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[Federal Register: March 5, 2010 (Volume 75, Number 43)]
[Rules and Regulations]               
[Page 10174-10182]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr10-5]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R09-OAR-2006-0185; FRL-9122-3]
RIN 2009-AA00

 
Source-Specific Federal Implementation Plan for Navajo Generating 
Station; Navajo Nation

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating a 
source-specific Federal Implementation Plan (FIP) to regulate emissions 
from the Navajo Generating Station (NGS), a coal-fired power plant 
located on the Navajo Indian Reservation near Page, Arizona. EPA 
proposed the NGS FIP on September 12, 2006, to establish federally 
enforceable limitations for TSP, SO2, and opacity, and 
control measures for dust. The limits had previously been established 
in the Arizona SIP. EPA promulgated the Tribal Authority Rule in 1998, 
clarifying that state air quality regulations generally did not apply 
to facilities on Indian reservations and that EPA should fill the 
regulatory gap as necessary or appropriate. This action fills the 
regulatory gap for the NGS facility.

DATES: Effective Date: This rule is effective on April 5, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. R09-OAR-2006-0185. All documents in the docket are listed in the 
Federal eRulemaking portal index at http://www.regulations.gov and are 
available either electronically at http://www.regulations.gov or in 
hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, 
California 94105. To inspect the hard copy materials, please schedule 
an appointment during normal business hours with the contact listed in 
the FOR FURTHER INFORMATION CONTACT section. A reasonable fee may be 
charged for copies.

FOR FURTHER INFORMATION CONTACT: Sarvy Mahdavi, EPA Region IX, (415) 
972-3173, mahdavi.sarvy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Background of the Final Rule
    A. Summary of Final FIP Provisions
II. Analysis of Major Issues Raised by Commenters
    A. Concerns About the Scope of the FIP
    B. Comments on Emissions Limits
III. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
    Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Petitions for Judicial Review

I. Background of the Final Rule

    NGS is a 2,250 megawatt coal-fired power plant located on the 
Navajo Indian Reservation near Page, Arizona. Salt River Project 
(``SRP'') is the operating agent for NGS, which is jointly owned by 
SRP, the United States Bureau of Reclamation, the Los Angeles 
Department of Water and Power, the Arizona Public Service, the Nevada 
Power Company, and the Tucson Electric Power Company. Since 1974, NGS 
has been operating on real property held in trust by the federal 
government for the Navajo Nation. The facility consists of three 750 MW 
coal-fired electric utility steam generating units.
    In 1999, EPA initially proposed to promulgate a FIP to regulate 
emissions from NGS. See 64 FR 48725 (September 8, 1999) (1999 proposed 
FIP). At that time, NGS was meeting certain emissions limits in the 
Arizona State Implementation Plan (SIP). However, because the Arizona 
SIP is not approved to apply on the Navajo Indian Reservation, and 
because the Navajo Nation did not have a federally applicable tribal 
implementation plan (TIP), EPA proposed to promulgate a FIP to remedy 
the existing regulatory gap. The 1999 proposed FIP, therefore, would 
have, in essence, federalized the requirements contained in the Arizona 
SIP which NGS had historically followed. In explaining the basis for 
its proposed action, EPA stated that given the magnitude of emissions 
from the

[[Page 10175]]

plant, the Agency believed the proposed FIP provisions were necessary 
and appropriate to ensure the protection of air quality on the 
Reservation. See 64 FR at 48726.
    When EPA proposed the 1999 FIP, NGS was also subject to emissions 
limits for sulfur dioxide (SO2) that EPA had promulgated in 
1991 when we revised a visibility FIP for Arizona to include 
requirements for NGS. See 56 FR 50172 (Oct. 3, 1991), codified at 40 
CFR 52.145(d). The requirements of EPA's 1991 revised visibility FIP 
are not being amended or changed by today's action, but 40 CFR 
52.145(d) is being recodified to 40 CFR part 49.
    EPA did not finalize the 1999 proposed FIP. Instead, EPA proposed a 
new FIP in September, 2006. See 71 FR 53639 (September 12, 2006) (2006 
proposed FIP).
    In the 2006 proposed FIP, EPA again explained that to remedy the 
regulatory gap that exists with regard to NGS because the Arizona SIP 
does not apply to sources located on the Navajo Indian Reservation, the 
Agency was proposing to issue a source-specific FIP establishing 
federally enforceable emission limits for SO2, particulate 
matter (PM), and opacity, and control measures for dust. The proposed 
limits were similar to those in the Arizona SIP which NGS has 
historically followed, but EPA proposed to include some additional 
requirements for reducing opacity and fugitive dust emissions from coal 
handling operations. Specifically, the 2006 proposed FIP lowered the 
opacity limit from 40% to 20% and included requirements to control 
emissions associated with coal and ash handling and storage.
    EPA's objective at this time in promulgating this final FIP for NGS 
is to remedy the existing regulatory gap described in our 1999 and 2006 
proposals. Today's action will make federally enforceable the emission 
limitations which NGS has historically followed and will ensure that 
NGS complies with the opacity limit of 20% and control measures for 
dust from coal and ash handling and storage operations. This final 
action will help to advance the goals of ensuring continued maintenance 
of the national ambient air quality standards and protecting 
visibility. Given the importance of these goals and the magnitude of 
emissions from the plant, EPA believes that making these limits 
federally enforceable is appropriate to protect air quality on the 
Reservation and is accordingly exercising its discretionary authority 
under sections 301(a) and 301(d)(4) of the Clean Air Act (``CAA'') and 
40 CFR 49.11(a) to promulgate a FIP containing provisions to achieve 
these ends.
    As explained in our proposal in this action, the SO2 
emissions limit in today's final rule is a short-term emissions limit, 
which will be enforceable in addition to the rolling 365 day average 
emission limit in the 1991 visibility FIP. For PM emissions, EPA is 
finalizing its proposal to federalize the emissions limits which NGS 
historically followed from the Arizona SIP. The Arizona SIP did not 
contain any nitrogen oxides (NOX) emissions limits for NGS, 
and today's final rule does not impose any limits on NOX. 
However, we note that NGS is subject to the Federal Acid Rain 
requirements under title IV of the Clean Air Act. NGS elected to comply 
early as a Phase I NOX facility which means NGS currently 
has a NOX limit of 0.40 lbs/MMbtu, per unit, on an annual 
basis. EPA will also address the emissions of NOx and PM separately 
through EPA's Regional Haze rule (codified at 40 CFR 51.308) to require 
best available retrofit technology for these pollutants, as discussed 
in more detail in our response to comments.

A. Summary of Final FIP Provisions

    1. EPA is finalizing its proposal to limit particulate matter to 
0.060 pounds per million british thermal units (lbs/MMbtu), and 
specifying at least three 60 minute sampling runs for each stack. 
Additionally, this final rule changes the averaging time for the 
particulate matter limit from the proposed 6 hour average to a three 
hour average based on three runs, each lasting approximately one hour. 
The particulate standard will be measured on a plant-wide basis and is 
also the way in which the State of Arizona has historically determined 
compliance at NGS.
    2. EPA is finalizing its proposal that opacity from each unit is 
limited to 20% averaged over any normal 6 minute period, excluding 
condensed water vapour, and 40% opacity, averaged over 6 minutes, 
during absorber upset transition periods. The final opacity standard 
excludes uncombined water droplets. NGS has opacity monitors on each of 
its stacks; water droplets, which will be present in all stacks because 
of the SO2 scrubbers, cause inaccurate excess emission 
readings on the opacity monitors. Therefore, in the final rule excess 
opacity due to uncombined water droplets in the stack does not 
constitute an exceedance, but it will be reported on the quarterly 
excess emissions reports.
    3. EPA is finalizing its proposal that SO2 emissions are 
limited to 1 lb/MMbtu averaged over a three-hour period, on a plant-
wide basis. The emissions limit for SO2 was previously 
established in the Arizona SIP. The method of compliance determination 
has been changed from the proposal which based compliance on the sulfur 
content of coal. In the final rule, compliance is based on continuous 
emission monitoring (CEM). This change is being made because the 
Federal acid rain regulations require CEM monitoring, which is 
generally recognized as being more accurate and precise than monitoring 
the sulfur content of coal. NGS previously complied with the limit of 1 
lb/MMbtu on a per-unit basis by using very low sulfur coal. Because NGS 
has now installed scrubbers to comply with the 1991 visibility FIP, 
however, NGS will be able to comply with its short-term limits by 
removing sulfur from the exhaust stream. This will allow NGS to 
purchase slightly higher sulfur coal; additionally, the plant-wide 
average allows one scrubber to be down for periodic maintenance 
(lasting usually 30 to 40 days) without requiring the purchase of 
specific low sulfur coal for use during the maintenance. In the final 
rule, as in the proposal, the actual SO2 emissions from NGS 
will remain 90% lower on an annual basis than they were before the 
scrubbers were installed to comply with the 1991 visibility FIP. To 
ensure that NGS continues to meet this limit, this rule will finalize 
the proposal to limit SO2 emissions to 1 lb/MMbtu on a 3 
hour average limit. With the scrubbers in place, the plant-wide hourly 
emissions (tons per hour) will always be less than under the prior 
state limit, since at least one unit with its scrubber operating and 
removing SO2 will be needed to meet the plant-wide 
SO2 three hour limit.
    4. EPA is finalizing its proposal that opacity is limited to 20 
percent averaged over a six minute period for both the boiler stacks 
and for dust from emission associated with coal transfer and storage 
and other dust-generating activities. NGS is required to submit a 
description of the dust control measures.

II. Analysis of Major Issues Raised by Commenters

    EPA held a public informational workshop and hearing on the 
proposed FIP for NGS at the same time as the workshop and hearing on a 
proposed FIP for the Four Corners Power Plant. The joint public hearing 
was held in Farmington, New Mexico, on October 5, 2006. Although EPA 
received only one comment letter directed specifically at the proposed 
FIP for NGS, we received 43 comments on the proposed FIP for the Four 
Corners Power Plant (``FCPP

[[Page 10176]]

FIP''), many of which either explicitly or implicitly addressed both 
actions. For example, several comments objected in general terms to 
allowing operation of coal fired power plants. We responded to comments 
on the FCPP FIP in a Federal Register Notice on May 7, 2007 (72 FR 
25698). Some of our responses to comments in this action are identical 
or very similar to the response to comments for the FCPP FIP because 
the comments were identical or similar. Commenters raised concerns 
which focused on general issues about air quality and health in the 
area, and more specific concerns about the emission limits and control 
requirements in the proposed FIP. The one comment letter received 
relating exclusively to NGS was from SRP and raised specific technical 
issues. Significant comments, including SRP's comments, are summarized 
below.
    Our complete Response to Comments is contained in a separate 
document in the docket for this rulemaking. A summary of the 
significant comments and responses is provided below.

A. Concerns About the Scope of the FIP

    Comment: The majority of commenters objecting to both the FCPP and 
NGS FIPs indicated that EPA should go beyond merely federalizing the 
emission limits which NGS has historically followed. Other commenters 
urged EPA to take regulatory action to regulate or to further reduce 
emissions of SO2, NOX, PM, mercury, and ``toxic 
emissions.'' Commenters raised a variety of general concerns regarding 
impacts associated with coal fired power plants such as NGS, including 
public health and/or environmental impacts of fugitive dust from coal 
mining, mercury (Hg) and carbon dioxide (CO2, greenhouse 
gases). Another commenter argued that in issuing a FIP for NGS, EPA 
must comply not only with all of the requirements of section 301 of the 
CAA but also ensure through the FIP process that NGS is in compliance 
with all applicable federal and state ambient standards by complying 
with the requirements of section 110 of the CAA addressing State 
implementation plans.
    Response: As stated above, EPA's authority to promulgate this 
source-specific FIP is based on CAA sections 301(a) and (d)(4) and the 
regulations implementing these provisions at 40 CFR Part 49. Today's 
action is not based on, nor is it subject to the requirements of, CAA 
section 110. CAA section 301(d)(4) provides EPA with broad discretion 
to promulgate regulations directly for sources located in Indian 
country. The Tribal Air Rule provides EPA with ``discretion to 
determine what rulemaking is necessary or appropriate to protect air 
quality and requires the EPA to promulgate such rulemaking.'' Arizona 
Public Service Company v. USEPA, 562 F.3d 1116, 1125 (10th Cir. 2009).
    EPA is exercising its discretion to promulgate emission limitations 
for NGS to close the regulatory gap that exists with respect to NGS. As 
explained above, at present there is no approved implementation plan 
covering NGS because the Arizona SIP does not apply to sources located 
on the Navajo Indian Reservation and the Navajo Nation has not 
promulgated an applicable Tribal Implementation Plan. EPA's exercise of 
authority in issuing this FIP is based on the Agency's conclusion that 
it is appropriate to protect air quality on the Reservation by 
remedying the lack of federally enforceable limits applicable to NGS. 
As such, our action is largely limited to making enforceable those 
emissions limits which NGS has historically followed and re-codifying 
the limitations applicable to NGS in the visibility FIP for Arizona. We 
have also finalized our proposal to lower the opacity limit and to add 
certain material handling measures to provide additional benefits to 
air quality and visibility, and to conform to revisions that have been 
approved into the Arizona SIP.
    Today's action is an important step in protecting air quality on 
the Reservation. As noted in the proposal, this action will contribute 
towards ensuring continued maintenance of the NAAQS and towards 
protecting visibility. EPA acknowledges that additional regulatory 
actions by EPA may be necessary or appropriate in the future to further 
protect air quality on the Navajo Reservation, depending on, among 
other things, conditions on the Reservation and the decisions of the 
Navajo Nation to implement air quality programs. Our detailed response 
to comments on mercury, CO2 and other emissions is discussed 
further below and in our Response to Comments document.

B. Comments on Emissions Limits

    Comment: Several commenters urged EPA to take regulatory action in 
addition to the proposed FIP to require reductions of NOX 
and PM emissions from NGS. In particular, several commenters urged EPA 
to undertake a determination of best available retrofit technology 
(BART) for NGS's NOX emissions. See 40 U.S.C. 7491(b)(2)(A). 
One commenter noted that NGS is the 8th largest NOX emitter 
in the U.S. and that the FIP was not addressing NOX or the 
environmental impact from the NOX emissions. The commenter 
also requested an explanation of when and at what levels BART limits 
would be applied to PM, mercury, VOC and other pollutants.
    Response: EPA agrees that it may be necessary or appropriate in a 
future rulemaking to require NGS to reduce its NOX or PM 
emissions below those levels which were historically contained in the 
Arizona SIP (and are now contained in this FIP) or which are necessary 
to comply with the Acid Rain program. In the 1991 revision of the 
visibility FIP that created SO2 emission limits for NGS, EPA 
concluded that those limits achieved greater reasonable progress than 
would BART, but did not address emissions of NOX or PM from 
NGS. Today's rule does not address the requirements of EPA's nationally 
applicable Regional Haze rule, codified at 40 CFR 51.308, which 
contains specific implementation plan requirements regarding BART 
determinations.\1\
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    \1\ Such implementation plans were not required from the States 
until December 17, 2007. Tribes are not subject to any mandatory 
deadlines to submit regional haze implementation plans. See 40 CFR 
49.4; 64 FR at 35758 (``For example, unlike States, tribes are not 
required by the TAR to adopt and implement CAA plans or programs, 
thus tribes are not subject to mandatory deadlines for submittal of 
implementation plans.''); see also Arizona Public Service Company v. 
USEPA, 562 F.3d at 1119).
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    EPA recognizes, however, the importance of addressing emissions of 
NOX and PM from NGS for purposes of addressing NGS's 
contribution to visibility impairment. EPA has requested and SRP has 
submitted an analysis of the NOX and PM control options to 
address BART. This document and supplemental submittals are available 
on the docket EPA has prepared for the BART rulemaking available at: 
http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=EPA-R09-OAR-2008-0454.
    EPA is reviewing the information provided, and consulting with the 
Federal Land Manager(s), States with Class I areas impacted by NGS, and 
tribes to determine the appropriate BART limits for NGS. On August 28, 
2009, EPA issued an Advance Notice of Proposed Rulemaking (``ANPR'') 
concerning the anticipated visibility improvements and the cost 
effectiveness for different levels of air pollution controls as BART 
for NGS and for another coal-fired power plant located on the Navajo 
Nation, Four Corners Power Plant (``FCPP''). EPA issued the ANPR for 
the specific purpose of collecting additional information that EPA may 
consider in modeling the degree of anticipated visibility

[[Page 10177]]

improvements in the Class I areas surrounding the two power plants and 
for determining whether BART controls are cost effective at this time. 
EPA also requested any additional information that commenters believe 
the agency should consider in promulgating a FIP establishing BART for 
the two power plants.
    After considering the information received in response to the ANPR 
and other relevant information, EPA intends to publish separate FIPs 
proposing EPA's BART determinations for FCPP and NGS under the Regional 
Haze rules. After evaluating all comments on the proposed BART 
determination for NGS, EPA will take final action regarding the BART 
requirements at NGS.
    Although it is unlikely that VOC emitted from NGS will be regulated 
for visibility protection under the Regional Haze rules, comments 
concerning the contribution of VOCs to visibility impairment are more 
appropriately considered during the regional haze rulemaking discussed 
above. Historically, VOC emissions from coal-fired electric generating 
units (EGUs) have not been considered a significant contributor to 
visibility impairment, and EPA knows of no states in the West that are 
considering setting limits on coal-fired EGU VOC emissions for regional 
haze. In the West, the quantity of emissions of VOC from EGUs is 
relatively insignificant compared to the quantity of VOC emissions from 
biogenic sources, fires, or mobile sources.
    EPA is not considering setting a BART limit for mercury as there is 
no evidence that mercury contributes to visibility impairment. On 
October 28, 2009, pursuant to CAA section 113(g), EPA published in the 
Federal Register for comment a proposed Consent Decree that would 
require the Agency to propose CAA section 112(d) standards to control 
hazardous air pollutants, including mercury, from coal- and oil-fired 
electric utility steam generating units by March 16, 2011, and issue 
final section 112(d) standards by November 16, 2011. EPA will request 
public comment on that rulemaking and will consider any significant 
comments on this issue that are raised during our section 112(d) 
rulemaking.
    Comment: SRP requested that the particulate matter limit in the 
proposed rule be revised for better clarity. The requested changes 
included that compliance would be determined from at least three test 
runs over a 60 minute duration at each stack.
    Response: EPA agrees with SRP's proposed changes to the particulate 
matter limit and has made the appropriate revisions in the final rule 
which include specifying at least three 60 minute sampling runs for 
each stack. This also changes the averaging time for the particulate 
matter limit from the proposed 6 hour average to a three hour average 
based on three runs lasting approximately one hour each.
    Comment: SRP requested the end of the startup limit for NGS be 
increased from 300 to 400 MW to maintain consistency with the end of 
the startup limit for FCPP.
    Response: Other than noting that EPA allowed a startup termination 
limit of 400 MW for FCPP, SRP has not provided an explanation as to why 
a startup termination limit of 400 MW is more appropriate for NGS than 
300 MW. The critical factor in the startup is that the hot side ESP 
reaches 400[deg] so that it may be expected to operate properly. This 
temperature can be reached when the NGS units reach 300 MW. To allow 
the startup to extend beyond this operating level simply because EPA 
agreed to it for FCPP, which has completely different control 
technology with different operational limitations, is not reasonable. 
Given that the control technology at NGS is different from the control 
technology at FCPP, and that NGS provided no technical justification 
for making the change from 300 MW to 400 MW, EPA maintains the 300 MW 
startup termination limit for NGS along with the proposed 400[deg] 
precipitator temperature.
    Comment: SRP requested a change to the shutdown definition, because 
they claimed that the first sentence, which referred to cessation of 
coal burning, was incorrect.
    Response: EPA agrees and dropped the first sentence of the 
definition referring to cessation of coal burning, since coal may still 
be combusted when a unit load reaches 300 MW or less and the intention 
is to remove the unit from service.
    Comment: SRP requested that NGS be exempt from opacity monitoring 
requirements, consistent with 40 CFR 75.14(b) which exempts units 
equipped with a wet flue pollution control system for SO2 or 
particulates from the monitoring requirements of part 75, if the source 
``can demonstrate that condensed water is present in the exhaust flue 
gas stream and would impede the accuracy of opacity measurements.''
    Response: EPA agrees with SRP's comments that when the stack is 
saturated and has uncombined water droplets, the Continuous Opacity 
Monitoring Systems (COMs) cannot correctly read the opacity due to 
particulate matter and has updated the final rule to reflect this 
change; however, NGS will continue to have a requirement to operate 
COMs on each stack since the COMs do operate properly during start-up 
and at other times when the SO2 scrubbers are bypassed for 
maintenance purposes. SRP has operated the monitors for a number of 
years and EPA does not find that an exemption allowed in part 75 is 
appropriate in this rule.

III. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    This action is not ``significant regulatory action'' under the 
terms of ``Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the EO. This action will 
finalize a source-specific FIP for the Navajo Generating Station on the 
Navajo Nation.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Under the Paperwork Reduction Act, a ``collection of information'' is 
defined as a requirement for ``answers to * * * identical reporting or 
recordkeeping requirements imposed on ten or more persons * * *.'' 44 
U.S.C. 3502(3)(A). Because the FIP applies to a single facility, NGS, 
the Paperwork Reduction Act does not apply. See 5 CFR 1320(c).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare

[[Page 10178]]

a regulatory flexibility analysis of any rule subject to notice and 
comment rulemaking requirements under the Administrative Procedure Act 
or any other statute unless the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final action on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The FIP for 
NGS being finalized today does not impose any new requirements on small 
entities. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 
(D.C. Cir. 1985)

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA. This 
action is also not subject to the requirements of section 203 of UMRA 
because it contains no regulatory requirements that might significantly 
or uniquely affect small governments. This action will make emissions 
limits from a single source federally enforceable.

E. Executive Order 13132: Federalism

    Under section 6(b) of Executive Order 13132, EPA may not issue an 
action that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed action. In addition, under section 6(c) of 
Executive Order 13132, EPA may not issue an action that has federalism 
implications and that preempts State law, unless the Agency consults 
with State and local officials early in the process of developing the 
proposed action.
    EPA has concluded that this action may have federalism implications 
because it makes emissions limits from a specific source federally 
enforceable. However, it will not impose substantial direct compliance 
costs on State or local governments, nor will it preempt State law. 
Thus, the requirements of sections 6(b) and 6(c) of the Executive Order 
do not apply to this action.
    Consistent with EPA policy, EPA nonetheless consulted with 
representatives of State and local governments \2\ early in the process 
of developing the proposed action to permit them to have meaningful and 
timely input into its development.
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    \2\ ``Representatives of State and local governments'' include 
non-elected officials of State and local governments and any 
representative national organizations not listed in footnote 3.
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F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires 
EPA to develop ``an accountable process to ensure meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' Under Executive Order 13175, to the 
extent practicable and permitted by law, EPA may not issue a regulation 
that has tribal implications, that imposes substantial direct 
compliance costs on Indian tribal governments, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay direct compliance costs incurred by tribal governments, or EPA 
consults with tribal officials early in the process of developing the 
proposed regulation and develops a tribal summary impact statement. In 
addition, to the extent practicable and permitted by law, EPA may not 
issue a regulation that has tribal implications and pre-empts tribal 
law unless EPA consults with tribal officials early in the process of 
developing the proposed regulation and prepares a tribal summary impact 
statement.
    EPA has concluded that this final rule may have tribal implications 
because it will impose federally enforceable emissions limitations on a 
major stationary source located and operating on the Navajo 
reservation. However, this final rule will neither impose substantial 
direct compliance costs on tribal governments nor pre-empt Tribal law 
because the final FIP imposes obligations only on the owner or operator 
of NGS.
    EPA has also consulted extensively with officials of the Navajo 
Nation in the process of developing this regulation. EPA had 
discussions with Tribal representatives during proposal of the FIP in 
1999. We also consulted prior to the 2006 FIP proposal and Tribal 
officials attended the public information workshop and public hearing 
on the proposed FIP in 2006. Therefore, EPA has allowed the Navajo 
Nation to provide meaningful and timely input into the development of 
this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be economically significant as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it only 
makes previously applicable emissions standards federally enforceable. 
Because this action federalizes existing requirements, it is not 
economically significant as defined under Executive Order 12866, and 
does not have a disproportionate effect on children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, 12 (10) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus

[[Page 10179]]

standards (VCS) in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. VCS are 
technical standards (e.g., materials specifications, test methods, 
sampling procedures and business practices) that are developed or 
adopted by the VCS bodies. The NTTAA directs EPA to provide Congress, 
through annual reports to OMB, with explanations when the Agency 
decides not to use available and applicable VCS.
    Consistent with the NTTAA, the Agency conducted a search to 
identify potentially applicable VCS. For the measurements listed below, 
there are a number of VCS that appear to have possible use in lieu of 
the EPA test methods and performance specifications (40 CFR part 60, 
appendices A and B) noted next to the measurement requirements. It 
would not be practical to specify these standards in the current 
rulemaking due to a lack of sufficient data on equivalency and 
validation and because some are still under development. However, EPA's 
Office of Air Quality Planning and Standards is in the process of 
reviewing all available VCS for incorporation by reference into the 
test methods and performance specifications of 40 CFR part 60, 
appendices A and B. Any VCS so incorporated in a specified test method 
or performance specification would then be available for use in 
determining the emissions from this facility. This will be an ongoing 
process designed to incorporate suitable VCS as they become available.

Particulate Matter Emissions--EPA Methods 1 though 5.
Opacity--EPA Method 9 and Performance Specification Test 1 for Opacity 
Monitoring.
SO2--EPA Method 6C and Performance Specification 2 for 
Continuous SO2 Monitoring.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes 
federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. This final rule requires emissions reductions and 
makes emissions limitations federally enforceable for a major 
stationary source.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective April 5, 2010.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 4, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See CAA section 307(b) (2).)

List of Subjects in 40 CFR Part 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Indians, Intergovernmental relations, Reporting 
and recordkeeping requirements.

    Dated: February 25, 2010.
Lisa P. Jackson,
Administrator.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 49--[AMENDED]

0
1. The authority citation for part 49 continues to read as follows:

    Authority:  42 U.S.C. 7401, et seq.

Subpart A--[Amended]

0
2. Section 49.24 is added to subpart A to read as follows:


Sec.  49.24  Federal Implementation Plan Provisions for Navajo 
Generating Station, Navajo Nation.

    (a) Applicability. The provisions of this section shall apply to 
each owner or operator of the fossil fuel-fired, steam-generating 
equipment designated as Units 1, 2, and 3, equipment associated with 
coal and ash handling, and the two auxiliary steam boilers at the 
Navajo Generating Station (NGS) on the Navajo Nation located in the 
Northern Arizona Intrastate Air Quality Control Region (see 40 CFR 
81.270).
    (b) Compliance Dates. Compliance with the requirements of this 
section is required upon the effective date of this section.
    (c) Definitions. For the purposes of this section:
    (1) Absorber upset transition period means the 24-hour period 
following an upset of an SO2 absorber module which resulted 
in the absorber being taken out of service.
    (2) Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding. This rule provides an affirmative defense to 
actions for penalties brought for excess emissions that arise during 
certain malfunction episodes.
    (3) Malfunction means any sudden and unavoidable failure of air 
pollution control equipment or process equipment or of a process to 
operate in a normal or usual manner. Failures that are caused entirely 
or in part by poor maintenance, careless operation, or any other 
preventable upset condition or preventable equipment breakdown shall 
not be considered malfunctions. An affirmative defense is not available 
if during the period of excess emissions, there was an exceedance of 
the relevant ambient air quality standard that could be attributed to 
the emitting source.

[[Page 10180]]

    (4) Owner or Operator means any person who owns, leases, operates, 
controls or supervises the NGS, any of the fossil fuel-fired, steam-
generating equipment at the NGS, or the auxiliary steam boilers at the 
NGS.
    (5) Plant-wide means a weighted average of particulate matter and 
SO2 emissions for Units 1, 2, and 3 based on the heat input 
to each unit as determined by 40 CFR part 75.
    (6) Point source means any crusher, any conveyor belt transfer 
point, any pneumatic material transferring, any baghouse or other 
control devices used to capture dust emissions from loading and 
unloading, and any other stationary point of dust that may be observed 
in conformance with Method 9 of Appendix A-4 of 40 CFR Part 60 
(excluding stockpiles).
    (7) Regional Administrator means the Regional Administrator of the 
Environmental Protection Agency Region 9 or his/her authorized 
representative.
    (8) Startup shall mean the period from start of fires in the boiler 
with fuel oil, to the time when the electrostatic precipitator is 
sufficiently heated such that the temperature of the air preheater 
inlet reaches 400 degrees Fahrenheit and when a unit reaches 300 MW net 
load. Proper startup procedures shall include energizing the 
electrostatic precipitator prior to the combustion of coal in the 
boiler. This rule provides an affirmative defense to actions for 
penalties brought for excess emissions that arise during startup 
episodes. An affirmative defense is not available if during the period 
of excess emissions, there was an exceedance of the relevant ambient 
air quality standard that could be attributed to the emitting source.
    (9) Shutdown shall begin when the unit drops below 300 MW net load 
with the intent to remove the unit from service. The precipitator shall 
be maintained in service until boiler fans are disengaged. This rule 
provides an affirmative defense to actions for penalties brought for 
excess emissions that arise during shutdown episodes. An affirmative 
defense is not available if during the period of excess emissions, 
there was an exceedance of the relevant ambient air quality standard 
that could be attributed to the emitting source.
    (10) Oxides of nitrogen (NOX) means the sum of nitrogen 
oxide (NO) and nitrogen dioxide (NO2) in the flue gas, 
expressed as nitrogen dioxide.
    (d) Emissions Limitations and Control Measures--(1) Sulfur Oxides. 
No owner or operator shall discharge or cause the discharge of sulfur 
oxides into the atmosphere from Units 1, 2, or 3 in excess of 1.0 pound 
per million British thermal units (lb/MMBtu) averaged over any three 
(3) hour period, on a plant-wide basis.
    (2) Particulate Matter. No owner or operator shall discharge or 
cause the discharge of particulate matter into the atmosphere in excess 
of 0.060 lb/MMBtu, on a plant-wide basis, as averaged from at least 
three sampling runs per stack, each at a minimum of 60 minutes in 
duration, each collecting a minimum sample of 30 dry standard cubic 
feet.
    (3) Dust. Each owner or operator shall operate and maintain the 
existing dust suppression methods for controlling dust from the coal 
handling and storage facilities. Within ninety (90) days after 
promulgation of these regulations the owner or operator shall submit to 
the Regional Administrator a description of the dust suppression 
methods for controlling dust from the coal handling and storage 
facilities, fly ash handling and storage, and road sweeping activities. 
Each owner or operator shall not emit dust with an opacity greater than 
20% from any crusher, grinding mill, screening operation, belt 
conveyor, truck loading or unloading operation, or railcar unloading 
station, as determined using 40 CFR Part 60, Appendix A-4 Method 9.
    (4) Opacity. No owner or operator shall discharge or cause the 
discharge of emissions from the stacks of Units 1, 2, or 3 into the 
atmosphere exhibiting greater than 20% opacity, excluding condensed 
uncombined water droplets, averaged over any six (6) minute period and 
40% opacity, averaged over six (6) minutes, during absorber upset 
transition periods.
    (e) Testing and Monitoring. (1) On and after the effective date of 
this regulation, the owner or operator shall maintain and operate 
Continuous Emissions Monitoring Systems (CEMS) for NOx and 
SO2 and Continuous Opacity Monitoring Systems (COMS) on 
Units 1, 2, and 3 in accordance with 40 CFR 60.8 and 60.13(e), (f), and 
(h), and Appendix B of Part 60. The owner or operator shall comply with 
the quality assurance procedures for CEMS and COMS found in 40 CFR part 
75.
    (2) The owner or operator shall conduct annual mass emissions tests 
for particulate matter on Units 1, 2, and 3, operating at rated 
capacity, using coal that is representative of that normally used. The 
tests shall be conducted using the appropriate test methods in 40 CFR 
Part 60, Appendix A.
    (3) During any calendar year in which an auxiliary boiler is 
operated for 720 hours or more, and at other times as requested by the 
Administrator, the owner or operator shall conduct mass emissions tests 
for sulfur dioxide, nitrogen oxides and particulate matter on the 
auxiliary steam boilers, operating at rated capacity, using oil that is 
representative of that normally used. The tests shall be conducted 
using the appropriate test methods in 40 CFR Part 60, Appendix A. For 
particulate matter, testing shall consist of three test runs. Each test 
run shall be at least sixty (60) minutes in duration and shall collect 
a minimum volume of thirty (30) dry standard cubic feet.
    (4) The owner or operator shall maintain two sets of opacity 
filters for each type of COMS, one set to be used as calibration 
standards and one set to be used as audit standards. At least one set 
of filters shall be on site at all times.
    (5) All emissions testing and monitor evaluation required pursuant 
to this section shall be conducted in accordance with the appropriate 
method found in 40 CFR Part 60, Appendices A and B.
    (6) The owner or operator shall install, maintain and operate 
ambient monitors at Glen Canyon Dam for particulate matter 
(PM2.5 and PM10), nitrogen dioxide, sulfur 
dioxide, and ozone. Operation, calibration and maintenance of the 
monitors shall be performed in accordance with 40 CFR Part 58, 
manufacturer's specification, and ``Quality Assurance Handbook for Air 
Pollution Measurements Systems'', Volume II, U.S. EPA as applicable to 
single station monitors. Data obtained from the monitors shall be 
reported annually to the Regional Administrator. All particulate matter 
samplers shall operate at least once every six days, coinciding with 
the national particulate sampling schedule.
    (7) Nothing herein shall limit EPA's ability to ask for a test at 
any time under section 114 of the Clean Air Act, 42 U.S.C. 7413, and 
enforce against any violation of the Clean Air Act or this section.
    (8) A certified EPA Reference Method 9 of Appendix A-4 of 40 CFR 
Part 60 observer shall conduct a weekly visible emission observation 
for the equipment and activities described under Section 49.24(d)(3). 
If visible emissions are present at any of the equipment and/or 
activities, a 6-minute EPA Reference Method 9 observation shall be 
conducted. The name of the observer, date, and time of observation, 
results of the observations, and any corrective actions taken shall be 
noted in a log.
    (f) Reporting and Recordkeeping Requirements. Unless otherwise 
stated all requests, reports, submittals, notifications and other 
communications to the Regional Administrator required by this section 
shall be submitted to the

[[Page 10181]]

Director, Navajo Environmental Protection Agency, P.O. Box 339, Window 
Rock, Arizona 86515, (928) 871 -7692, (928) 871-7996 (facsimile), and 
to the Director, Air Division, U.S. Environmental Protection Agency, 
Region IX, to the attention of Mail Code: AIR-5, at 75 Hawthorne 
Street, San Francisco, California 94105, (415) 972-3990, (415) 947-3579 
(facsimile). For each unit subject to the emissions limitations in this 
section the owner or operator shall:
    (1) Comply with the notification and recordkeeping requirements for 
testing found in 40 CFR 60.7. All data/reports of testing results shall 
be submitted to the Regional Administrator and postmarked within 60 
days of testing.
    (2) For excess emissions, notify the Navajo Environmental 
Protection Agency Director and the U.S. Environmental Protection Agency 
Regional Administrator by telephone or in writing within one business 
day. This notification should be sent to the Director, Navajo 
Environmental Protection Agency, by mail to: P.O. Box 339, Window Rock, 
Arizona 86515, or by facsimile to: (928) 871-7996 (facsimile), and to 
the Regional Administrator, U.S. Environmental Protection Agency Region 
9, by mail to the attention of Mail Code: AIR-5, at 75 Hawthorne 
Street, San Francisco, California 94105, by facsimile to: (415) 947-
3579 (facsimile), or by e-mail to: r9.aeo@epa.gov. A complete written 
report of the incident shall be submitted to the Regional Administrator 
within ten (10) working days after the event. This notification shall 
include the following information:
    (i) The identity of the stack and/or other emissions points where 
excess emissions occurred;
    (ii) The magnitude of the excess emissions expressed in the units 
of the applicable emissions limitation and the operating data and 
calculations used in determining the magnitude of the excess emissions;
    (iii) The time and duration or expected duration of the excess 
emissions;
    (iv) The identity of the equipment causing the excess emissions;
    (v) The nature and cause of such excess emissions;
    (vi) If the excess emissions were the result of a malfunction, the 
steps taken to remedy the malfunction and the steps taken or planned to 
prevent the recurrence of such malfunction; and
    (vii) The steps that were taken or are being taken to limit excess 
emissions.
    (3) Notify the Regional Administrator verbally within one business 
day of determination that an exceedance of the NAAQS has been measured 
by a monitor operated in accordance with this regulation. The 
notification to the Regional Administrator shall include the time, 
date, and location of the exceedance, and the pollutant and 
concentration of the exceedance. Compliance with this paragraph 
(f)(3)(v) shall not excuse or otherwise constitute a defense to any 
violations of this section or of any law or regulation which such 
excess emissions or malfunction may cause. The verbal notification 
shall be followed within fifteen (15) days by a letter containing the 
following information:
    (i) The time, date, and location of the exceedance;
    (ii) The pollutant and concentration of the exceedance;
    (iii) The meteorological conditions existing 24 hours prior to and 
during the exceedance;
    (iv) For a particulate matter exceedance, the 6-minute average 
opacity monitoring data greater than 20% for the 24 hours prior to and 
during the exceedance; and
    (v) Proposed plant changes such as operation or maintenance, if 
any, to prevent future exceedances.
    (4) Submit quarterly excess emissions reports for sulfur dioxide 
and opacity as recorded by CEMS and COMS together with a CEMS data 
assessment report to the Regional Administrator no later than 30 days 
after each calendar quarter. The owner or operator shall complete the 
excess emissions reports according to the procedures in 40 CFR 60.7(c) 
and (d) and include the Cylinder Gas Audit. Excess opacity due to 
condensed water vapor in the stack does not constitute a reportable 
exceedance; however, the length of time during which water vapor 
interfered with COMs readings should be summarized in the 40 CFR 60.7 
(c) report.
    (g) Compliance Certifications. Notwithstanding any other provision 
in this implementation plan, the owner or operator may use any credible 
evidence or information relevant to whether a source would have been in 
compliance with applicable requirements if the appropriate performance 
or compliance test had been performed, for the purpose of submitting 
compliance certifications.
    (h) Equipment Operations. The owner or operator shall operate all 
equipment or systems needed to comply with this section in accordance 
with 40 CFR 60.11(d) and consistent with good engineering practices to 
keep emissions at or below the emissions limitations in this section, 
and following outages of any control equipment or systems the control 
equipment or system will be returned to full operation as expeditiously 
as practicable.
    (i) Enforcement. (1) Notwithstanding any other provision in this 
implementation plan, any credible evidence or information relevant to 
whether a source would have been in compliance with applicable 
requirements if the appropriate performance or compliance test had been 
performed, can be used to establish whether or not a person has 
violated or is in violation of any standard in the plan.
    (2) During periods of start-up and shutdown the otherwise 
applicable emission limits or requirements for opacity and particulate 
matter shall not apply provided that: (i) At all times the facility is 
operated in a manner consistent with good practice for minimizing 
emissions, and the owner or operator uses best efforts regarding 
planning, design, and operating procedures to meet the otherwise 
applicable emission limit;
    (ii) The frequency and duration of operation in start-up or 
shutdown mode are minimized to the maximum extent practicable; and
    (iii) The owner or operator's actions during start-up and shutdown 
periods are documented by properly signed, contemporaneous operating 
logs, or other relevant evidence.
    (3) Emissions in excess of the level of the applicable emission 
limit or requirement that occur due to a malfunction shall constitute a 
violation of the applicable emission limit. However, it shall be an 
affirmative defense in an enforcement action seeking penalties if the 
owner or operator has met with all of the following conditions:
    (i) The malfunction was the result of a sudden and unavoidable 
failure of process or air pollution control equipment and did not 
result from inadequate design or construction of the process or air 
pollution control equipment;
    (ii) The malfunction did not result from operator error or neglect, 
or from improper operation or maintenance procedures;
    (iii) The excess emissions were not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance;
    (iv) Steps were immediately taken to correct conditions leading to 
the malfunction, and the amount and duration of the excess emissions 
caused by the malfunction were minimized to the maximum extent 
practicable;
    (v) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality;

[[Page 10182]]

    (vi) All emissions monitoring systems were kept in operation if at 
all possible; and
    (vii) The owner or operator's actions in response to the excess 
emissions were documented by properly signed, contemporaneous operating 
logs, or other relevant evidence.

[FR Doc. 2010-4542 Filed 3-4-10; 8:45 am]
BILLING CODE 6560-50-P
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