement and 

Power District (SRP), which also acts as 

the facility operator—21.7 percent, Los 

Angeles Department of Water and Power 

(LADWP)—21.2 percent, Arizona Public 

Service (APS)—14 percent, Nevada 

Energy (NV Energy, also known as 

Nevada Power Company)—11.3 percent, 

and Tucson Electric Power (TEP)—7.5 

percent. 

Federal participation in NGS was 

authorized in the Colorado River Basin 

Project Act of 1968 as a preferred 

alternative to building hydroelectric 

dams in the Grand Canyon for providing 

power to the Central Arizona Project 

(CAP).2 The CAP is a 336-mile water 

distribution system that delivers about 

1.5 million acre-feet (AF) per year of 

Colorado River water from Lake Havasu 

in western Arizona to non-tribal 

agricultural water users in central 

Arizona, Indian tribes located in 

Arizona, and municipal water users in 

Maricopa, Pinal, and Pima counties.3

The CAP water is used to meet the terms 

of a number of Indian water-rights 

settlements in central Arizona and to 

reduce groundwater usage in the 

region.4 Electricity from NGS powers 

the pumps that move CAP water to its 

destinations along the distribution 

system. 

Several tribes located in Arizona 

including the Gila River Indian 

Community, the Ak-Chin Indian 

Community, the Tohono O’odham 

Nation, the San Carlos Apache Tribe, 

the White Mountain Apache Indian 

Tribe, the Fort McDowell Yavapai 

Nation, the Salt River Pima-Maricopa 

Indian Community, the Navajo Nation, 

the Yavapai-Apache Nation, the Hopi 

Tribe, the Pascua Yaqui Tribe, the 

Yavapai-Prescott Tribe, and the Tonto 

Apache Nation, have CAP water 

allocations or contracts.5 In exchange 

for allocations of CAP water at reduced 

cost and access to funds for the 

development of water infrastructure, the 

tribes with water settlement agreements 

have released their claims to other water 

in Arizona. Excess NGS power owned 

by Reclamation that is not used by CAP 

is sold and profits are deposited into a 

fund to support the tribal water 

settlement agreements.6 The U.S. 

Department of the Interior (DOI or the 

Interior), through Reclamation, plays an 

important role in the implementation of 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Proposed Rules 62511 

7 Id. 

8See document title ‘‘2013_0104 Joint Federal 

Agency Statement on NGS’’ within document 

number 0005 in the docket for this proposed 

rulemaking at EPA–R09–OAR–2013–0009. 

9Unless otherwise noted, the averaging period, 

for all emission limits, is based on a rolling average 

of 30 boiler operating days. 

10 In our proposed rulemaking, we use the term 

‘‘BART threshold’’ to describe the total emissions 

of NOX over 2009–2044 against which Alternatives 

to BART would be compared. Although we use the 

term ‘‘BART benchmark’’ here, the two terms are 

intended to be identical in meaning. 

11The NOX reductions achieved by installing the 

modern LNB/SOFA were not required under any 

regulatory program under the CAA and resulted in 

more NOX emission reductions during the period 

between 2009 and the BART compliance date than 

if LNB/SOFA were installed concurrently with SCR 

by the BART compliance date. 

12See 78 FR 8289 (February 5, 2013). 

13As discussed in greater detail in our proposed 

rule (78 FR at 8289, February 5, 2013), EPA notes 

that LNB with SOFA is a potential control option 

evaluated under BART and that these technologies 

are typically used in conjunction with SCR or other 

add-on controls to first reduce NOX formation 

during combustion. EPA recognizes that the owners 

of NGS could have waited until the compliance 

date of the final BART determination before 

installing any new controls, including LNB/SOFA, 

and that the early and voluntary NOX reductions 

achieved beginning in 2009 were not required 

under any regulatory program under the CAA. 

these settlement agreements and the 

management of the funds set aside for 

water infrastructure development for 

tribes. 

The coal used by NGS is supplied by 

the Kayenta Mine, operated by Peabody 

Energy and located on reservation lands 

of both the Navajo Nation and the Hopi 

Tribe. Taxes and royalties from NGS 

and the Kayenta Mine paid to the 

Navajo Nation and Hopi Tribe 

contribute to the annual revenues for 

both governments.7

Given the extent of federal and tribal 

interests in NGS, on January 4, 2013, 

EPA, DOI, and the Department of Energy 

(DOE) signed a joint federal agency 

statement (Joint Statement) committing 

to collaborate on several short- and 

long-term goals, including analyzing 

and pursuing strategies for providing 

clean, affordable, and reliable power, 

affordable and sustainable water, and 

sustainable economic development to 

key stakeholders who currently depend 

on NGS.8 The Joint Statement also 

recognizes the trust responsibilities of 

the Federal government to Indian tribes. 

B. EPA’s February 5, 2013 Proposed 

BART Determination 

As previously stated, NGS is subject 

to the BART requirements of the CAA 

and the RHR based on its age and its 

effects on visibility in Class I areas. 

Because NGS is located in Indian 

country, and because the Navajo Nation 

has not developed a Tribal 

Implementation Plan to implement the 

BART requirement for NGS, on 

February 5, 2013, EPA proposed a BART 

determination to require NGS to meet a 

NOX emission limit of 0.055 pound per 

million British thermal units of heat 

input (lb/MMBtu) within five years of 

the effective date of a final rule.9 For a 

number of reasons, including the 

importance of NGS to numerous Indian 

tribes located in Arizona and the federal 

government’s reliance on NGS to meet 

the requirements of water settlements 

with several tribes, EPA proposed an 

Alternative to BART (i.e., Alternative 1) 

within the ‘‘better than BART’’ 

framework we outlined. EPA recognized 

that there may be other approaches that 

could result in better visibility benefits 

over time and that there may be changes 

in energy demand, supply, or other 

developments over the next several 

decades that may change electricity 

generation on the Navajo Nation. 

EPA’s proposed ‘‘better than BART’’ 

framework established total emissions 

of NOX over 2009–2044 as the ‘‘BART 

Benchmark’’ against which an 

Alternative to BART would be 

compared.10 EPA’s ‘‘better than BART’’ 

framework included a NOX emission 

credit for the early and voluntary 

installation of LNB/SOFA over the 

2009–2011 timeframe (LNB/SOFA 

credit).11 As discussed in our proposed 

rulemaking, EPA was exercising its 

authority and discretion under section 

301(d)(4) of the CAA and 40 CFR 

49.11(a) to propose an extended 

timeframe for an alternative measure 

under the RHR for NGS. We proposed 

the LNB/SOFA credit supporting an 

extended timeframe based on the 

flexibility under section 301(d)(4) of the 

CAA, and 40 CFR 49.11(a).12 EPA 

applied the LNB/SOFA credit to each 

Alternative to BART (adjusted 

emissions) and compared those values 

against the BART benchmark. Total 

adjusted emissions of an Alternative to 

BART over 2009–2044 that were lower 

than the BART Benchmark were then 

determined to be ‘‘better than BART’’ 

and result in greater reasonable progress 

towards the national visibility goal than 

BART. Conversely, alternatives that 

result in total NOX emissions exceeding 

the BART Benchmark would not be 

acceptable unless those alternatives 

provided additional emission 

reductions to bridge the deficit in NOX

emission reductions. 

To calculate the value of the LNB/

SOFA credit, EPA first calculated the 

total NOX emissions over 2009–2044 

that NGS would emit if NGS had waited 

until the proposed BART compliance 

date to install LNB/SOFA concurrently 

with SCR. EPA then calculated total 

NOX emissions over 2009–2044 with the 

actual installation date of LNB/SOFA in 

2009–2011 and installation of SCR by 

the BART compliance date. The 

difference between the two values was 

calculated to be the LNB/SOFA credit.13

Under EPA’s proposed framework, EPA 

established, as the BART benchmark, 

the total NOX emissions over 2009–2044 

with the actual installation date of LNB/ 

SOFA in 2009–2011 and installation of 

SCR by the BART compliance date. For 

a more detailed discussion of this 

approach, please see our proposed FIP 

at 78 FR at 8288–91. 

EPA applied this framework to several 

alternatives we developed. In the 

February 2013 proposal, we proposed 

one Alternative to BART that would 

provide an additional three to five years 

to NGS in the schedule for the 

installation of new post-combustion 

control equipment to meet the proposed 

BART limit of 0.055 lb/MMBtu (i.e., 

Alternative 1 requiring compliance with 

the proposed BART limit on one unit 

per year in 2021, 2022, and 2023). 

Additional NOX emissions resulting 

from delayed compliance were offset by 

the emissions credit NGS achieved by 

its early and voluntary installation of 

LNB/SOFA. We calculated that under 

this proposed Alternative 1, total 

adjusted emissions of NOX over 2009– 

2044 were lower than total emissions of 

NOX under EPA’s proposed BART 

determination. Therefore, EPA proposed 

to find that Alternative 1 achieves 

greater reasonable progress than BART. 

In the February 2013 proposal, EPA 

also described, but did not propose, two 

additional alternatives (Alternatives 2 

and 3) that would provide an additional 

five to eight years for NGS to meet the 

proposed BART limit of 0.055 lb/

MMBtu (i.e., Alternatives 2 and 3 called 

for compliance with the BART limit on 

one unit per year over 2023–2025 and 

2024–2026, respectively). Total NOX

emissions over 2009–2044, after 

accounting for the LNB/SOFA early 

installation credit, from each of these 

two additional alternatives both 

exceeded the BART Benchmark. 

However, under our proposed 

framework, these two additional 

alternatives would be viable if the 

owners of NGS achieved sufficient 

additional emission reductions to bridge 

the NOX reduction deficit. EPA 

requested comment on our proposed 

‘‘better than BART’’ framework and how 

NGS might achieve the emission 

reduction bridge necessary for the 

longer compliance schedules under 


tkelley on DSK3SPTVN1PROD with PROPOSALS
62512 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Proposed Rules 

14See Fact Sheet at http://www.epa.gov/region9/ 

air/navajo/index.html#proposed. 

15See document number 0172 in the docket for 

this proposed rulemaking at EPA–R09–OAR–2013– 

0009. 

16See ‘‘Technical Work Group Agreement Related 

to Navajo Generating Station (NGS)’’ dated July 25, 

2013, and submitted to EPA on July 26, 2013, in the 

docket for this proposed rulemaking at EPA–R09– 

OAR–2013–0009–0122. 

17See document number 0033 in the docket for 

the proposed rulemaking at EPA–R09–OAR–2013– 

0009. 

18The ‘‘Reasonable Progress Alternative to 

BART’’ is a term from the TWG Agreement. EPA 

interprets this term to have the same meaning as an 

Alternative to BART or a ‘‘better than BART’’ 

Alternative, however, we do not otherwise use this 

term in today’s Supplemental Proposal. 

19SRP expressed concern that the owners of NGS 

may choose to retire the facility if faced with the 

financial risk of making a large capital investment 

within five years without also having certainty that 

the lease and contract re-negotiations would 

conclude in a timely and favorable manner. EPA 

understands that the owners of NGS face numerous 

uncertainties and the unusual requirement to 

comply with NEPA for lease and other rights-of-way 

approvals, which apply only to NGS and Four 

Corners Power Plant, the other coal-fired power 

plant located on the Navajo Nation. EPA also 

understands the importance of the continued 

operation of NGS and the Kayenta Mine to the 

Navajo Nation and Hopi Tribe as a source of direct 

revenues through lease payments or coal royalties, 

as well as the importance of Reclamation’s share of 

NGS to supply water to many tribes located in 

Arizona in accordance with several water 

settlement acts. 

Alternatives 2 and 3 to qualify as ‘‘better 

than BART.’’ 

In both the February 2013 proposal 

and in the accompanying fact sheet, 

EPA encouraged a robust public 

discussion of our proposed BART 

determination, our proposed Alternative 

1, as well as our proposed ‘‘better than 

BART’’ framework and other possible 

alternatives that meet the framework. In 

addition, we recognized the potential 

need for a supplemental proposal if 

other approaches developed by other 

parties are identified as meeting the 

requirements of the CAA.14

After EPA published the proposed FIP 

on February 5, 2013, we received 

requests for a 90-day extension of the 

public comment period from the Navajo 

Nation, the Gila River Indian 

Community, SRP, and the Central 

Arizona Water Conservation District 

(CAWCD), the CAP operating entity, in 

order to allow stakeholders additional 

time to develop alternatives to BART for 

EPA’s consideration. Recognizing the 

significant time and effort necessary to 

develop viable alternatives and the 

critical importance of active 

participation by affected parties in the 

development of alternatives to BART, 

on March 19, 2013, EPA extended the 

close of the public comment period to 

August 5, 2013 (78 FR 16825). 

On June 10, 2013, EPA signed a 

notice, published on June 19, 2013, of 

our intent to hold five public hearings 

throughout the state of Arizona (78 FR 

36716), at one location each on 

reservation lands of the Navajo Nation 

and Hopi Tribe, and in Page, Phoenix, 

and Tucson, Arizona. 

On June 20, 2013, SRP submitted a 

letter, on behalf of itself and certain 

other stakeholders, requesting another 

extension of the comment period for 

NGS. The SRP letter described work that 

had been on-going for several months 

with representatives from several 

organizations (the TWG) to develop an 

Alternative to BART. On July 9, 2013, 

EPA extended the close of the public 

comment period again to October 4, 

2013 (78 FR 41012). On September 16, 

2013, EPA signed a notice extending the 

close of the public comment period a 

third time, to January 6, 2014.15

C. Technical Work Group Agreement 

On July 26, 2013, a group of 

stakeholders known as the TWG and 

composed of the Central Arizona Water 

Conservation District (CAWCD), the 

Environmental Defense Fund (EDF), the 

Gila River Indian Community (Gila 

River, or the Community), the Navajo 

Nation, SRP, on behalf of itself and the 

other non-federal Participants, the 

Department of the Interior, and Western 

Resource Advocates, submitted a 

document memorializing a multi-party 

agreement (the TWG Agreement) to EPA 

for consideration.16 EPA had attended a 

‘‘kick-off’’ meeting for the TWG on 

March 21, 2013, at which we described 

our February 5, 2013 proposal, but EPA 

did not have any further participation in 

the TWG.17 As described in Section III 

of the TWG Agreement, ‘‘Summary of 

Agreement Elements; Reasonable 

Progress Alternative to BART, 

Obligations of Support, and Reservation 

Right’’, the Agreement consists of seven 

elements: (1) A description of a 

‘‘Reasonable Progress Alternative to 

BART’’ (the TWG Alternative); 18 (2) a 

study of options by Reclamation for 

replacing the federal share of energy 

being generated from NGS with lowemitting energy; (3) commitments by 

Interior to reduce or offset emissions of 

carbon dioxide (CO2) by three percent 

per year and facilitate the development 

of clean energy resources; (4) 

commitments by Interior to mitigate 

potential impacts from EPA’s final 

BART rule to Affected Tribes; (5) a 

commitment by Interior to carry out the 

Phase 2 Study by the National 

Renewable Energy Laboratory (NREL) 

for the purposes of studying options for 

the future of NGS; (6) a commitment by 

SRP to make funds available for a Local 

Benefit Fund for community 

improvement projects within 100 miles 

of NGS or the Kayenta Mine; and (7) a 

summary of obligations of the Parties to 

the Agreement and miscellaneous legal 

provisions. 

The TWG Agreement, in its entirety, 

is included in the docket for this 

proposed rulemaking. Appendix B to 

the TWG Agreement is the only 

component of the TWG Agreement that 

is applicable to today’s action. EPA is 

not requesting comment on the 

provisions of the TWG Agreement 

unrelated to Appendix B, and will not 

be responding to comments on aspects 

of the TWG Agreement that are not 

related to our authority under section 

169A of the CAA to require BART or an 

Alternative to BART. 

II. Legal Background for Proposing the 

TWG Alternative to BART as Achieving 

Greater Progress Towards the National 

Visibility Goal 

In our proposed BART determination 

for NGS on February 5, 2013 (78 FR 

8274), we provided a detailed 

discussion of the statutory and 

regulatory framework for addressing 

visibility, addressing sources located in 

Indian country under the Tribal 

Authority Rule (TAR), and developing 

BART determinations pursuant to the 

CAA and the BART Guidelines set forth 

in Appendix Y to 40 CFR Part 51. Please 

see 77 FR 8275–8277 for our discussion 

on these topics. In the following 

paragraphs, we describe the legal 

background and authority for evaluating 

Alternatives to BART and for providing 

additional compliance flexibility to 

NGS. 

Under the CAA, compliance with 

emission limits determined as BART 

must be achieved ‘‘as expeditiously as 

practicable but in no event later than 

five years’’ after the effective date of the 

final BART determination (See CAA 

169A(b)(2)(A) and (g)(4)). Therefore, the 

BART compliance date for NGS would 

be no later than 2019 if the rule is 

finalized in 2014. As discussed in 

greater detail in our proposed BART 

determination, EPA recognizes that the 

circumstances related to NGS create 

unusual and significant challenges for a 

five-year compliance schedule.19 Based 

on those challenges and our discretion 

under the TAR for implementing CAA 

requirements on tribal lands, we 

considered other options that are 

consistent with the CAA and RHR, and 

that provide for a more flexible, 

extended compliance schedule. 

EPA’s BART regulations allow an 

Alternative to BART provided the 

alternative results in greater reasonable 

progress than would have been achieved 


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20The TWG Alternative is divided into distinct 

operating scenarios that the TWG calls Alternative 

A and Alternative B. The TWG Alternative further 

divides Alternative A into sub-scenarios. EPA refers 

to the sub-scenarios under Alternative A as A1, A2, 

and A3. EPA is reviewing all four scenarios 

(Alternatives A1, A2, A3, and B) together as one 

Alternative. 

21The TWG Agreement also states that the TWG 

Alternative is intended to satisfy any requirements 

of the Reasonably Attributable Visibility 

Impairment (RAVI) program. On May 5, 2009, the 

National Parks Conservation Association (NPCA) 

petitioned the Department of the Interior to certify 

that emissions of NOX and particulate matter cause 

visibility impairment at the Grand Canyon National 

Park. This type of visibility impairment, reasonably 

attributable from a single stationary source, is 

known as Reasonably Attributable Visibility 

Impairment (RAVI). On January 20, 2011, NPCA 

filed a complaint in the United States District Court 

for the District of Columbia contending that the 

Department of the Interior was unreasonably 

delaying making a finding of reasonable attribution 

from NGS. In a letter dated March 8, 2011 to NPCA, 

the National Park Service (NPS) declined to make 

such a finding based on EPA’s on-going work 

related to a BART determination for NGS. On June 

30, 2011, the Court dismissed the complaint 

holding the NPS letter refusing to make the finding 

of reasonable attribution constituted denying the 

Petitioner’s request for a RAVI finding. If NPS were 

to certify RAVI at Grand Canyon from NGS, EPA 

must determine whether visibility impairment at 

Grand Canyon is indeed reasonably attributable to 

NGS. If EPA were to make a positive attribution 

determination, then EPA would be required to 

conduct a BART determination for NGS. We note, 

however, that while the process for determining 

whether a given stationary source causes or 

contributes to RAVI or regional haze are different, 

the process for determining BART under both 

programs is essentially the same. In other words, a 

BART determination for RAVI would likely be the 

same as a BART determination for regional haze. 

The 2009 NPCA petition, the 2011 NPCA 

complaint, the 2011 letter from NPS, and the 2011 

Court decision are all included in the docket for 

this proposed rulemaking. 

through installation of BART. 40 CFR 

51.308(e)(2). The regulations provide 

that an Alternative to BART must 

ensure that all necessary emission 

reductions occur within the period of 

the first long-term strategy for regional 

haze (i.e., by 2018) for States that were 

required to submit regional haze SIPs in 

December 2007. 40 CFR 51.308(e)(2)(iii). 

Thus, if states had submitted timely 

regional haze SIPs in 2007 with BART 

compliance deadlines in 2012, the RHR 

provided over five additional years for 

the implementation of Alternatives to 

BART. 

In our February 5, 2013 proposal for 

NGS, EPA proposed an Alternative to 

BART (Alternative 1). In particular, EPA 

proposed that consideration of a 

compliance schedule beyond 2018 for 

Alternative 1 at NGS was appropriate 

for a number of reasons, including the 

importance of NGS to numerous Indian 

tribes located in Arizona and the federal 

government’s reliance on NGS to meet 

the requirements of water settlements 

with several tribes. The timeframe for 

compliance would not, in itself, avoid 

or mitigate increases in water rates for 

tribes located in Arizona; however, it 

would provide time for the collaborating 

federal agencies to explore options to 

avoid or minimize potential impacts to 

tribes, including seeking funding to 

cover expenses for the federal portion of 

pollution control at NGS. 

In developing this framework, EPA 

proposed to exercise its authority and 

discretion under section 301(d)(4) of the 

CAA, 42 U.S.C. 7601(d)(4), and the 

TAR, 40 CFR 49.11(a) and proposed an 

extended timeframe for an alternative 

measure under the RHR for NGS. EPA 

considered this extension of time to be 

consistent with the general 

programmatic requirements. States and 

regulated sources accordingly had 

almost 20 years under the RHR to design 

and implement alternative measures to 

BART. Because of the myriad 

stakeholder interests and complex 

governmental interests unique to NGS, 

we are only now addressing the BART 

requirements for NGS. For all the 

reasons explained above, we considered 

it appropriate to consider an extended 

compliance period for NGS. 

Our proposal to require emission 

reductions beyond 2018 was supported 

by the Tribal Authority Rule codified at 

40 CFR 49.11(a). The TAR reflects EPA’s 

commitment to promulgate ‘‘such 

Federal implementation plan provisions 

as are necessary or appropriate to 

protect air quality’’ in Indian country 

where a tribe either does not submit a 

Tribal Implementation Plan (TIP) or 

does not receive approval of a submitted 

TIP. (Emphasis added.) 

The use of the term ‘‘provisions as are 

necessary or appropriate’’ indicates 

EPA’s determination that it may only be 

necessary or appropriate to promulgate 

a FIP of limited scope. The United 

States Court of Appeals for the Tenth 

Circuit has previously endorsed the 

application of this approach in a 

challenge to the FIP for the Four Corners 

Power Plant, stating: ‘‘[40 C.F.R. 

49.11(a)] provides the EPA discretion to 

determine what rulemaking is necessary 

or appropriate to protect air quality and 

requires the EPA to promulgate such 

rulemaking.’’ Ariz. Public Serv. Co. v. 

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

The court went on to observe: ‘‘Nothing 

in section 49.11(a) requires EPA . . . to 

submit a plan meeting the completeness 

criteria of [40 CFR part 51] Appendix 

V.’’ Id. While the decision in Arizona 

Public Service Company focused on 40 

CFR Part 51 Appendix V, EPA believes 

the same considerations apply to the 

promulgation of a FIP intended to 

address the objectives set forth in 40 

CFR 51.308(e)(2). In particular, EPA has 

discretion to determine if and when a 

FIP addressing the objectives set forth in 

40 CFR 51.308(e)(2) should be 

promulgated, which necessarily 

includes discretion to determine the 

timing for complying with the 

requirements of any such FIP. 

III. EPA’s Technical Evaluation of 

Greater Reasonable Progress Towards 

the National Visibility Goal 

A. Summary of TWG Alternative to 

BART 

Appendix B of the TWG Agreement 

contains the TWG Alternative that was 

submitted to EPA for consideration as a 

’’better than BART’’ Alternative.20 The 

TWG Alternative was developed by the 

Technical Work Group, which did not 

include EPA, to satisfy the ‘‘better than 

BART’’ requirements of the RHR.21 The 

core element of the TWG Alternative is 

that the TWG Alternative establishes a 

cap in NOX emissions over the period 

2009–2044 (the 2009–2044 NOX Cap). 

The TWG Alternative then outlines the 

operating scenarios that would be 

required depending on the final 

outcome of NGS ownership after the 

expiration of the current lease term at 

the end of 2019. The owners of NGS 

commit to maintaining emissions from 

NGS below the 2009–2044 NOX Cap 

regardless of the post-2019 ownership of 

NGS and the applicable operating 

scenario. In general, the operating 

scenarios include specific actions for 

achieving emission reductions by 2019 

and 2030 to ensure compliance with the 

2009–2044 NOX Cap. The TWG 

Alternative also provides for an 

operating scenario that is less welldefined but establishes a second NOX

emissions cap over the period of 2009– 

2029 (the 2009–2029 NOX Cap) that is 

equivalent to emission reductions that 

would be achieved by the more welldefined operating scenarios. The 2009– 

2029 NOX Cap would apply in addition 

to the 2009–2044 NOX Cap. The TWG 

Alternative also includes annual 

reporting requirements to EPA. 

The 2009–2044 NOX Cap is calculated 

based on expected emissions that would 

result if NGS complied with EPA’s 

proposed BART emission limit of 0.055 

lb/MMBtu on each unit within five 

years of the effective date of a final rule. 

The TWG Alternative also incorporates 

EPA’s proposed credit to NGS for the 

emission reductions achieved from the 

early and voluntary installation of LNB/ 

SOFA beginning in 2009 (the LNB/

SOFA credit). 

The TWG Alternative puts forth two 

main operating scenarios, with 

additional sub-options, for limiting NOX

emissions below the 2009–2044 NOX

Cap. These scenarios are called TWG 


tkelley on DSK3SPTVN1PROD with PROPOSALS
62514 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Proposed Rules 

22See Section XI of the ‘‘Amendment No. 1 to 

Indenture of Lease Navajo Units 1, 2, and 3 Between 

the Navajo Nation and Arizona Public Service 

Company, Department of Water and Power of the 

City of Los Angeles, Nevada Power Company dba 

NV Energy, Salt River Project Agricultural 

Improvement and Power District, and Tucson 

Electric Company’’, within document number 0150 

in the docket for this proposed rulemaking at EPA– 

R09–OAR–2013–0009. 

23See Appendix B.1.A.3 of the Technical Work 

Group Agreement on NGS, document number 0122 

in the docket for this proposed rulemaking. EPA 

does not consider the limit of 0.07 lb/MMBtu to be 

a BART emission limit, rather, a component of the 

TWG Alternative. Under the TWG Alternative, this 

higher emission rate is offset by the closure of one 

unit, or the curtailment of generation. In other 

words, despite the higher emission rate under the 

TWG Alternative compared to EPA’s proposed 

BART emission limit, NGS would comply with the 

2009–2044 NOX Cap because additional emission 

reductions are achieved from closure or 

curtailment. 

24LADWP owns approximately 477 MW of NGS, 

while NV Energy owns approximately 254 MW. The 

sum of their shares is 731 MW, which is 19 MW 

short of one 750 MW unit at NGS. The Navajo 

Nation has the option to purchase up to a 170 MW 

interest in NGS. A 189 MW limit in the capacity 

increase is based on making up the 19 MW shortfall 

and the maximum amount the Navajo Nation can 

purchase (i.e., the sum of 19 MW and 170 MW). 

25The Prevention of Significant Deterioration 

(PSD) Program generally requires pre-construction 

permitting for major sources if the intended 

modification increases emissions of certain air 

pollutants above the PSD significance thresholds. 

The TWG Alternative also cites the Nonattainment 

New Source Review Program, a pre-construction 

permitting program for areas that are not in 

attainment with the National Ambient Air Quality 

Standards (NAAQS). Currently, this program does 

not apply to NGS as it is not located in an area that 

is out of attainment with any of the NAAQS. 

26 In our proposed action on February 5, 2013, 

EPA proposed a BART determination for NGS and 

Alternative 1 as a ‘‘better than BART’’ Alternative. 

In today’s action, we are proposing that the TWG 

Alternative also meets our ‘‘better than BART’’ 

framework. Taken together, EPA has proposed a 

BART determination for NGS, Alternative 1, and 

the TWG Alternative. 

27See also Spreadsheet titled ‘‘Supplemental 

Better than BART Alternatives.xlsx’’ in the docket 

for this proposed rulemaking. 

28See Table 12 at 78 FR at 8290 and document 

titled ‘‘BART Alternatives.xlsx’’ in document 

number 0005 in the docket for this proposed 

rulemaking at EPA–R09–OAR–2013–0009. In our 

BART proposal, and in calculating the 2009–2044 

NOX Cap in this Supplemental Proposal, EPA used 

the average annual NOX emissions from NGS over 

2001–2008 (34,152 tons) to estimate future annual 

emissions before compliance with the 0.055 lb/

MMBtu NOX limit. The TWG Alternative also used 

this value in estimating its cap. Estimates for annual 

emissions in 2020 and thereafter were based on the 

0.055 lb/MMBtu NOX limit for BART and the 

average heat input over 2001–2008. This method 

was similarly used by EPA in our BART proposal 

and this Supplemental Proposal, as well as the 

TWG Alternative. 

Alternatives A and B. The TWG 

Alternative provides different operating 

scenarios because of current uncertainty 

over the ownership interests in NGS 

following the expiration of the initial 

NGS lease term at the end of 2019. 

Specifically, two owners, LADWP and 

NV Energy, have announced plans to 

divest from any continuing ownership 

interest in NGS after 2019. These 

owners may retire or sell their interest 

in NGS. In addition, the recent Lease 

Amendment with the Navajo Nation 

that extends the NGS lease to 2044 

includes an option for the Navajo 

Nation to purchase up to a 170 MW 

ownership share in NGS.22

Each of the three scenarios under 

TWG Alternative A (i.e., A1, A2, or A3) 

requires two significant emission 

reductions, one to occur by December 

31, 2019 and the other by December 31, 

2030. The emission reductions in the 

first step, by December 31, 2019, under 

TWG Alternative A1 would be achieved 

through closure of one unit. Alternative 

A2 would entail closure of one unit 

with an increase in capacity, not to 

exceed 189 MW, at the remaining two 

units; Alternative A3 would entail the 

curtailment of energy production across 

all three units such that the emission 

reductions are equivalent to the closure 

of approximately one unit. The emission 

reductions to occur in the second step, 

under Alternatives A1–3, would occur 

by December 31, 2030, and would be 

achieved by compliance of two units at 

NGS with an emission limit of 0.07 lb/ 

MMBtu, achievable with the installation 

of SCR. Under the TWG Alternative, 

although the 2009–2044 NOX Cap is 

calculated based on EPA’s proposed 

BART emission limit of 0.055 lb/

MMBtu, the owners of NGS commit to 

meeting a limit of 0.07 lb/MMBtu from 

the installation of SCR. The operator 

states that a limit of 0.055 lb/MMBtu is 

not achievable for a retrofit application 

when startup, shutdown, and load 

following emissions are included.23

Alternative A1 would be triggered if 

LADWP and NV Energy retire their 

ownership shares of NGS without 

selling, or if LADWP and NV Energy sell 

their ownership shares to an existing 

NGS participant and the Navajo Nation 

does not elect to purchase an interest in 

NGS. Alternative A2 is triggered if 

LADWP or NV Energy sell their 

ownership shares to an existing NGS 

participant, the Navajo Nation elects to 

purchase an interest in NGS, and the 

NGS participants can increase the 

capacity of NGS by no more than 189 

MW24 without triggering major source 

pre-construction permitting 

requirements.25 Alternative A3 is 

triggered if LADWP or NV Energy sell 

their ownership shares to an existing 

NGS Participant, the Navajo Nation 

elects to purchase an interest in NGS, 

and the NGS Participants cannot 

increase the capacity of NGS without 

triggering major source pre-construction 

permitting requirements. 

TWG Alternative B would be triggered 

if LADWP and/or NV Energy sell their 

ownership interest to a third party (i.e., 

a party that is not an existing NGS 

participant). TWG Alternative B 

establishes similar emission reductions 

to Alternative A by setting a second 

NOX emission cap over the 2009–2029 

period, i.e., the 2009–2029 NOX Cap 

(calculated to be equivalent to the 

closure of one unit in 2020), in addition 

to the 2009–2044 NOX Cap. Alternative 

B specifies that NOX emissions must be 

maintained below the cap during each 

applicable period (2009–2029 and 

2009–2044), but does not specify how 

the NGS owners must operate NGS to 

meet each cap. The TWG Alternative 

outlines annual emissions reporting and 

planning requirements both to the 

public and to EPA to ensure progress 

towards emissions goals and 

maintenance of emissions below the 

2009–2044 NOX Cap. 

B. EPA’s Technical Evaluation of TWG 

Alternative to BART 

EPA is proposing to include the TWG 

Alternative as a second ‘‘better than 

BART’’ Alternative to achieve 

compliance with the RHR.26 We are 

proposing to determine that the TWG 

Alternative satisfies the requirements of 

the RHR as discussed below. 

As stated previously, the TWG 

Alternative establishes a 2009–2044 

NOX Cap based on expected emissions 

that would result if NGS complied with 

EPA’s proposed BART determination. 

The TWG Alternative also incorporates 

EPA’s proposed LNB/SOFA credit into 

the 2009–2044 NOX Cap. In our 

February 5, 2013 proposed rule, EPA 

established our proposed BART 

determination as a BART Benchmark 

based on actual emissions and applied 

the LNB/SOFA credit to each 

Alternative to BART (to calculate 

‘‘adjusted’’ emissions). Adjusted 

emissions, from each Alternative, were 

then compared against the BART 

Benchmark. As discussed in the 

following paragraphs, these two 

methods of applying credit for the early 

and voluntary installation of LNB/SOFA 

beginning in 2009 are equivalent.27

As shown in our proposed 

rulemaking, EPA’s proposed BART 

Benchmark was 358,974 tons of NOX

over 2009–2044.28 This value was 

calculated assuming compliance with 

EPA’s proposed BART emission limit of 

0.055 lb/MMBtu on January 1, 2018, 

based on a final rule effective date of 

January 1, 2013. A final rule effective 

date of January 1, 2013 is no longer 

appropriate for NGS because EPA will 


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29Regarding the final rule effective date, see Infra. 

at footnote 33. 30EPA erroneously used the value 5,343 tons per 

year to represent NOX emissions from NGS after 

installation of SCR. The correct value was 5,345 

tons per year. See, for example, comparison of cells 

B23 and C23 in ‘‘emissions’’ tab of the spreadsheet 

entitled ‘‘BART Alternatives.xlsx’’ in document 

number 0005 in the docket for this proposed 

rulemaking at EPA–R09–OAR–2013–0009. 

31 Id. 

32See also Spreadsheet titled ‘‘Supplemental 

Better than BART Alternatives.xlsx’’ in the docket 

for this proposed rulemaking. 

not issue a final BART rule by that date. 

The TWG Alternative provided an 

example calculation for the 2009–2044 

NOX Cap assuming a final rule effective 

date of December 31, 2013, an emission 

limit of 0.055 lb/MMBtu, and the 

application of the LNB/SOFA credit to 

the cap.29 The LNB/SOFA credit, as 

applied to the cap, assumes that LNB/ 

SOFA are installed at NGS concurrently 

with SCR, rather than using the actual 

early installation dates on one unit per 

year over 2009–2011. The example in 

the TWG Alternative calculates a 2009– 

2044 NOX Cap of 480,490 tons and 

acknowledges that the cap would 

change depending on the actual 

effective date of the final rule. The 

difference between the BART 

Benchmark from EPA’s proposed 

rulemaking (of 358,974 tons) and the 

example calculated in the TWG 

Alternative (of 480,490 tons) is based on 

the application of the LNB/SOFA credit 

to the 2009–2044 NOX Cap and the use 

of a different final rule effective date, 

i.e., 2014 instead of 2013. Additionally, 

in our proposed rulemaking, EPA 

included a transcription error in our 

calculation of the BART Benchmark, 

which contributes nominally to the 

difference.30

TABLE 1—DIFFERENCES BETWEEN BART BENCHMARK AND EXAMPLE CALCULATION OF NOX CAP FROM TWG 

ALTERNATIVE

BART Benchmark 

for NOX Assumptions 

As reported in 2/5/13 Proposed Rulemaking ....... 358,974 BART compliance by January 1, 2018 (final rule effective January 1, 

2013). 

Step 1: Correction for Transcription Error ............ 359,028 Transcription Error of 2 tpy for 27 years = addition of 54 tons. 

Step 2: Plus Correction for Revised BART Compliance Date.377,015 Change BART Compliance date from January 1, 2018 to January 1, 

2019 = Difference between LNB/SOFA and SCR+LNB/SOFA for one 

year = 23,325 tons minus 5,345 tons = 17,980 tons. 

Step 3: Plus Application of LNB/SOFA Credit ..... 480,489 Early emission reductions over 2009–2018 achieved from LNB/SOFA installation = (34,152 tpy * 10 years)—(30,500 + 24,427 + 19,837 + 

(23,325 * 7 years) = 103,481 tons. 

Table 1 shows that the correction for 

EPA’s transcription error, a revised 

BART compliance date, and the 

application of the LNB/SOFA credit to 

the BART Benchmark instead of 

alternatives, account for the full 

difference between EPA’s BART 

Benchmark, as reported in our proposed 

rulemaking, and the example 

calculation from the TWG Alternative.31

Using the value from Table 1 of 

480,489 tons, representing total NOX

emissions over 2009–2044 if LNB/SOFA 

were installed concurrently with SCR by 

2019, and the value of 377,015 tons, 

representing total NOX emissions over 

2009–2044 with actual installation years 

for LNB/SOFA, the LNB/SOFA credit is 

103,481 tons. As discussed previously, 

in our proposed rulemaking, EPA set, as 

the BART Benchmark, the value of total 

NOX emissions over 2009–2044 based 

on the actual early installation years for 

LNB/SOFA (i.e., 377,015 tons), and 

applied the LNB/SOFA credit to BART 

Alternatives to calculated a value for 

‘‘adjusted emissions’’. If the ‘‘adjusted 

emissions’’ were lower than the BART 

Benchmark, the BART Alternative was 

determined to be ‘‘better than BART’’. 

The TWG Alternative, instead, applied 

the LNB/SOFA credit to the 2009–2044 

NOX Cap (i.e., resulting in 480,489 tons, 

very close to the value reported by TWG 

of 480,490 tons), and calculated total 

emissions from Alternatives based on 

the actual early installation years for 

LNB/SOFA. If emissions from the BART 

Alternative are lower than the 2009– 

2044 NOX Cap, the Alternative is ‘‘better 

than BART’’. Using Alternative 1 from 

our February 5, 2013 proposed 

rulemaking, i.e., compliance with the 

proposed BART emission limit in 2021, 

2022, and 2023, as an example, Table 2 

shows that these two methods of 

comparing Alternatives against BART 

are equivalent.32

TABLE 2—EPA AND TWG METHODS OF COMPARING ALTERNATIVES AGAINST BART 

BART Alternative 1 

EPA Method 

Compliance Years ............................................................ By 2019 .............................. 2021, 2022, 2023. 

Total Emissions (tons) ...................................................... 377,008 tons ...................... 430,948 tons. 

LNB/SOFA Credit ............................................................. n/a ...................................... 103,481 tons. 

Adjusted Emissions .......................................................... n/a ...................................... 327,467 tons. 

Better than BART? ........................................................... n/a ...................................... Yes, by 49,541 tons (377,008–327,467 tons). 

TWG Method 

Compliance Years ............................................................ By 2019 .............................. 2021, 2022, 2023. 

Total Emissions (tons) ...................................................... 377,008 tons ...................... 430,948 tons. 

LNB/SOFA Credit ............................................................. 103,481 tons ...................... n/a. 

Adjusted Emissions .......................................................... 480,489 tons ...................... n/a. 

Better than BART? ........................................................... n/a ...................................... Yes, by 49,541 tons (480,489–430,948 tons). 


tkelley on DSK3SPTVN1PROD with PROPOSALS
62516 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Proposed Rules 

33The comment period for EPA’s proposed BART 

determination and Supplemental Proposal will 

close in January 2013. EPA anticipates that a final 

rule that considers and responds to all comments 

cannot be completed until Spring 2014. Because a 

final rule is typically effective 60 days following 

publication in the Federal Register, EPA anticipates 

the effective date of the final rule will occur no 

earlier than mid-summer 2014. 

34See also Spreadsheet titled ‘‘Supplemental 

Better than BART Alternatives.xlsx’’ in the docket 

for this proposed rulemaking. 

35 Graphical representation of these Alternatives 

against the 2009–2044 NOX Cap are shown in 

Spreadsheet titled ‘‘Supplemental Better than BART 

Alternatives.xlsx’’ in the docket for this proposed 

rulemaking. 

As discussed previously, EPA 

anticipates that the compliance date for 

BART would be based on the effective 

date of the final rule, which is typically 

60 days following publication of the 

final rule in the Federal Register. 

Therefore, in calculating the 2009–2044 

NOX Cap, EPA assumes that an effective 

date of July 1, 2014 is reasonable and 

justified.33 Based on a July 1, 2014 

effective date, compliance with the 

BART emission limit must occur by July 

1, 2019. Using this compliance date, as 

well as correcting for the transcription 

error in our proposed rulemaking and 

applying the LNB/SOFA credit to the 

BART Benchmark instead of BART 

Alternatives, EPA calculates the 2009– 

2044 NOX Cap to be 494,899 tons.34

In our proposed BART determination 

on February 5, 2013, we established a 

framework for evaluating other 

Alternatives to BART, centered on our 

proposed BART determination that 

calculated a BART benchmark for total 

NOX emissions over 2009–2044. We 

compared total emissions from our 

proposed alternative, Alternative 1 

(adjusted for the emission reductions 

associated with the early installation of 

LNB/SOFA) against the BART 

benchmark to determine that 

Alternative 1 was ‘‘better than BART’’. 

The TWG Alternative to BART uses 

EPA’s BART benchmark to establish an 

emission cap and commits to operate 

NGS in a manner such that total NOX

emissions over 2009–2044 remain below 

the 2009–2044 NOX Cap, which we 

calculate to be 494,899 tons. In ensuring 

that total NOX emissions over 2009– 

2044 from NGS remain below the 2009– 

2044 NOX Cap, the TWG Alternative 

meets the criteria of our proposed 

‘‘better than BART’’ framework. 

EPA’s technical evaluation has also 

focused on whether the four potential 

operating scenarios in the TWG 

Alternative (Alternatives A1–A3 and B) 

provide a reasonable basis to ensure the 

NOX emissions will remain below the 

2009–2044 NOX Cap of 494,899 tons. 

The four possible operating scenarios 

under the TWG Alternative 

(Alternatives A1, A2, A3, and B) are 

summarized in section III.A of this 

Supplemental Proposal. These four 

scenarios are also shown in Table 3 and 

compared against the 2009–2044 NOX

Cap. The 2009–2044 NOX Cap reflects 

the final rule effective date that EPA 

estimates is reasonable and justified for 

this rulemaking (July 1, 2014), resulting 

in a BART compliance date of July 1, 

2019. As discussed above, the 2009– 

2044 NOX Cap incorporates the LNB/

SOFA early installation credit. EPA 

calculates the 2009–2044 NOX Cap to be 

494,899 tons. 

The three operating scenarios under 

Alternative A represent emission 

reductions that occur during three 

distinct periods of time: over 2009–2011 

(through the early installation of LNB/ 

SOFA), by 2020 (from closure or 

curtailment of one unit, and by 2031 

(through compliance with a NOX limit 

of 0.07 lb/MMBtu on two units). 

Similarly, Alternative B represents 

emission reduction that would occur 

during three distinct periods of time: 

over 2009–2011 (through the early 

installation of LNB/SOFA), any time 

prior to 2029 (to maintain compliance 

with the 2009–2029 NOX Cap), and any 

time between 2029 and 2044 (to 

maintain compliance with the 2009– 

2044 NOX Cap). 

EPA notes that the closure or 

curtailment of one unit at NGS in 2020 

would result not only in NOX

reductions, but also in reductions of 

other criteria and hazardous air 

pollutants, such as sulfur dioxide (SO2), 

particulate matter, and mercury. 

TABLE 3—SUMMARY OF EPA ANALYSIS OF TWG ALTERNATIVE 35

TWG Alternative: Maintain Emissions below 2009–2044 NOX Cap using one of the following 

operating scenarios: 

A1 A2 A3 B 

Ownership Possibilities If: LADWP and NV Energy exit without selling ownership interest or by 

selling to an existing NGS Participant. 

LADWP or NV Energy exits by selling 

to a 3rd party, or 

LADWP or NV Energy do not exit 

NGS. 

And: Navajo Nation does 

not purchase ownership interest. 

Navajo Nation purchases interest (up 

to 170 MW). 

Navajo Nation purchases interest (up 

to 170 MW). 

And: Owners increase capacity (does not 

trigger permit).

Owners do not increase capacity 

(triggers permit).

Summary of Cap or 

Operating Scenarios.

2009–2044 NOX Cap 

= 494,899 tons: By 

7/1/2019, meet limit 

of 0.055 lb/MMBtu 

through installation 

of LNB/SOFA concurrently with SCR. 

By 12/31/2019, close 

one unit. 

By 12/31/2030, meet 

NOX limit of 0.07 

lb/MMBtu on two 

units. 

By 12/31/2019, close 

one unit. 

By 12/31/2019, increase net capacity 

by no more than 

189 MW. 

By 12/31/2030, meet 

NOX limit of 0.07 

lb/MMBtu on two 

units. 

Three units could remain open..

By 12/31/2019, curtail 

generation by at 

least 561 MW. 

By 12/31/2030, meet 

NOX limit of 0.07 

lb/MMBtu on two 

units. 

Maintain total NOX

emissions below a 

2009–2029 NOX

Cap (416,865 

tons). Cap is equivalent to closure of 

one unit by 12/31/

2019. 


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36 Id. 

37Under EPA PSD permit AZ 08–01, November 

20, 2008, Units 1–3 at NGS operate with modern 

LNB/SOFA with an emission limit of 0.24 lb/ 

MMBtu. See documents within EPA–R09–OAR– 

2013–0009–0005. 

38 Id. See also http://ampd.epa.gov/ampd/. 

39Although Alternative B does not specify how 

the caps will be maintained, installation of SCR on 

all units at NGS is a reasonable compliance option, 

and therefore, EPA is using this as an example for 

further examination of Alternative B. See 

spreadsheet, titled ‘‘Supplemental Better than 

BART Alternatives.xlsx’’. 

TABLE 3—SUMMARY OF EPA ANALYSIS OF TWG ALTERNATIVE 35—Continued 

Estimate of Total NOX over 2009–2044 ............ 435,819 tons ............. 461,816 tons NGS must ensure 

total emissions remain below both 

Caps. 

In order to better understand whether 

the three potential operating scenarios 

under Alternative A provide reasonable 

assurance that emissions from NGS will 

remain below the 2009–2044 NOX Cap, 

EPA estimated annual NOX emissions 

for each potential operating scenario.36

These estimates were based on the 

specific requirements for each scenario 

and the average heat input and average 

emission rates for each unit operating 

with LNB/SOFA.37 EPA used actual 

emission data, as reported to the EPA 

Clean Air Markets Program, for 2001– 

2012.38 To estimate tons of NOX emitted 

in the future, EPA calculated the 

product of annual heat input (in 

MMBtu/year) and the annual average 

NOX emission rate (in lb/MMBtu). In 

Table 3, estimates for total NOX

emissions over 2009–2044 were 

calculated based on the average annual 

heat input over 2001–2012, and the 

average annual NOX emission rate 

achieved over 2011–2012 (when all 

three units were operating with LNB/ 

SOFA) for the 2013–2018 period, and 

0.07 lb/MMBtu for the 2020–2044 

period. 

As shown in Table 3, estimates for 

total NOX emissions over 2009–2044 for 

Alternatives A1, A2, and A3 are all 

below the 2009–2044 NOX Cap. This 

indicates that under TWG Alternative A, 

NGS can be reasonably expected to 

remain below the 2009–2044 NOX Cap. 

The TWG Alternative requires the 

operator of NGS to submit an annual 

report to EPA, which it must also make 

publicly available, that includes annual 

emissions of SO2 and CO2, and annual 

and cumulative emissions of NOX. In 

addition, EPA is including a provision 

to require reporting of annual heat input 

at NGS to assess operation and 

utilization of capacity at NGS. 

Consistent with 40 CFR 51.308(e), the 

enforceable 2009–2044 NOX Cap will 

ensure that total emissions of NOX are 

less than those that would be emitted 

under our proposed BART 

determination. The weight of evidence, 

including the operating scenarios and 

annual reporting requirements as 

discussed above, suggest that NGS can 

be reasonably expected to remain below 

the 2009–2044 NOX Cap. 

As indicated in Table 3, and as 

discussed previously, the operating 

scenario under TWG Alternative B does 

not specify the exact process that would 

be used to comply with the 2009–2044 

NOX Cap. To ensure that NOX emission 

reductions are achieved under TWG 

Alternative B in a manner similar to 

TWG Alternative A1–A3, the TWG 

Alternative imposes a nested NOX

emission cap for the 2009–2029 period 

(the 2009–2029 NOX Cap) that would 

apply in addition to the 2009–2044 NOX

Cap. Under TWG Alternative B, the 

2009–2029 NOX Cap would be 

equivalent to total NOX emissions over 

2009–2029 that would be achieved 

under TWG Alternative A1, i.e., closure 

of one unit by December 31, 2019. Thus, 

under TWG Alternative B, NGS must 

still reduce NOX emissions over 2009– 

2029 and 2030–2044 in order to comply 

with the 2009–2029 and 2009–2044 

NOX Caps, but the operator would have 

flexibility to determine the timing and 

method of reducing emissions. 

To evaluate TWG Alternative B, EPA 

estimated potential emission reduction 

timeframes that would be needed to 

comply with the 2009–2029 and 2009– 

2044 NOX Caps assuming the owners of 

NGS elect to install SCR on all three 

units at NGS.39 Using the average 

annual heat input over 2001–2012, and 

the average annual NOX emission rate 

achieved over 2011–2012 (when all 

three units were operating with LNB/ 

SOFA), if NGS achieves emission rates 

of 0.07 lb/MMBtu or below after 

installation of SCR, the owners of NGS 

would need to install SCR on one unit 

each in 2026, 2027, and 2028 in order 

to comply with the 2009–2029 and 

2009–2044 NOX Caps. If NGS achieves 

emission rates of 0.055 lb/MMBtu or 

below, the owners of NGS would need 

to install SCR on one unit each in 2028, 

2029, and 2030 in order to comply with 

the 2009–2029 and 2009–2044 NOX

Caps. In addition to the option of 

installing SCR on each unit, under TWG 

Alternative B, the owners of NGS could 

elect to implement any operating 

scenario (including curtailment, 

installation of other technologies to 

reduce emissions of NOX, or a 

combination of options or technologies) 

as long as the operational changes result 

in reduced emissions of NOX sufficient 

to maintain emissions below the 

applicable NOX Cap. 

To ensure compliance, the annual 

reporting requirements that apply to 

TWG Alternative A would also apply 

under TWG Alternative B. In addition, 

if TWG Alternative B is triggered, the 

operator of NGS would be required to 

submit annual Emission Reduction 

Plans to EPA that would identify the 

potential emission reductions measures 

and operating scenarios to comply with 

the 2009–2029 or 2009–2044 NOX Caps. 

Each potential operating scenario in 

each annual Emission Reduction Plan 

must show compliance with the 

applicable NOX Cap. 

Consistent with 40 CFR 51.308(e), the 

enforceable 2009–2029 and 2009–2044 

NOX Caps will ensure that total 

emission reductions of NOX are greater 

than those that would be achieved 

under our proposed BART 

determination. The weight of evidence, 

including possible operating scenarios 

and the reporting requirements as 

discussed above, indicate that NGS can 

be reasonably expected to remain below 

the 2009–2029 and 2009–2044 NOX

Caps. 

Based on our analysis of the operating 

scenarios under TWG Alternatives A1– 

A3 and B, EPA is proposing to 

determine that the TWG Alternative 

meets EPA’s ‘‘better than BART’’ 

framework outlined in our February 5, 

2013 proposed BART determination for 

NGS. 

IV. EPA’s Supplemental Proposal 

In addition to our proposed BART 

determination and Alternative 1 for 

NGS dated February 5, 2013, in today’s 

action, EPA is supplementing our 

proposal with the TWG Alternative 

submitted to EPA on July 26, 2013 as an 

additional ‘‘better than BART’’ 

Alternative. Because we are 

supplementing our February 5, 2013 

proposed rulemaking with today’s 


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proposal, after considering public 

comments, EPA may finalize provisions 

from either or both proposals, i.e., our 

proposed BART determination, 

proposed Alternative 1, or the TWG 

Alternative. 

EPA is proposing to determine that 

the TWG Alternative ensures that total 

emissions of NOX from NGS over 2009– 

2044 will remain below the total 

emissions from NGS over 2009–2044 

that would have occurred under BART. 

In today’s action, EPA is proposing to 

establish enforceable requirements to 

comply with the proposed 2009–2044 

NOX Cap, and if applicable, a 2009– 

2029 NOX Cap, including annual 

reporting requirements related to heat 

input, emissions of SO2 and CO2, and 

annual and cumulative emissions of 

NOX. In addition, if the final ownership 

outcome triggers the operating scenarios 

under Alternatives A1–A3, EPA is 

proposing to establish the emission 

reduction milestones under A1–A3 

(closure of one unit or curtailment of 

electricity generation by December 31, 

2019, and installation of SCR on two 

units by December 31, 2030) as 

enforceable requirements. If the final 

ownership outcome triggers Alternative 

B, EPA is proposing to require the 

owners of NGS to submit annual 

Emission Reduction Plans to EPA to 

achieve the NOX emission reductions 

necessary to assure compliance with the 

2009–2029 and 2009–2044 NOX Caps. 

EPA is also proposing to require the 

owners of NGS to notify EPA no later 

than December 1, 2019, of the final 

ownership outcome and the resulting 

applicable operating scenario that it will 

implement. For the reasons outlined 

above, EPA is supplementing our 

February 5, 2013 proposed rulemaking 

to also propose the TWG Alternative as 

a ‘‘better than BART’’ Alternative that 

ensures greater reasonable progress 

towards the national visibility goal than 

BART. 

EPA is accepting public comment 

concurrently on our February 5, 2013 

proposed BART determination and 

proposed Alterative 1 and the TWG 

Alternative put forth in today’s 

Supplemental Proposal. From 

November 12–15, 2013, EPA will be 

holding five open house and public 

hearing events throughout Arizona to 

accept written and oral comment on our 

proposed rulemaking and Supplemental 

Proposal. The comment period for our 

February 5, 2013 proposed rulemaking 

and today’s Supplemental Proposal 

closes on January 6, 2014. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 13563 

This action supplements our 

proposed source-specific Federal 

Implementation Plan for the Navajo 

Generating Station to propose and take 

comment on an additional Alternative 

to BART that was developed by and 

agreed upon by a group of seven 

stakeholders. Under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and EO 13563 

(76 FR 3821, January 21, 2011), because 

this proposed rule applies to only one 

facility, it is not a rule of general 

applicability. This proposed rule, 

therefore, is exempt from review under 

EO 12866 and EO 13563. 

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. Burden is 

defined at 5 CFR 1320.3(b). 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 Supplemental Proposal 

applies to a single facility, Navajo 

Generating Station, the Paperwork 

Reduction Act does not apply. 

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 proposed 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed action on small 

entities, I certify that this proposed 

action will not have a significant 

economic impact on a substantial 

number of small entities. The Navajo 

Generating Station is not a small entity 

and the FIP for Navajo Generating 

Station being proposed today does not 

impose any compliance requirements on 

small entities. See Mid-Tex Electric 

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

(D.C. Cir. 1985). We continue to be 

interested in the potential impacts of the 

proposed rule and this Supplemental 

Proposal on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires Federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on State, local, and tribal 

governments and the private sector. 

Federal agencies must also develop a 

plan to provide notice to small 

governments that might be significantly 

or uniquely affected by any regulatory 

requirements. The plan must enable 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates and must 

inform, educate, and advise small 

governments on compliance with the 

regulatory requirements. 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

EPA anticipates the annual cost to the 

private sector of this Supplemental 

Proposal, which involves compliance 

with BART emission limits by two 

units, rather than three units, to be 

lower than the anticipated cost of EPA’s 

proposed BART determination of $64 

million per year (see Table 2 of EPA’s 

proposed BART determination at 78 FR 

8274, February 5, 2013). Thus, this 

Supplemental Proposal is not subject to 

the requirements of sections 202 or 205 

of UMRA. This proposed rule will not 

impose direct compliance costs on state, 

local or tribal governments. This 

proposed action will, if finalized, 

reduce the emissions of NOX from a 

single source, the Navajo Generating 

Station. 

In developing this rule, EPA 

consulted with small governments 

pursuant to a plan established under 

section 203 of UMRA to address impacts 


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40See document number 0152 in the docket for 

the proposed rulemaking at EPA–R09–OAR–2013– 

0009. 

41See document number 0150 in the docket for 

the proposed rulemaking at EPA–R09–OAR–2013– 

0009. 

42See document number 0166 in the docket for 

the proposed rulemaking at EPA–R09–OAR–2013– 

0009. 

43See document number 0134 in the docket for 

the proposed rulemaking at EPA–R09–OAR–2013– 

0009. 

44See document titled ‘‘Timeline of All Tribal 

Consultations on Navajo BART FIPs as of 

September 17 2013’’ in the docket for this proposed 

rulemaking. 

of regulatory requirements in the rule 

that might significantly or uniquely 

affect small governments. EPA put forth 

an Advanced Notice of Proposed 

Rulemaking on August 28, 2009 

regarding our intention to propose a 

BART determination for NGS and the 

Four Corners Power Plant. We received 

comments from numerous small 

governments, including tribal 

governments, and governments of 

several towns in Arizona. This proposed 

rule will not impose direct compliance 

costs on any small governments. 

However, increased electricity and 

water costs associated with this 

proposed rule may indirectly affect 

small governments. 

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 action 

proposes 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 

Under 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 proposed 

action will have tribal implications, and 

consequently EPA has consulted with 

tribal officials during the process of 

developing the proposed regulation and 

will continue to consult with tribal 

officials during the process to take final 

action. EPA notes that the TWG 

Alternative, on which this 

Supplemental Proposal is based, was 

developed by a group of seven 

stakeholders that included the Navajo 

Nation and the Gila River Indian 

Community. However, we also note that 

not all tribes that may be affected by this 

proposed alternative were among the 

stakeholders. Other tribes may have 

views on this alternative and EPA 

welcomes their comments. The 

proposed regulation will not pre-empt 

tribal law. The proposed regulation will 

also not impose direct compliance costs 

on a tribal government, because the 

direct compliance costs of this proposed 

rule, if finalized, will be borne by the 

owners of NGS. However, because 

several tribes located in Arizona rely 

directly or indirectly on NGS, there may 

be indirect impacts of this proposed rule 

on these tribes. The Navajo Nation and 

Hopi Tribe receive coal-related 

royalties, taxes and employment at NGS 

and the Kayenta Mine that contribute to 

their economies. Several tribes in 

Arizona have allocations of CAP water 

under existing water settlement 

agreements. Because of the interrelationship of CAP and NGS, impacts 

to NGS may also impact CAP and the 

tribes that use CAP water or otherwise 

benefit from CAP according to 

Congressionally-approved water 

settlement agreements. The importance 

to tribes of continued operation of NGS 

and affordable water costs cannot be 

overemphasized. In Section II.B.ii of 

EPA’s proposed BART determination 

dated February 5, 2013 (78 FR8274), 

EPA explains in detail the tribal 

information that we received and 

considered in this proposed rulemaking. 

In addition to our consultation with 

tribes discussed in our February 5, 2013 

proposed rulemaking, EPA has had 

additional meetings and conference 

calls with tribes at their request since 

the time we received the TWG 

Alternative, and during our process of 

evaluating the TWG Alternative. On 

August 22, 2013, we met with Governor 

Gregory Mendoza and other 

representatives from the Gila River 

Indian Community.40 On August 28, 

2013, EPA met with President Ben 

Shelly and other representatives from 

the Navajo Nation.41 We held a 

conference call on September 13, 2013 

with Chairman LeRoy Shingoitewa and 

another representative from the Hopi 

Tribe.42 Chairman Shingoitewa also 

submitted a letter to EPA, dated August 

19, 2013, expressing several concerns 

related to the TWG Alternative.43 An 

updated timeline of all correspondence 

and consultation with tribes on NGS is 

included in the docket for this proposed 

rulemaking.44

EPA recognizes that the Navajo 

Nation and the Gila River Indian 

Community participated in the 

development of the TWG Agreement on 

NGS and were signatories on the 

Agreement. However, EPA also 

understands from discussions with 

President Shelly and Governor Mendoza 

that concerns, related to potential 

impacts to their respective tribes from 

BART and the TWG Alternative, still 

exist. EPA understands that Chairman 

Shingoitewa has numerous concerns 

related to the TWG Agreement and 

Alternative, including the exclusion of 

the Hopi Tribe from the TWG and the 

development of the TWG Agreement, 

and the extended timeframe for the 

installation of new air pollution controls 

at NGS under the TWG Alternative. EPA 

will continue to consult with Tribal 

officials during and following the public 

comment period on the proposed FIP. 

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 

proposed rule is not subject to Executive 

Order 13045 because it requires 

emissions reductions of NOX from a 

single stationary source. Because this 

proposed action only applies to a single 

source and is not a proposed 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 contribute to ozone and fine 

particulate matter formation as well as 

visibility impairment, the rule will have 

a beneficial effect on children’s health 

by reducing air pollution that causes or 


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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 exempt 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 

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 

proposed 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. 

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 

proposed rule, if finalized, 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 proposed rule requires emissions 

reductions of NOX from a single 

stationary source, Navajo Generating 

Station. 

List of Subjects in 40 CFR Part 49 

Environmental protection, Air 

pollution control, Indians, 

Intergovernmental relations, Nitrogen 

Dioxide. 

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

Dated: September 25, 2013. 

Jared Blumenfeld, 

Regional Administrator, Region 9. 

Title 40, chapter I of the Code of 

Federal Regulations is proposed to be 

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 49.5513 is amended by 

adding paragraph (j) to read as follows: 

§ 49.5513 Federal Implementation Plan 

Provisions for Navajo Generating Station, 

Navajo Nation. 

* * * * * 

(j) (1) Applicability. Regional Haze 

Best Available Retrofit Technology 

limits for this plant are in addition to 

the requirements of paragraphs (a) 

through (i) of this section. The 

provisions of this paragraph (j) are 

severable, and if any provision of this 

paragraph (j), or the application of any 

provision of this paragraph (j) to any 

owner/operator or circumstance, is held 

invalid, the application of such 

provision to other owner/operators and 

other circumstances, and the remainder 

of this paragraph (j), shall not be 

affected thereby. Nothing in this 

paragraph (j) allows or authorizes any 

Unit to emit NOX at a rate that exceeds 

its existing emission limit of 0.24 lb/

MMBtu as established by EPA permit 

AZ 08–01 issued on November 20, 2008. 

(2) Definitions. Terms not defined 

below shall have the meaning given to 

them in the Clean Air Act or EPA’s 

regulations implementing the Clean Air 

Act and in paragraph (c) of this section. 

For purposes of this paragraph (j): 

(i) 2009–2029 NOX Cap is no more 

than 416,865 tons of NOX. This value is 

calculated based on the sum of annual 

emissions over January 1, 2009 to 

December 31, 2029, and closure of one 

unit by December 31, 2019. 

(ii) 2009–2044 NOX Cap is no more 

than 494,899 tons of NOX. This value is 

calculated based on the sum of annual 

emissions over January 1, 2009 to 

December 31, 2044, and compliance 

with a BART emission limit of 0.055 lb/ 

MMBtu on each Unit by July 1, 2019. 

(iii) Boiler Operating Day means a 24- 

hour period between 12 midnight and 

the following midnight during which 

any fuel is combusted at any time in the 

steam-generating unit. It is not 

necessary for fuel to be combusted the 

entire 24-hour period. 

(iv) Coal-Fired Unit means any of 

Units 1, 2, or 3 at Navajo Generating 

Station. 

(v) Continuous Emission Monitoring 

System or CEMS means the equipment 

required by 40 CFR Part 75 and this 

paragraph (j). 

(vi) Departing Participant means 

either Los Angeles Department of Water 

and Power or Nevada Energy, also 

known as NV Energy or Nevada Power 

Company. 

(vi) Emission limitation or emission 

limit means the federal emissions 

limitation required by this paragraph. 

(vii) Existing Participant means the 

existing owners of NGS: Los Angeles 

Department of Water and Power; 

Nevada Energy, also known as NV 

Energy or Nevada Power Company; Salt 

River Project Agricultural Improvement 

and Power District; Arizona Public 

Service Company; and Tucson Electric 

Company, together with the United 

States, acting through the Bureau of 

Reclamation. 

(ix) lb means pound(s). 

(x) Low-NOX Burners and Separated 

Over-Fire Air or LNB/SOFA means 

combustion controls installed on one 

Unit each over 2009–2011. 

(xi) Navajo Nation means the Navajo 

Nation, a federally recognized Indian 

Tribe. 

(xii) NGS or Navajo Generating 

Station means the steam electric 

generating station located on the Navajo 

Reservation near Page, Arizona, 

consisting of Units 1, 2, and 3, each 750 


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MW (nameplate rating), the switchyard 

facilities, and all facilities and 

structures used or related thereto. 

(xiii) NOX means nitrogen oxides 

expressed as nitrogen dioxide (NO2). 

(xiv) Owner(s)/operator(s) means any 

person(s) who own(s) or who operate(s), 

control(s), or supervise(s) one more of 

the units of the Navajo Generating 

Station. 

(xv) MMBtu means million British 

thermal unit(s). 

(xvi) Operating hour means any hour 

that fossil fuel is fired in the unit. 

(xvii) Unit means any of Units 1, 2, or 

3 at Navajo Generating Station. 

(xviii) Valid Data means CEMs data 

that is not out of control as defined in 

40 CFR Part 75. 

(3) BART Determination. BART for 

NGS is a NOX emission limit of 0.055 

lb/MMBtu on each Unit with a 

compliance date of July 1, 2019, and is 

used to establish a cap in NOX

emissions, known as the 2009–2044 

NOX Cap. The owner/operator shall 

demonstrate BART compliance by 

ensuring that total NOX emissions from 

NGS, over January 1, 2009 to December 

31, 2044, do not exceed the 2009–2044 

NOX Cap. The owner/operator shall 

implement the applicable operating 

scenario, under paragraph (j)(3)(i), to 

ensure NOX emission reductions 

sufficient to maintain total NOX

emissions below the 2009–2044 NOX

Cap. 

(i) Operating Scenarios to Comply 

with 2009–2044 NOX Cap. 

(A) Alternative A1. 

(1) By December 31, 2019, the owner/ 

operator shall permanently cease 

operation of one coal-fired Unit. 

(2) By December 31, 2030, the owner/ 

operator shall comply with a NOX

emission limit of 0.07 lb/MMBtu on 

each of the two remaining coal-fired 

Units. 

(B) Alternative A2. 

(1) By December 31, 2019, the owner/ 

operator shall permanently cease 

operation of one coal-fired Unit. 

(2) By December 31, 2019, the owner/ 

operator may elect to increase net 

generating capacity of the remaining 

two coal-fired Units by a combined total 

of no more than 189 MW. The actual 

increase in net generating capacity shall 

be limited by the sum of 19 MW and the 

ownership interest, in net MW capacity, 

purchased by the Navajo Nation by 

December 31, 2019. The owner/operator 

shall ensure that any increase in the net 

generating capacity is in compliance 

with all pre-construction permitting 

requirements, as applicable. 

(3) By December 31, 2030, the owner/ 

operator shall comply with a NOX

emission limit of 0.07 lb/MMBtu on 

each of the two remaining coal-fired 

Units. 

(C) Alternative A3. 

(1) By December 31, 2019, the owner/ 

operator shall reduce the net generating 

capacity of NGS by no less than 561 

MW. The actual reduction in net 

generating capacity of NGS shall be 

determined by the difference between 

731 MW and the ownership interest, in 

net MW capacity, purchased by the 

Navajo Nation by December 31, 2019. 

(2) By December 31, 2030, the owner/ 

operator shall comply with a NOX

emission limit of 0.07 lb/MMBtu on two 

Units. 

(D) Alternative B. In addition to the 

2009–2044 NOX Cap that applies 

between January 1, 2009 to December 

31, 2044, during the January 1, 2009 to 

December 31, 2029 period, the owner/

operator shall ensure compliance with 

the 2009–2029 NOX Cap. 

(ii) Applicability of Alternatives. 

(A) Alternative A1 shall apply if both 

of the Departing Participants retire their 

ownership interests in NGS by 

December 31, 2019, and the Navajo 

Nation does not purchase an ownership 

share of NGS by December 31, 2019; or 

if both of the Departing Participants sell 

their ownership interests to Existing 

Participants, and the Navajo Nation 

does not purchase an ownership share 

of NGS by December 31, 2019; or if one 

of the Departing Participants retires its 

ownership interest and the other 

Departing Participant sells its 

ownership interest to an Existing 

Participant, and the Navajo Nation does 

not purchase an ownership share of 

NGS by December 31, 2019. 

(B) Alternative A2 shall apply if both 

of the Departing Participants sell their 

ownership interests to Existing 

Participants, the Navajo Nation elects to 

purchase an ownership share of NGS by 

December 31, 2019, and the owner/

operator elects to increase net 

generating capacity of the two 

remaining Units; or if one of the 

Departing Participants retires its 

ownership interest and the other 

Departing Participant sells its 

ownership interest to an Existing 

Participant, the Navajo Nation elects to 

purchase an ownership share of NGS by 

December 31, 2019, and the owner/

operator elects to increase net 

generating capacity of the two 

remaining Units. 

(C) Alternative A3 shall apply if both 

of the Departing Participants sell their 

ownership interests to Existing 

Participants, the Navajo Nation elects to 

purchase an ownership share of NGS by 

December 31, 2019, and the owner/

operator does not elect to increase net 

generating capacity; or if one of the 

Departing Participants retires its 

ownership interest and the other 

Departing Participant sells its 

ownership interest to an Existing 

Participant, the Navajo Nation elects to 

purchase an ownership share of NGS by 

December 31, 2019, and the owner/

operator does not elect to increase net 

generating capacity. 

(D) Alternative B shall apply if, by 

December 31, 2019, any of the Departing 

Participants sell their ownership 

interests to a Party that is not an 

Existing Participant. 

(4) Reporting and Implementation 

Requirements for BART. 

(i) No later than December 1, 2019, 

the owner/operator must notify EPA of 

the applicable Alternative for ensuring 

compliance with the 2009–2044 NOX

Cap. 

(ii) Beginning January 31, 2015, and 

annually thereafter until the earlier of 

December 22, 2044 or the date on which 

the owner/operator ceases conventional 

coal-fired generation at NGS, the owner/ 

operator shall submit to the Regional 

Administrator, a report summarizing the 

annual heat input, the annual emissions 

of sulfur dioxide, carbon dioxide, and 

annual and cumulative emissions of 

NOX from NGS for the previous full 

calendar year. The owner/operator shall 

make this report available to the public, 

either through a link on its Web site or 

directly on its Web site. 

(iii) No later than December 31, 2020, 

the owner/operator shall submit an 

application to revise its existing Part 71 

Operating Permit to incorporate the 

requirements and emission limits of the 

applicable Alternative to BART under 

paragraph (j)(3). 

(iv) In addition to the requirements of 

paragraphs (j)(4)(i), (ii) and (iii), if 

Alternative B applies, the owner/

operator shall submit annual Emission 

Reduction Plans to the Regional 

Administrator. 

(A) No later than December 31, 2019 

and annually thereafter through 

December 31, 2028, the owner/operator 

shall submit an Emission Reduction 

Plan containing anticipated year-by-year 

emissions covering the period from 

2020 to 2029 that will assure that the 

operation of NGS will result in 

emissions of NOX that do not exceed the 

2009–2029 NOX Cap. The Emission 

Reduction Plan may contain several 

potential operating scenarios and must 

set forth the past annual actual 

emissions and the projected emissions 

for each potential operating scenario. 

Each potential operating scenario must 

demonstrate compliance with the 2009– 

2029 NOX Cap. The Emission Reduction 

Plan shall identify emission reduction 

measures that may include, but are not 


tkelley on DSK3SPTVN1PROD with PROPOSALS
62522 Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Proposed Rules 

limited to, the installation of advanced 

emission controls, a reduction in 

generation output, or other operating 

strategies determined by the owner/

operator. The owner/operator may 

revise the potential operating scenarios 

set forth in the Emission Reduction 

Plan, provided the revised plan ensure 

that NOX emissions remain below the 

2009–2029 NOX Cap. 

(B) No later than December 31, 2029 

and annually thereafter, the owner/

operator shall submit an Emission 

Reduction Plan containing year-by-year 

emissions covering the period from 

January 1, 2030 to December 31, 2044 

that will assure that the operation of 

NGS will result in emissions of NOX

that do not exceed the 2009–2044 NOX

Cap. The Emission Reduction Plan shall 

identify emission reduction measures 

that may include, but are not limited to, 

the installation of advanced emission 

controls, a reduction in generation 

output, or other operating strategies 

determined by the owner/operator. The 

owner/operator may revise the potential 

operating scenarios set forth in the 

Emission Reduction Plan, provided the 

revised plan ensure that NOX emissions 

remain below the 2009–2044 NOX Cap. 

(5) Continuous emission monitoring 

system (CEMS). 

(i) At all times, the owner/operator of 

each unit shall maintain, calibrate, and 

operate a CEMS, in full compliance with 

the requirements found at 40 CFR Part 

75, to accurately measure NOX, diluent, 

and stack gas volumetric flow rate from 

each unit. Valid data means data 

recorded when the CEMS is not out-ofcontrol as defined by Part 75, as defined 

in paragraph (j)(2) of this section. All 

valid CEMS hourly data shall be used to 

determine compliance with the 

emission limitations for NOX in 

paragraph (j)(3) of this section for each 

unit. If the CEMs data is not valid, that 

CEMs data shall be treated as missing 

data and not used to calculate the 

emission average. CEMs data does not 

need to be bias adjusted as defined in 

40 CFR Part 75. Each required CEMS 

must obtain valid data for at least 90 

percent of the unit operating hours, on 

an annual basis. 

(ii) The owner/operator of each unit 

shall comply with the quality assurance 

procedures for CEMS found in 40 CFR 

Part 75. In addition to these Part 75 

requirements, relative accuracy test 

audits shall be calculated for both the 

NOX pounds per hour measurement and 

the heat input measurement. The 

calculation of NOX pounds per hour and 

heat input relative accuracy shall be 

evaluated each time the CEMS undergo 

relative accuracy testing. 

(6) Compliance Determination for 

NOX Emission Limits. 

(i) Compliance with the NOX emission 

limits under paragraphs (j)(3)(i) shall be 

determined on a rolling average basis of 

thirty (30) Boiler Operating Days on a 

unit by unit basis. Compliance shall be 

calculated in accordance with the 

following procedure: (1) Sum the total 

pounds of NOX emitted from the Unit 

during the current Boiler Operating Day 

and the previous twenty-nine (29) Boiler 

Operating Days; (2) sum the total heat 

input to the Unit in MMBtu during the 

current Boiler Operating Day and the 

previous twenty-nine (29) Boiler 

Operating Days; and (3) divide the total 

number of pounds of NOX by the total 

heat input in MMBtu during the thirty 

(30) Boiler Operating Days. A new 30 

Boiler Operating Day rolling average 

shall be calculated for each new Boiler 

Operating Day. Each 30 Boiler Operating 

Day rolling average shall include all 

emissions that occur during periods 

within any Boiler Operating Day, 

including emissions from startup, 

shutdown, and malfunction. 

(ii) 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 for that 30 boiler operating 

day period. 

(7) Recordkeeping. The owner or 

operator of each unit shall maintain the 

following records for at least five years: 

(i) All CEMS data, including the date, 

place, and time of sampling or 

measurement; parameters sampled or 

measured; and results as required by 

Part 75 and as necessary to calculate 

each unit’s pounds of NOX and heat 

input for each hour. 

(ii) Each calendar day rolling average 

group emission rates for NOX calculated 

in accordance with paragraph (j)(6)(i) of 

this section. 

(iii) Each unit’s 30 Boiler Operating 

Day pounds of NOX and heat input. 

(iv) Records of quality assurance and 

quality control activities for emissions 

measuring systems including, but not 

limited to, any records required by 40 

CFR Part 75. 

(v) Records of the relative accuracy 

calculation of the NOX lb/hr 

measurement and hourly heat input. 

(vi) Records of all major maintenance 

activities conducted on emission units, 

air pollution control equipment, and 

CEMS. 

(vii) Any other records required by 40 

CFR Part 75. 

(8) Reporting. All reports and 

notifications under this paragraph (j) 

shall be submitted to the Director, 

Navajo Environmental Protection 

Agency, P.O. Box 339, Window Rock, 

Arizona 86515, and to the Director of 

Enforcement Division, U.S. EPA Region 

IX, at 75 Hawthorne Street, San 

Francisco, CA 94105. 

(i) The owner/operator shall notify 

EPA within two weeks after completion 

of installation of NOX control 

technology on any of the units subject 

to this section. 

(ii) Within 30 days after the first 

applicable compliance date in 

paragraph (j)(3) of this section and 

within 30 days of every second calendar 

quarter thereafter (i.e., semi-annually), 

the owner/operator shall submit a report 

that lists for each calendar day, 

calculated in accordance with paragraph 

(j)(6) of this section, total lb of NOX and 

heat input (as used to calculate 

compliance per paragraph (j)(6), for each 

unit’s last 30 boiler operating days. 

Included in this report shall be the 

results of the last relative accuracy test 

audit and the calculated relative 

accuracy for lb/hr NOX and heat input 

performed 45 days prior to the end of 

that reporting period. The end of the 

year report shall also include the 

percent valid data for each NOX, 

diluent, and flow monitor used in the 

calculations of compliance with 

paragraph (j)(6). 

(9) Enforcement. Notwithstanding any 

other provision in this implementation 

plan, any credible evidence or 

information relevant as to whether the 

unit 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 the owner or 

operator has violated or is in violation 

of any standard or applicable emission 

limit in the plan. 

(10) Equipment Operations. At all 

times, including periods of startup, 

shutdown, and malfunction, the owner 

or operator shall, to the extent 

practicable, maintain and operate the 

unit including associated air pollution 

control equipment in a manner 

consistent with good air pollution 

control practices for minimizing 

emissions. Determination of whether 

acceptable operating and maintenance 

procedures are being used will be based 

on information available to the Regional 

Administrator, or their designee, which 

may include, but is not limited to, 

monitoring results, review of operating 

and maintenance procedures, and 

inspection of the unit. 

(11) Affirmative Defense. The 

affirmative defense provisions of 

paragraphs (c)(1) and (g)(3) of this 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / Proposed Rules 62523 

section, related only to malfunctions, 

apply to this paragraph (j). 

[FR Doc. 2013–24281 Filed 10–21–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0499; FRL- 9901–36- 

Region3] 

Approval and Promulgation of Air 

Quality Implementation Plans; District 

of Columbia; Infrastructure 

Requirements for the 2008 Lead 

National Ambient Air Quality 

Standards and State Board 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve the 

State Implementation Plan (SIP) 

revision submitted by the District of 

Columbia (hereafter ‘‘the District’’) 

pursuant to the Clean Air Act (CAA). 

Whenever new or revised national 

ambient air quality standards (NAAQS) 

are promulgated, the CAA requires 

states to submit a plan for the 

implementation, maintenance, and 

enforcement of such NAAQS. The plan 

is required to address basic program 

elements including, but not limited to, 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure attainment 

and maintenance of the NAAQS. These 

elements are referred to as infrastructure 

requirements. The District has made a 

submittal addressing the infrastructure 

requirements for the 2008 lead (Pb) 

NAAQS (‘‘the infrastructure submittal’’) 

and a separate submittal addressing 

requirements in relation to State Boards. 

This action is being taken under the 

CAA. In the Final Rules section of this 

Federal Register, EPA is approving the 

District’s SIP submittals as a direct final 

rule without prior proposal because the 

Agency views these as noncontroversial 

submittals and anticipates no adverse 

comments. A more detailed description 

of the District’s submittals and EPA’s 

evaluation are included in a Technical 

Support Document (TSD) prepared in 

support of this rulemaking action. A 

copy of the TSD is available, upon 

request, from the EPA Regional Office 

listed in the ADDRESSES section of this 

document. If no adverse comments are 

received in response to this action, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

DATES: Comments must be received in 

writing by November 21, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2013–0499 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2013–0499, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2013– 

0499. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at 

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 information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The 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 email 

comment directly to EPA without going 

through www.regulations.gov, your 

email 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 

electronic docket are listed in the 

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, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the District of Columbia 

Department of the Environment, Air 

Quality Division, 1200 1st Street NE., 

5th floor, Washington, DC 20002. 

FOR FURTHER INFORMATION CONTACT: 

Emlyn Ve ́lez-Rosa, (215) 814–2038, or 

by email at velez-rosa.emlyn@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

further information, please see the 

information provided in the direct final 

action, with the same title, that is 

located in the ‘‘Rules and Regulations’’ 

section of this Federal Register 

publication. 

Dated: September 13, 2013. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2013–24124 Filed 10–21–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–ES–R8–2012–0075; 

4500030113] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding on a 

Petition To List Ashy Storm-Petrel as 

an Endangered or Threatened Species 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 12-month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce a 12-month 

finding on a petition to list the ashy 

storm-petrel (Oceanodroma homochroa) 

as an endangered or threatened species 

and to designate critical habitat under 

the Endangered Species Act of 1973, as 

amended (Act). After review of the best 


tkelley on DSK3SPTVN1PROD with PROPOSALS