continuous operation below 0.05 lbs/MMBtu. We believe this data
demonstrates that similar coal fired units that have been retrofitted
with SCRs are capable of achieving NOX emission limits of
0.05 lbs/MMBtu on a continuous basis.
    In addition, it is important to note that most of the
NOX CEMS data in the CAMD database is generated under cap
and trade programs, such as the Acid Rain Program, Clean Air Interstate
Rule (CAIR), and the NOX SIP Call or to comply with elevated
permit limits, such as from netting out of NSR review. Therefore, these
reporting units are not subject to regulatory requirements that compel
the continuous operation of SCRs to achieve best available
NOX reductions. Consequently, a simple examination of the
raw data will not always by itself reveal the NOX reduction
these limits are capable of achieving.
    This is demonstrated by the Parish units in Texas, which are likely
the best performing SCR units over the long term. The units operate to
maintain a system wide cap, rather than to meet unit by unit limits.
The Parish results may not, therefore, reflect the maximum capacity of
the SCRs to reduce the plants' NOX emissions. The Parish SCR
acceptance tests indicate that they can operate at design levels, or
0.03 lb/MMBtu. This is evidenced by examination of an excerpt from the
hourly NOX data for Parish Unit 8, which typically operates
at a 30-day rolling average of about 0.044 lb/MMBtu and was run for
extended periods at 0.03 lb/MMBtu from August 5, 2006 to September 20,
2009 and then at 0.035 lb/MMBtu from September 21, 2006 to December 1,
2006 to demonstrate its capability.\50\ In other words, lower
NOX emissions are achievable from the existing fleet of SCR-
equipped units than are reflected by a simple examination of the CAMD
data.
---------------------------------------------------------------------------

    \50\ We examine this data excerpt in detail in our Complete
Response to Comments document.
---------------------------------------------------------------------------

    Comment: A commenter states that while the proposed NOX
limit of 0.05 lbs/MMBtu as BART for SJGS would significantly reduce
NOX emissions from the SJGS and have a positive impact on
visibility and public health, a lower NOX limit of 0.035
lbs/MMBtu is not only technically feasible, but legally-required for
SJGS under the CAA. The commenter points to our proposal language that
the State of New Mexico ``noted the potential for greater control rates
as low as 0.03 lbs/MMBtu'' for SJGS. This commenter references our TSD
for the proposed FIP, that SCR technologies ``are routinely designed
and have routinely achieved a NOX control efficiency of
90%.'' Therefore, assuming a 90% removal efficiency, based on SJGS's
current rate of emissions (under 0.30 lbs/MMBtu), the commenter
concludes modern SCR technology would bring controlled emissions down
to 0.03 lbs/MMBtu. The commenter proposed an emission limit of 0.035
lbs/MMBtu, based on a report performed by its own contractor. This
report includes vendor guarantees for 90% controls, and presents
information that an emission limit of 0.035 lbs/MMBtu is being achieved
at other units. The commenter further states that we must present
specific circumstances to preclude the application of this emission
limit. Lastly, the commenter makes a case that, the feasibility of a
lower NOX emission limit aside, the additional costs
associated with achieving such a limit, weighed against the additional
mass of NOX that would be removed, make such a limit cost
effective.
    Response: We have reviewed the information presented in the
commenter's contractor's report. As we discuss elsewhere in our
response to comments, we agree there are SCR retrofits that are meeting
NOX emission limits below 0.05 lbs/MMBtu. Our analysis also
indicates there are a few SCR retrofits that have demonstrated the
ability to do this on the basis of a 30 day BOD average. The
commenter's contractor has presented monthly emission data for a number
of units which appear to indicate that some are occasionally able to
meet monthly emission limits below 0.05 lbs/MMBtu. The Havana 9 unit is
particularly highlighted, which appears to indicate that unit has even
met such a limit for perhaps 4-5 months at a time. However, in our
view, we conclude this is not enough time to demonstrate that the units
of the SJGS are able to meet a NOX limit of 0.035 lbs/MMBtu
on the basis of a 30 day rolling average year round.
    We further agree that it may be technically feasible, considering
both vendor performance guarantees, and the data discussed above, for
some SCR retrofits to reliably meet an NOX limit of 0.035
lbs/MMBtu on a 30 day rolling average (especially if figured on the
basis of a BOD). However, we see no data, presented either by the
commenter or from our own research,\51\ which we have discussed
elsewhere in our response to comments, which would lead us to conclude
that such a limit has been sufficiently demonstrated in practice.
---------------------------------------------------------------------------

    \51\ Exhibit 2, 30 Day Rolling Averages for Selected Best
Performing SCR Retrofit Installations.
---------------------------------------------------------------------------

    To our knowledge, there are no air permits in the U.S. that require
that a NOX emission limit of 0.035 lbs/MMBtu be met for a
coal-fired unit such as SJGS with retrofitted SCRs on the basis of a 30
day rolling average. Furthermore, the existence of a permit limit is
not the only indicator of the technical feasibility of achieving a
particular emission limit. However, its absence, combined with no
documented instance of an SCR retrofit achieving this level of control
on a continuous basis, causes us to conclude that a 30 day rolling
average NOX emission limit of 0.035 lbs/MMBtu for the units
of the SJGS is not BART.
    Comment: The NPS and the USFS separately stated they believe PNM
has underestimated the ability of SCR to reduce emissions. For example,
the NPS states that B&V assumed that SCR could achieve 0.05 lbs/MMBtu
(annual average) when evaluating retrofitting of SCR at the Craig power
plant in Colorado. Both the NPS and the USFS stated that EPA's Clean
Air Markets data, and vendor guarantees show that SCR can typically
meet 0.05 lb/MMBtu (or lower) on an annual average basis. The USFS
stated NOX emissions can be reduced by 90% with SCR
installed at 0.05 lbs/MMBtu emission limit. The NPS included data it
claims indicates

that SCR can achieve year-round emissions of 0.05 lbs/MMBtu or lower at
26 coal-fired EGUs, eleven of which are dry-bottom, wall-fired units
like SJGS. The USFS also referenced this data. The NPS believes PNM has
not provided any documentation or justification to support the higher
values used in its analyses. They also present information from
industry sources that supports their understanding that SCR can achieve
90% reduction and reduce emissions to 0.05 lb/MMBtu or lower on coal-
fired boilers.
    Response: We agree with the NPS that PNM has underestimated the
ability of SCR to reduce emissions. As discussed elsewhere in our
response to comments, we are requiring that the units of the SJGS meet
an emission limit of 0.05 lbs/MMBtu on the basis of a 30 day rolling
BOD average.
    Comment: PNM requested that we reevaluate the cost effectiveness of
SCRs at SJGS because they feel that our proposed NOX
emission limit of 0.05 lbs/MMBtu on the basis of a 30 day rolling
average is not achievable. They reason that we therefore overestimated
the emission reductions that the SCRs would achieve, thus
underestimating the cost per ton of pollutant removed. In addition,
they requested we reevaluate the visibility improvement that it assumed
the SCRs would provide. They reason that at a higher NOX
emission limit, the SCRs would not achieve nearly the level of
visibility improvement that we expect.
    Response: As explained elsewhere in our response to comments, we
believe the units of the SJGS can achieve a NOX emission
limit of 0.05 lbs/MMBtu on the basis of a 30 day BOD average.
Therefore, we do not believe there is any need to revise either the
visibility modeling or the cost analysis on that basis.
    Comment: The USFS feels that PNM has underestimated the achievable
emission limit that would result with Low-NOX burners with
overfire air, combined with SCR. Based on data from EPA's Clean Air
Markets, SCR usually meets an annual average emission limit of 0.05
lbs/MMBtu or lower. Based on the same data, 26 electric generating
units have met this emission limit, eleven of which are similar in
design as the SJGS. NOX emissions can be reduced by 90% with
SCR installed at 0.05 lbs/MMBtu emission limit. Given the SJGS's size
and amount of NOX emissions, a more stringent emission limit
than PNM's proposal is not only achievable, but it will provide for
greater reduction in NOX emissions.
    Response: We agree with the USFS that PNM has underestimated the
emissions reductions achievable with the addition of SCR. However, we
draw a distinction between units that have met an emission limit of
0.05 lbs/MMBtu and those that have reliably demonstrated the ability to
continuously meet that emission limit. Therefore, although we agree
there are many SCR installations that are capable of meeting an annual
NOX emission limit of 0.05 lbs/MMBtu, we extended our
analysis. As we discuss elsewhere in our response to comments, we also
analyzed the ability of some of the better controlled SCR retrofits to
meet this same limit on a 30 BOD average and found that it was feasible
for the SJGS to do so.
    Comment: EPA proposes to require the SJGS to meet a NOX
emission limit of 0.05 lbs/MMBtu individually at each of the plant's
four units. EPA's own BART rules, however, expressly authorize
application of BART emission limits on a plant wide basis, and the
proposal offers no justification for deviating from that established
and reasonable practice. Because it makes no difference, in terms of
visibility impact or visibility improvement, as to which unit or units
within a facility the emissions--or the emission reductions--occur at,
there is no rational basis for the Agency to preclude the plant wide
averaging that is contemplated in EPA's own BART rules.
    Response: The commenter correctly notes that the BART Guidelines
state that the BART determining authority ``should consider allowing
sources to `average' emissions across any set of BART-eligible emission
units within a fenceline, so long as the emission reductions from each
pollutant being controlled for BART would be equal to those reductions
that would be obtained by simply controlling each of the BART-eligible
units that constitute BART-eligible source.'' \52\
---------------------------------------------------------------------------

    \52\ 70 FR, 39104, 39172.
---------------------------------------------------------------------------

    As we discuss elsewhere in our response to comments, we received
another comment requesting that we revise our proposed NOX
BART limit, which was calculated on the basis of a rolling 30 day
calendar average, and adopt instead a limit calculated on the basis of
a rolling 30 day BOD average. We agree, and are finalizing our action
in accordance with that request. Combining a plant wide average with a
BOD average in which individual units may be on different 30 day
periods, adds an additional level of complexity to the calculation of a
plant wide average. We believe it is possible to integrate the 30 day
BOD and plant wide averaging concepts, but due to our consent decree
deadline, we do not have the time to construct the algorithm that could
be used to guarantee practical enforceability. Therefore, as we discuss
elsewhere in our response to comments, we condition the NOX
limit for the units of the SJGS on the basis of a rolling 30 day BOD
average. We leave the issue of a plant wide average to a possible
future SIP revision that includes a verifiable, workable and
enforceable algorithm that ensures the resulting emissions are equal to
those reductions that would be obtained by simply controlling each of
the BART-eligible units that constitute BART-eligible source.
    Comment: One commenter requested we exclude emissions occurring
during startup, shutdown, and malfunctions events from having to comply
with our proposed NOX limit of 0.05 lbs/MMBtu because post-
combustion controls equipment such as SCRs cannot operate effectively
during those events. Alternatively, this commenter requested we
consider setting a different standard that is more representative of
the emission characteristics of the units during those events or
consider requiring work practice standards to minimize such emissions.
Another commenter requested that we specifically include startups and
shutdowns in this language, making clear that any emission in excess of
an applicable emission limit during any such event constitutes a
violation of the applicable emission limit. That commenter also
requested that we clarify that this provision applies to all pollutants
controlled by this FIP, including, NOX, SO2,
H2SO4, ammonia, and particulate matter (PM).
    Response: As we have discussed in our response to other comments,
we are changing the rolling averaging period for our proposed
NOX emission limit of 0.05 lbs/MMBtu from one based on 30
calendar days, to one based on a 30 BODs. The CEMS data indicate that
our proposed NOX BART limit can be achieved without
separately limiting startups, shutdowns, and malfunctions. Further, the
startup, shutdown, and malfunction events cited in this comment are a
characteristic of current SCR operating modes, i.e., under trading
programs with no incentive to optimize design and operation to achieve
a permit limit. These spikes result when flue gas temperatures fall
below the operating temperature range of the SCR catalyst, or when the
ammonia injection system malfunctions. We believe that startup and
shutdown spikes are minimized by using the BOD metric, which we assume
was why it was requested that we employ it. As there is no explicit
provision for the exclusion

of start up, shut down, or malfunction events for NOX,
SO2, and H2SO4, all data will be used
in determining compliance with this limit. As explained elsewhere in
our response to comments, we are not setting an emission for PM for the
units of the SJGS at this time, and we have determined that neither an
ammonia limit, nor ammonia monitoring is warranted. We do not see a
need to further clarify that the limits we are finalizing must be
continuously met.
    We also agree with the comment that work practice standards should
be developed and used to minimize such emissions. These should include
proactive measures such as SCR reactor preheating during a cold start;
selecting catalyst to maximize ramp rates and NOX reduction
at low temperatures; and use of both tunable ammonia injection grids
(AIGs) and static mixers. We encourage PNM to develop and employ those
measures.
    Comment: PNM contends our conclusions differ greatly from those
that have been made in other states in determining NOX BART
for other electric generating units. PNM submitted a table of the other
NOX BART determinations that have been made by 13 different
states as they have developed the proposed RH SIPs that are awaiting
EPA approval. PNM stated that in comparison to the determinations made
by every other state, the EPA proposal concludes that SJGS must be
required to install, (i) the most effective SCR in the nation, (ii) at
the cheapest price, and (iii) in the shortest amount of time. PNM
concludes that if our proposal is a true indication of our
interpretation of the RH program, we will be faced with disapproving
every other state RH implementation plan in the country and replacing
those plans with FIPs.
    Response: As explained in our responses to other comments, we have
made adjustments in our NOX BART determination for the SJGS
that pertain to this comment. We have adjusted our cost basis for the
installation of SCR on the units of the SJGS, which slightly increased
the cost of the controls versus the tonnage of NOX removed.
In addition, we have modified the schedule for compliance with the
emission limits to now require compliance within 5 years--rather than 3
years--from the effective date of our final rule. Also discussed in our
responses to other comments, although we find that our proposed
NOX BART emission limit should remain at 0.05 lbs/MMBtu, we
have modified the averaging time from a straight 30 day calendar
rolling average, to a 30 day BOD average.
    We disagree with the statement that our conclusions regarding
NOX BART for the SJGS are far different from those that have
been made in other states in determining NOX BART for other
electric generating units. As the commenter's own table indicates,
other states and EPA regions have made NOX BART
determinations that will be met or are proposed to be met with the
addition of SCR, including the Four Corners Power Plant (EPA Region 9),
Hayden Units 1 & 2 (CO), Otter Tail Big Stone 1 (although this is a
cyclone boiler) (SD), and Naughton Unit 2.
    Also, we initially note two points regarding the costs of the
controls, while accepting the values listed on the chart at face value.
First, the cost effectiveness of all the BART controls, which depending
on the facility range from combustion (e.g., OFA, LNB) to post
combustion (e.g., SCR, SNCR), are frequently much worse (more
expensive) than the cost effectiveness we calculated for SCR on the
units of the SJGS. Second, the cost effectiveness values listed for
SCR, are frequently similar to the cost effectiveness we calculated for
SCR on the units of the SJGS (especially if compared to our revised
cost effectiveness).
    Lastly, although we strive to ensure that the regulated community
is treated equitably with regard to the RHR, the nature of the BART
five factor analysis is designed to consider site-specific issues. For
instance, we note that the chart does not contain any information, nor
is any presented elsewhere, concerning a visibility impact analysis. As
required by the BART Guidelines, this must be included in a BART
analysis.\53\ Without such an analysis, there is no way to justify any
control even if it has a very low cost. Conversely, even controls that
have either a relatively high capital cost or cost effectiveness in
terms of dollars per ton may be justified if they result in a
significant visibility benefit. In the case of the SJGS, our BART FIP
NOX emission limit of 0.05 lbs/MMBtu is predicted to result
in a combined visibility improvement on 16 Class I areas of 21.69 dv,
which we consider very significant.
---------------------------------------------------------------------------

    \53\ 70 FR 39104, 39163.
---------------------------------------------------------------------------

C. Comments on Our Proposed SO2 Emission Limit

    Comment: One commenter stated an SO2 emission rate of
0.15 lbs/MMBtu on a 30 day rolling average is not appropriate and does
not ensure that SO2 emissions from SJGS will not interfere
with visibility in New Mexico or other states. This commenter believes
an SO2 emission rate of 0.15 lbs/MMBtu does not reflect the
level of emissions reductions achievable under BART for wet limestone
scrubbers. This commenter also points out that the units of the SJGS
are all currently achieving SO2 limits significantly under
0.15 lbs/MMBtu on a 30 day rolling average and concludes we should not
set SO2 emission rates in a Section 110 FIP that exceed the
historic SO2 emission rates at SJGS. The commenter requests
that if we do set a non-BART SO2 limit in our Section 110
FIP, we set unit-specific limits at least consistent with the recent
historic SO2 emission identified in the table above, or
issue formal SO2.BART determinations for each unit at SJGS
under a Section 308 FIP.
    Response: We believe the SO2 emission rate of 0.15 lbs/
MMBtu is appropriate to meet the requirements of section
110(a)(2)(D)(i)(II) to ensure that these emissions from SJGS will not
interfere with visibility in other states. As discussed in our
proposal, we believe that emissions reductions consistent with the
assumptions used in the WRAP modeling will ensure that emissions from
New Mexico sources do not interfere with the measures designed to
protect visibility in other states. We are aware that the
SO2 controls currently installed on the SJGS are in fact
achieving greater control than would be evidenced by an emission limit
of 0.15 lbs/MMBtu. The commenter's observation of the SJGS's current
SO2 emissions simply means that the SO2 emissions
from the SJGS are better controlled than what we require to prevent
interference with visibility under section 110(a)(2)(D)(i)(II). We
agree with the commenter that the 0.15 lbs/MMBtu emission limit does
not reflect the level of emissions reductions achievable through the
use of a wet limestone scrubber and that a source specific BART
determination for the SJGS might well result in a determination
requiring the installation of scrubber to meet a more stringent
limitation. We did not propose to address the BART requirements for
SO2 from the SJGS in this action because SJGS will not be
installing new control equipment to meet the 0.15 lbs/MMBtu emission
limits. As a result, the issue of requiring different capital
expenditures to meet the requirements of section 110(a)(2)(D)(i)(II) as
compared to those of the RH program's BART requirement does not arise.
Since we did not propose the SO2 emission rate under the RHR
requirements, the comments concerning BART are outside the scope of
this action.

    Comment: In declining to find that its asserted SO2
limits satisfy BART, EPA's proposal improperly relies on a RH trading
program under 40 CFR 51.309 that does not yet exist. Putting aside
EPA's legal obligation to make a formal BART determination in its
proposed FIP at this time, any emissions trading program that is
proposed to replace a BART limit ``must achieve greater reasonable
progress than would be achieved through the installation and operation
of BART.'' 40 CFR 51.308(e)(2). Because EPA cannot make the required
demonstration that New Mexico's future, theoretical trading program
will be ``better than BART,'' EPA is illegally sidestepping its current
BART obligations under 40 CFR 51.308 (e)(2)(i).
    Response: We disagree with the commenter. In accordance with our
proposal, we are finalizing SO2 limitations under section
110(a)(2)(D)(i)(II), not under the RHR. We disagree with commenter's
view that we are sidestepping our BART obligations by not proposing to
establish SO2 BART emission limits. Our rationale for not
proposing BART requirements for SO2 in this action appears
in our response just prior to this comment. Moreover, we note that the
established SO2 limits do not rely upon a nonexistent
trading program. We will address New Mexico's obligation to address
SO2 under the RHR in a future separate action.

D. Comments on Our Proposed H2SO4 and Ammonia
Emission Limits and Other Pollutants

    Comment: The League of Women Voters, Montezuma County, Colorado
supports the EPA determination that SCR is cost-effective for all units
of the SJGS. They defer to our judgment on the proposed final limit for
sulfuric acid emissions. They request that we choose the lower limit of
2 ppmvd, adjusted to 6 percent oxygen for the regulation of ammonia
emissions. Their justification for this request is the deterioration in
visibility at Class I areas such as Mesa Verde National Park, and the
imperative to achieve improvements in visibility as rapidly as
possible.
    Response: We appreciate the support of the League of Women Voters,
Montezuma County, Colorado. As explained elsewhere, we have determined
that neither an ammonia limit, nor ammonia monitoring is warranted.
    Comment: One commenter stated the same pollutants, including PM
2.5, NOX, and VOCs (contributing to ground level ozone) that
contribute to visibility impairment also harm public health. This
commenter also noted that ozone concentrations in parks in the Four
Corners region approach the current health standards, and likely
violate anticipated lower standards. In fact, ozone levels in many
parts of New Mexico, Colorado, and Utah are already in the range of
ozone levels deemed to be harmful to human health.
    Response: We agree that the same pollutants that contribute to
visibility impairment can also harm public health. Although we note
public health benefits, we did not rely on these benefits in
establishing controls necessary to meet BART in today's action.
    Comment: One commenter expressed support for our proposed
H2SO4 and ammonia limits proposal for the SJGS,
and the corresponding installation of CEMS. That commenter also urged
us to set the H2SO4 emission rate at the lowest
rate of 1.06 x 10-\4\ lb/MMBtu for each unit at the SJGS,
suggesting stack test monitoring for H2SO4 on a
more frequent basis than annual monitoring. The commenter also
supported our proposed ammonia emission limit at the lower range of 2.0
ppm, with CEMS. Further, this commenter requested we clarify these
emission limits are required under the RH program as part of a BART
determination for the facility and must be complied with within 3 years
of the date of the final rule. Lastly, we were requested to set a BART
PM emission limit of 0.012 lb/MMBtu on a 6-hour block average, and a
10% opacity limit at each unit at SJGS, also within 3 years of the date
of the final rule.
    Another commenter questioned our authority to regulate ammonia
through the RH rule.
    Response:
    In our response to comments on the assumed ammonia slip level used
to estimate sulfuric acid emissions, we have recalculated the expected
sulfuric acid emissions rate with no ammonia slip. The sulfuric acid
emission rate was recalculated to be 2.6 x10-\4\ lb/MMBtu
based on an ammonia slip value of 0 ppm, compared to our original value
of 1.06 x10-\4\ lb/MMBtu at 2ppm ammonia slip. The actual
ammonia slip will vary over the life of a catalyst layer. We conclude
an assumption of ammonia slip up to 2.0 ppm as the catalyst ages is
reasonable for an SCR system that is designed to achieve a
NOX emission limit of 0.05 lbs/MMBtu on a rolling 30 BOD
basis, considering the coal the SJGS burns. We also note PNM assumed an
ammonia slip of 2.0 ppm in its SCR cost estimation. As the ammonia slip
increases, the sulfuric acid emissions will decrease. This revised
sulfuric acid emission rate remains significantly lower than that
estimated by NMED and is a minimal level of sulfuric acid emissions.
Based on these updated calculations and in response to comments, we are
requiring the SJGS to meet an H2SO4 emission
limit of 2.6 x10-\4\ lb/MMBtu.
    Our intention in our proposal regarding the regulation and
monitoring of ammonia was, like H2SO4, to
minimize the contribution of this compound to visibility impairment.
After careful consideration of the comments we received concerning our
proposal to require the SJGS to meet an hourly average emission limit
of 2.0 parts ppmvd for ammonia, we have determined that neither an
ammonia limit, nor ammonia monitoring is appropriate. Instead, we will
approach the issue of the impact of ammonia slip on visibility
impairment though proper upfront design, rather than after-the-fact
regulation. We are requiring that the NO control device
(presumably, but not required to be SCR) must be designed to achieve a
NOX emission limit of 0.05 lbs/MMBtu on a rolling 30 BOD
basis with an ammonia slip of 2.0 ppm. We believe this strikes the
proper balance between the additional cost of ammonia monitoring and
reporting and the need to have a reasonable expectation of the amount
of ammonia emitted by the SJGS.
    The H2SO4 emission limit is being required
under the RH program as part of a BART determination for the SJGS and
must be complied with at the same time as the NOx limits for each unit.
With regard to the commenter's request that if emission monitors are
truly unavailable for this pollutant, we should require stack test
monitoring for H2SO4 on a more frequent basis
than annual monitoring, we do not believe that an adequate continuous
emissions monitor is available for H2SO4 and will
continue to rely on stack testing. We do not agree that more frequent
stack testing is appropriate, due to a consideration of the cost of
that testing in comparison to the value of having a greater certainty
of the H2SO4 emissions that may result. As we
discussed in our proposal,\54\ we have concluded that the low sulfur
coal burned at the SJGS generates very little sulfur trioxide
(SO3), and hence H2SO4, which is
formed when SO3 combines with water in the flue gas to form
H2SO4. In addition, SCR catalysts are available
with a low SO2 to SO3 conversion of 0.5%, further limiting
the production of H2SO4. Therefore, we conclude
we have struck the right balance.
---------------------------------------------------------------------------

    \54\ 76 FR 499.

---------------------------------------------------------------------------

E. Comments on the Emission Limit Compliance Schedule

    Comment: We received a number of comments both for and against our
proposal to require compliance with our proposed emission limits within
three years following the effective date of our final action. The
League of Women Voters, Montezuma County, Colorado opposed extending
the deadline to five years for achieving the proposed emission limits.
They stated SCR was first patented in the U.S. in 1957 and has been an
operational pollution control technology for over 30 years at large
scale facilities like the SJGS. They believe allowing an extra two
years may provide the opportunity for ambiguity and technological
changes to enter into arguments about engineering solutions and
controls, which potentially could feed appeals and litigation by the
operator of the SJGS, and thus delay cleanup efforts. The Navajo Nation
expressed concern that the proposed compliance schedule is too
stringent for SJGS to reasonably meet and could result in a reduction-
in-force of a significant number of employees, including Navajo
workers, thereby contributing to family hardships and limiting the
ability of affected employees, contractors, and subcontractors to meet
their financial obligations.
    Another commenter asked if there is a smarter way to phase the
installation of controls over a longer period of time.
    Another commenter stated any proposed truncation of the five-year
compliance period should be persuasively justified by a specific
analysis of the feasibility and cost-effectiveness of such a schedule
in light of the circumstances at the facility in question. According to
the commenter, no such justification appears in the proposed rule. The
proposal simply asserts that a three year compliance deadline would be
applicable because similar compliance schedules have been met at some
other facilities.
    Another commenter stated that a compliance deadline of three years
will result in significant additional costs that we did not account for
in our analysis. They stated the proposed FIP attempts to justify a
three-year compliance deadline by citing two studies, but those studies
do not reflect a realistic schedule for installing SCRs at SJGS. This
commenter made several points concerning two studies on SCR timelines
we cited in our proposal that the commenter feels call our use of the
information into question. The commenter then cites another report it
believes is more representative and concludes the site congestion and
other site-specific challenges at SJGS will demand an implementation
schedule that is similar to SCR installations at Units 6 and 7 of First
Energy's Sammis facility, which required 60 and 62 months to complete,
respectively.
    Response: We have decided, based on our review of several comments,
to finalize a schedule for compliance with the emission limits of 5
years--rather than 3 years--from the effective date of our final rule.
We view the B&V cost analysis as being a very preliminary, low-level
estimate, that is missing much of the information required to develop a
site-specific schedule. This estimate does not include, for example,
plot plans, a diagram showing SCR layout, an analysis of
constructability, construction site plan, or an implementation
schedule, which are required to develop a site-specific schedule. Thus,
we selected an average compliance time, based on a review of a number
of sources, including the following:
     13 months for 675 MW Somerset Station;
     18 months for Harding Street;
     19 months for two 900 MW units at Keystone.
     26 months for Asheville Power Station with a reported
normal range of 27 to 30 months.
     30 months for 4 units based on 21 months typical for 1
unit, each additional unit at same facility adds 2-3 months. Findings
for typical installations.\55\
---------------------------------------------------------------------------

    \55\ ClearSkies: http://www.epa.gov/clearskies/03technical_package_sectiong.pdf.
---------------------------------------------------------------------------

     36 months for St John River Power Park, from contract
award to startup.
     42 months for 14 SCRs installed to comply with the Texas
Nonattainment SIP.
     60 months estimated by B&V for 5 units at Four Corners.
     69 months estimated by Sargent & Lundy for 3 units at
Navajo.
    The median of these estimates is 33 months and the average is 37
months. The UARG report \56\ cited in this comment was published around
the same time (October 1, 2010) that we did most of our SCR analysis
and was unknown to us at that time. PNM and B&V did not identify it in
discussions with us in October-November 2010. That report confirms the
information we found through independent investigation, summarized
above. It indicates that it took 28 to 62 months to design and install
the 14 SCRs in its sample (compared to 18-69 months for the 9
facilities (greater than 33 units) in our sample). The average design/
build time for the units in the report is 43 months, compared to an
average of 37 months for our retrofit SCR timeframes. None of the units
in these two collections overlap. We agree, based on the information we
have from the site, that site congestion will require a longer total
installation time for all four units than the average found in both of
these collections. Please see our Complete Response to Comments for NM
Regional Haze/Visibility Transport FIP document for more detail
concerning our response to this question.
---------------------------------------------------------------------------

    \56\ ``Implementation Schedule for Selective Catalytic Reduction
(SCR) and Flue Gas Desulfurization (FGD) Process Equipment'' October
1, 2010, prepared by J. Edward Cichanowicz for the Utility Air
Regulatory Group.
---------------------------------------------------------------------------

    However, we do not believe there is a basis in the record for
concluding that installation of SCRs would require a timeframe as long
as claimed for Sammis Units 6 and 7. The seven Sammis units were
subject to an enforcement action,\57\ and the SCRs were installed
pursuant to a Consent Decree.\58\ The Consent Decree allowed 5+ years,
from the date of the Decree in March 2005, to install SCR on two units,
SNCR on five units, low NOX burners, and new SO2
scrubbers on seven units. Construction was completed faster than the
Consent Decree schedule, however, and all of the controls were
operating by May 2010.
---------------------------------------------------------------------------

    \57\ U.S., et al., v. Ohio Edison Company, et al., Opinion and
Order, Case No. 2:99-CV-1181, In the U.S. District Court for the
Southern District of Ohio, Eastern Division, available at: http://www.4cleanair.org/OhioEdison.pdf.
    \58\ U.S. v. Ohio Edison and Pennsylvania Power Company, Consent
Decree, March 18, 2005, available at: http://www.epa.gov/compliance/resources/decrees/civil/caa/ohioedison-cd.pdf.
---------------------------------------------------------------------------

    The Sammis retrofit project at this 2,200 MW plant is generally
recognized as the largest air quality control retrofit in the history
of the United States and is considered to be ``the most difficult in
the country because of the extremely limited space for installation of
the new air emission control equipment and systems.''\59\ This project
is not comparable to SCR retrofits at SJGS, neither in scope, nor
complexity, nor site congestion.
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    \59\ Michael D. McElwain, Sammis Energy Plant Project Wins
Award, Herald-Star, December 13, 2010, available at: http://www.hsconnect.com/page/content.detail/id/552039/Sammis-energy-plant-project-wins-award.html?nav=5010.
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    Based on an examination of site conditions and available data on
historical SCR installation timeframes as described above, we find that
a change to our proposed compliance schedule is appropriate. We believe
that a longer time frame than the median time frame for construction
identified in our survey of SCR retrofits is justified due to site

congestion. We do not believe a timeframe as long as that allowed for
the Sammis units is warranted, nor is it allowed by the RHR.
Consequently, we are finalizing a schedule which requires compliance
with the emission limits within 5 years--rather than 3 years--from the
effective date of our final rule.
    Comment: A commenter objected to the proposed compliance schedule
of 3 years and was concerned that SCR installations often trigger PSD
permitting requirements because they constitute physical changes to an
existing emission unit that may result in increased emissions of
sulfuric acid mist. The commenter stated that obtaining a PSD permit
for an SCR can take up to 18 months or more and even if the SCRs do not
trigger PSD permitting requirements projects could still trigger state
permitting requirements, which can require several months to satisfy.
The commenter further stated that the installation of an SCR will
involve a significant capital expenditure that will require approval
from the New Mexico Public Regulation Commission. The commenter alleged
that we failed to take these requirements into account resulting in an
unachievable deadline for compliance.
    Response: As stated elsewhere in our response to comments, we have
modified the compliance schedule. We are finalizing a schedule which
requires compliance with the emission limits within 5 years--rather
than 3 years--from the effective date of our final rule. We conclude
this is adequate time for the inclusion of any possible permitting
requirements.
    Comment: A commenter stated that our compliance schedule of three
years from the effective date of our final rule did not allow time for
competitive bidding. To meet a three-year schedule, the commenter
argued, PNM would have to simply offer the work to a single vendor,
eliminating the opportunity to identify other qualified vendors or
provide any incentive to encourage competitive pricing. Therefore, the
failure to account for this renders the three-year compliance date
unrealistic, and calls into question the underlying cost estimates,
which are based on contracts entered into by other utilities that most
likely were allowed sufficient time to complete a proper competitive
bidding process.
    Response: We believe this comment is incorrect. The 3 year schedule
we proposed did include time to prequalify bidders. However, as stated
elsewhere in our response to comments, we have extended the compliance
schedule to 5 years.
    Comment: A commenter stated that our cost estimate does not appear
to account for the need to have two units offline at the same time to
install the SCRs, and the commenter expresses the view that PNM would
not be able to meet a three-year deadline for compliance without taking
two units offline at once. The commenter listed a number of things that
would have to occur in the construction process, such as engineering,
vendor procurement, and catalysts procurement, and finally, the fact
that construction on each unit needs to take place during an outage. In
addition, the commenter argues, a three-year deadline would likely
eliminate the ability of PNM to plan the outages for off-peak seasons,
when the demand for power and the cost for replacement power are lower.
Also, a three-year period would require PNM to prefabricate as much of
the SCRs as possible, which would require extremely large
prefabrication yards and prefabrication crews, significant overtime
hours, expedited material costs, double ``heavy long-lift'' crane
costs, and a larger construction workforce overall. The commenter
states these costs were not included in its analysis. The commenter
lists other complications such as a shortage of skilled labor, air
permitting requirements, and other pre-construction activities, the
possible need to purchase electricity at higher prices, and strain on
PNM's other generating assets. The commenter requests we consider these
costs and constraints in its setting a three- to five-year, compliance
schedule and set the deadline for compliance to the five years allowed
by law, or even longer if PNM is required to respond with a ``Better
than BART Alternative.''
    Response: As stated elsewhere in our response to comments, we have
modified the compliance schedule. We find that compliance with the
emission limits must be within 5 years of the effective date of our
final rule. A longer schedule will allow PNM to tie in the SCRs during
routinely scheduled maintenance outages and to plan outages for off-
peak seasons. We have not received any request from PNM that we
consider a ``better than BART alternative.''

F. Comments on the Conversion of the SJGS to a Coal-to-Liquids Plant
With Carbon Capture as a Means of Satisfying BART

    We received comments encouraging us to consider coal-to-liquids
(CTL) technology with integrated power generation as an option in
determining BART for SJGS. The commenter states that our BART
determination proposal would reduce NOX emissions, but would
do little to reduce SOX or carbon dioxide (CO2)
emissions, leaving SJGS far from compliance with new or future
standards. The commenter states our BART proposal could cost $750
million or more (based on PNM's figures), and would have an adverse
effect on the cost of electricity. Based on 2006-generation numbers of
12.5 million MWh's, amortized over a 20-year period at 8% interest, and
a $750 million modification price, the commenter calculates the cost of
electricity would increase by approximately $6 per MWh or 0.6 cents per
kWh.
    The commenter states that although natural gas fired combined
cycle, and integrated gasification combined cycle, have merit no option
offers more benefits than a CTL plant with integrated power generation.
According to the commenter, the synthetic fuels produced are drop-in
replacements for diesel and jet fuel, and contain virtually no sulfur.
The US military has conducted extensive tests on these fuels, and finds
that they produce far lower emissions than conventional petroleum-based
fuels.
    According to the commenter, the conversion of the SJGS into a CTL
plant with integrated power generation would retain jobs in the mining
and plant operations, will create ultra-clean biodegradable synthetic
fuels in the CTL process, and will use the waste heat and byproduct
gases from the process to cogenerate electric power. The commenter
states that emissions of criteria pollutants from the CTL plant
manufactured by his company approach those of a NGCC plant and
emissions of CO2 are half those of a NGCC plant.
    The commenter calculates that a 50,000 barrel per day CTL plant can
co-produces 1200 MW of clean, efficient, low carbon power. This would
be baseload generation, the commenter argues, that would be produced
24/7 and could be sold into the California marketplace. The size of the
facility could be scaled to meet greater energy needs. The commenter
states a plant of this size would consume approximately 30,000 tons per
day of coal, which is nominally twice as much coal as is currently
consumed, so more jobs will be needed at the mine.
    According to the commenter, NOX emissions would be
reduced by 50 to 1, SOX emissions would be reduced by 20 to
1, and CO2 emissions would be reduced by 5 to 1. The
commenter also notes that ash in the coal is melted in the gasification
process, and can be used as an aggregate for paving roadways. In
addition, the sulfur from the process can

be collected as elemental sulfur, and sold as a byproduct. Water
consumption would be reduced by about \1/2\ in comparison to a
conventional power plant of the same MW output, due to the use of a
hybrid cooling system (air-cooled condenser in conjunction with a
cooling tower).
    The commenter points out that KinderMorgan has an existing
CO2 pipeline in the vicinity. The CO2 from the
plant could be sold to KinderMorgan and used for enhanced oil recovery.
    A plant of this scale, according to the commenter, would cost
approximately $8 billion to construct, assuming all new equipment.
However, this cost could be substantially reduced by re-utilization of
much of the plant, including coal handling equipment, steam turbines,
condensers, cooling towers, and transmission lines. The re-utilization
of existing equipment could reduce the capital cost by an estimated 25
to 35% as compared to a totally new facility. The commenter suggests
this could be a BART (retrofit) solution. The commenter argues the
revenues from this plant would provide a return on investment that
exceeds all other considered options by a wide margin. The commenter
encourages us to consider conversion to a CTL plant with integrated
power generation to be BART for SJGS.
    Response: We appreciate the commenter's suggestion that we consider
CTL technology with integrated power generation as an option in
determining NOX BART for the SJGS. Although we encourage PNM
and the other owners of the SJGS, and the Navajo Nation to examine this
concept in detail, we cannot consider it as a potential NOX
BART technology as it would involve a complete redesign of the plant.
We note the BART guidelines state that ``[w]e do not consider BART as a
requirement to redesign the source when considering available control
alternatives.'' \60\
---------------------------------------------------------------------------

    \60\ 70 FR 39104, 39164.
---------------------------------------------------------------------------

    We agree with the commenter that the NOX BART
determination in our proposal would reduce NOX emissions,
yet would do little to reduce SO2 and CO2
emissions from the SJGS. SO2 emissions under the RHR are
covered by the New Mexico submittal, which we received on July 5, 2011.
We will address the adequacy of that submission in a future action. As
discussed in our proposal, we disagree with PNM's cost estimate for
installing SCR on the four units of the SJGS. Although PNM estimated
the total cost to be in excess of $900 million, we estimated that cost
to be approximately $250 million. As discussed elsewhere in our
response to comments, in light of information provided by commenters,
we have refined our estimate to be $344,542,604. We note that this
estimate, being about one-third that of PNM's, will result in
significantly lower costs being passed on to rate payers than what has
been estimated by PNM.

G. Comments on Health and Ecosystem Benefits, and Other Pollutants

    Comment: Several conservation organizations jointly submitted a
comment letter pointing out that the same pollutants that contribute to
visibility impairment also harm public health and have negative
ecosystem impacts. They note that these same pollutants also harm
terrestrial and aquatic plants and animals, soil health, and moving and
stationary bodies of water by contributing to acid rain, ozone
formation, and nitrogen deposition. Another commenter, a retired
pediatrician, notes that NOX as a precursor to ozone, causes
numerous respiratory problems and adversely affects children in
particular; he supports our action. Another commenter urges us to take
into consideration the health impacts of toxic emissions from the SJGS.
Two commenters state there are high levels of mercury pollution
originating from the SJGS. A commenter also points out that nitrous
oxide (N2O) is a greenhouse gas (GHG) that contributes to
climate change. According to the commenter, PNM has accumulated many
air quality violations, and no amount of money is worth the poisoning
of our air, water, and soil. Another commenter points out that a recent
study of the 2010 health impacts of the SJGS estimated 33 deaths, 50
heart attacks, 600 asthma attacks, and over 30 hospital admissions,
resulting in an estimated $255 million in health care costs in 2010. A
commenter also expresses concern that if EPA lowers the ozone standard
in 2011, La Plata County, CO, would not be attaining the standard.
    Response: We appreciate the commenters' concerns regarding the
negative health impacts of emissions from the SJGS. We agree that the
same PM2.5 emissions that cause visibility impairment can be
inhaled deep into lungs, which can cause respiratory problems,
decreased lung function, aggravated asthma, bronchitis, and premature
death. We also agree that the same NOX emissions that cause
visibility impairment also contribute to the formation of ground-level
ozone, which has been linked with respiratory problems, aggravated
asthma, and even permanent lung damage. We agree that these pollutants
can have negative impacts on plants and ecosystems, damaging plants,
trees, and other vegetation, and reducing forest growth and crop
yields, which could have a negative effect on species diversity in
ecosystems. Therefore, although our action concerns visibility
impairment, we note the potential for significant improvements in human
health and the ecosystem.
    Although we appreciate the commenter's concern regarding the
negative health impacts of toxic emissions from the SJGS, we note that
toxic emissions are not considered to be visibility impairing
pollutants. Similarly, Mercury is not a visibility impairing
pollutant,. N2O--a GHG--does not belong to the
NOX family, nor is it considered a visibility impairing
pollutant.
    Comment: One commenter states that power plants are responsible for
approximately one-quarter of the NOX emitted in the U.S.
each year, and therefore urges us to adopt a plan with stricter
standards to regulate the toxic air emissions from the SJGS to protect
public health, decrease emergency room visits and asthma. According to
the commenter, the SJGS is one of the greatest NOX polluters
in the nation, contributing to the formation of harmful particulate
matter, ground level ozone smog, and acid rain.
    Response: We appreciate the commenters' concerns regarding the
NOX emissions from power plants such as the SJGS. We agree
that these emissions are detrimental to human health and the
environment, with NOX being a precursor to ground-level
ozone and also leading to the formation of acid rain. Although we
appreciate the commenter's encouragement that we adopt even stricter
standards, after considering all the comments we received, as we have
stated elsewhere in this notice, we believe that the standards proposed
in our proposal establish BART and will prevent visibility impairment
from the SJGS.

H. Miscellaneous Comments

    Comment: A commenter stated that it is appropriate and necessary
for us to promulgate a FIP that addresses interstate transport of air
pollutants from New Mexico, pointing out that the SJGS is located a
short distance from several state boundaries. They also state we should
have presented a clearer explanation of the events that have taken
place related to New Mexico's work on the SIP in the 2003-2010
timeframe. The commenter believes including more detail in the
background section of the proposal about the

intermediate actions taken by us and NMED in the given timeframe in
regards to New Mexico's SIP would have added clarity for the public.
    Response: We believe the level of detail we included in the
``Background'' section of our proposal is appropriate and sufficient to
give the public a clear picture of the events leading up to our
proposal. In particular, the subsection titled Statutory and Regulatory
Framework Addressing Interstate Transport and Visibility provides
detailed information to give the public a clear picture of what we
received from New Mexico in terms of the RH SIP and the Interstate
Transport SIP.
    Comment: A commenter is concerned with degradation of visibility in
Mesa Verde National Park over the last decade. The commenter believes
that in the Interstate Transport SIP we received on September 17, 2007,
New Mexico's statement that no sources in New Mexico impact the
protection of visibility in neighboring states seems to be unsupported
by the evidence presented by NMED.
    Response: We note that it appears that the commenter may have a
misconception of what NMED submitted in terms of the Interstate
Transport SIP. As explained in our proposal, we received a SIP from New
Mexico to address the interstate transport provisions of CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5 NAAQS on
September 17, 2007. New Mexico did not state in this Interstate
Transport SIP that no sources in New Mexico impact the protection of
visibility in neighboring states. Instead, New Mexico's Interstate
Transport SIP stated that the requirement under section
110(a)(2)(D)(i)(II) that the state not interfere with the visibility
programs of other states would be addressed by the submittal of a RH
SIP by December 2007. As we state elsewhere in our response to comments
and in our proposal, because New Mexico had not submitted a RH SIP or
an alternative means of demonstrating that emissions from its sources
would not interfere with the visibility programs of other States at the
time of our proposal, we proposed disapproval of the September 17, 2007
SIP, and proposed a FIP to fill that gap. We are now finalizing our
proposed FIP to ensure that emissions from New Mexico do not interfere
with the visibility programs of other States. We received New Mexico's
RH SIP under section 51.309 on July 5, 2011, long after statutory and
regulatory deadlines. We will review that submission, and address it in
a future action.
    Comment: A commenter generally agrees with our proposed
determination that all the air pollution sources in New Mexico are
achieving the emission levels assumed by the WRAP modeling except for
the SJGS, but would like to know what data and modeling supports it.
    Response: We based our conclusion that all sources in New Mexico
are achieving the emission levels assumed by the WRAP in its modeling
except for the SJGS by reviewing the WRAP photochemical modeling
emission projections used in the demonstration of reasonable progress
towards natural visibility conditions and comparing these emission
projections to current emission levels from sources in New Mexico.
    Comment: A commenter stated that there must be balance in the
proposals and regulations that are presented by the federal and state
governments. The commenter indicated that although this is an issue of
visibility, he is sure we have somehow taken health impacts into
consideration in formulating our proposal. The commenter also expressed
his belief that our proposal is counter-productive and has a better
than average potential to harm the local and state economies. The
commenter stated that the technology we are proposing is costly and
seems unnecessary, as PNM recently completed a project that put it in
compliance with all current health requirements, and only considers
visibility in the surrounding national parks and wilderness areas while
ignoring the economic impact to the local community. The commenter
expressed his belief that cost estimates from the private sector tend
to be more accurate than government estimates. The commenter stated
that our proposal calls into question the continued viability of the
SJGS as an asset to the Public Service Company of New Mexico. The
commenter stated that this is not an issue that requires emergency
action, and suggests allowing tomorrow's technology provide a solution
to today's problems.
    Response: We understand the commenter's concern regarding the need
for balance in the regulations promulgated by state and federal
governments. This decision is based on the RH requirements of the CAA.
We have not relied on any potential health impacts in reaching our
decision, although we note the potential for significant improvements
in public health. The SJGS is one of the largest sources of
NOX in the western U.S. and is within 300 kilometers of 16
Class I areas. Finalizing our proposal is necessary to satisfy CAA
requirements, including section 110(a)(2)(D)(i)(II) with respect to
preventing emissions from New Mexico sources from interfering with
other states' measures to protect visibility. As previously stated, we
have an obligation to promulgate a FIP to address the requirements of
section 110(a)(2)(D)(i) with respect to visibility and a FIP to address
the requirements of RH. The purposes and requirements of these programs
are intertwined. As such, we consider it appropriate to promulgate one
FIP that addresses the requirements of section 110(a)(2)(D)(i) with
respect to visibility and the BART requirements for NOX for
SJGS.
    We disagree with the commenter's belief that our proposal is
counter-productive. As presented in our proposal, our modeling analysis
demonstrates significant visibility improvement at numerous Class I
areas from installation of SCR at the SJGS. As we discuss elsewhere in
our response to comments, our estimate of the cost of installing SCR is
approximately \1/3\ what PNM estimated. Regarding the commenter's
belief that the technology we proposed seems unnecessary since PNM
recently completed a project that ``put it in compliance with all
current health requirements,'' we note that as part of our visibility
impairment and BART evaluation, we did consider the controls previously
installed by PNM as a result of its consent decree with the Grand
Canyon Trust, Sierra Club, and NMED on March 10, 2005. These controls
included the installation of low-NOX burners with overfire
air ports, a neural network system, and a pulse jet fabric filter.
    However, as we discuss elsewhere in our response to comments, these
controls were not sufficient to prevent New Mexico sources from
interfering with measures required in the SIP of any other state to
protect visibility, pursuant to section 110(a)(2)(D)(i)(II) of the CAA.
The reduction in NOX from our NOX BART
determination and the SO2 emission limits will serve to
ensure there are enforceable mechanisms in place to prohibit New Mexico
NOX and SO2 emissions from interfering with
efforts to protect visibility in other states. In addition, the RHR
requires us to examine additional retrofit technologies. We have
determined that SCR is cost effective and results in significant
visibility improvements at a number of Class I areas, over and above
the existing pollution controls currently installed. With regard to the
commenter's belief that cost estimates from the private sector tend to
be more accurate than government estimates, we note that we take our
duty to estimate the cost of controls very seriously and

make every attempt to make a thoughtful and well-informed
determination. With regard to the commenter's belief that this is not
an issue that requires emergency action and that we should allow
tomorrow's technology provide a solution to today's problems, we note
that Congress added the BART requirements to the CAA in 1977 to focus
attention on the visibility impacts from sources such as SJGS. We
therefore believe it is appropriate to take action now, and our FIP is
necessary to satisfy the requirements of CAA section
110(a)(2)(D)(i)(II) with respect to visibility for the 1997 8-hour
ozone standard and the 1997 PM2.5 standard, and to satisfy certain
related RH requirements. We also note that as described elsewhere in
this preamble, New Mexico has only recently submitted a RH plan that
addresses the interstate provisions of the CAA with respect to
visibility, and as also explained we cannot review it as part of this
action. The FIP clocks of both statutory requirements have expired and
we therefore have an obligation to act now under the CAA.
    Comment: An owner participant of Units 1 and 2 at the SJGS
indicates that our proposal presents significant challenges and risks
to its resource planning by handicapping its ability to cost
effectively respond to changing conditions. The commenter states that
uncertainties such as the impact of potential future regulations,
future fuel prices, and customer load growth/decline, have the
potential to change the economic viability of their generating
resources. The commenter points out that implementation of our proposal
would require it to make a significant capital investment in the plant,
the cost of which could only be recovered through long-term operation
of that asset. This would likely have the effect of ``locking'' SJGS
into the generation portfolio for a considerable period of time or risk
stranding those investments. According to the commenter, this loss of
flexibility would hamper its ability to respond to future scenarios
such as changes in the economic viability of coal resources, changes in
acceptance of coal resources by State utility commissions, and reduced
demand for coal resources. The commenter states that this loss of
flexibility is completely unnecessary given that the RH program is
intended to make gradual reductions in emissions over a decades-long
period of time. The commenter asks us to recognize the significant
reductions already made at SJGS or to defer to the SIP submitted by
NMED to the Environmental Improvement Board. The commenter suggests
that further reductions could be made at the plant, including the
possible installation of SCR, over subsequent planning periods. Such an
approach would reduce the immediate financial burden on the power
plant's customers, allow time for greater certainty in terms of
potential carbon limits and customer demand, and retain greater
flexibility in future resource decisions.
    Response: Regarding costs, EPA reevaluated projections based on
comments received to increase them to $344,542,604, which is still much
less than industry projections and cost effective. Cost is one of the
five factors considered in making BART determinations.\61\ Regarding
the utility's loss of flexibility, the emission limits we select today
are the result of a schedule in the 1977 Clean Air Act to make gradual
reductions in emissions over a decades-long period of time
---------------------------------------------------------------------------

    \61\ States must consider the following factors in making BART
determinations: (1) The costs of compliance; (2) the energy and
nonair quality environmental impacts of compliance; (3) any existing
pollution control technology in use at the source; (4) the remaining
useful life of the source; and (5) the degree of improvement in
visibility which may reasonably be anticipated to result from the
use of such technology. 40 CFR 51.308(e)(1)(ii)(A).
---------------------------------------------------------------------------

    With regard to the commenter's request that we recognize the
emissions reductions already made at SJGS or to defer to the SIP
recently that was submitted by NMED to the Environmental Improvement
Board near the time of the comment, we note that as part of our
NOX BART evaluation for SJGS, we did consider the controls
previously installed by PNM as a result of its consent decree with the
Grand Canyon Trust, Sierra Club, and NMED on March 10, 2005. However,
in making the NOX BART determination, we were obligated by
the RHR to examine additional retrofit technologies. EPA will give
priority to the review of New Mexico's recently submitted Haze SIP;
however, it was received too late to be taken into consideration in
this rule making.
    Comment: The Navajo Nation submitted comments stating that the
Navajo Nation Environmental Protection Agency is concerned that non-air
quality impacts have not been adequately considered in the proposed
rule. The commenter states that 20% of the plant workers at the SJGS
and 41% of the mine workforce at the San Juan Mine are Navajo Nation
tribal members. The commenter is concerned that we have provided no
information or analyses to explain how the SJGS will fund the SCR
installation costs within the limited timeframe without resorting to a
reduction-in-force that would potentially impact Navajo workers,
contractors, and subcontractors.
    Response: Because SJGS has not proposed to shut down, we do not
believe that jobs at the facility will be threatened. EPA's decision to
lengthen the compliance deadline from 3 to 5 years should also provide
some increases in local employment during that time associated with the
installation of pollution controls. The RHR requires that the costs of
compliance and the non-air quality environmental impacts of compliance
be considered [40 CFR 51.308(e)(1)(ii)(A)]. As described in our
proposal, we found that PNM did not identify any significant or unusual
environmental impacts associated with the control alternatives that had
the potential to affect the selection or elimination of that control
alternative. For SCR and SCR/SNCR hybrid technologies, the non-air
quality environmental impacts EPA evaluated included the consideration
of water usage and waste generated from each control technology.
    Comment: A commenter argues that things like wood burning stoves,
wood burning fireplaces, and natural occurrences such as dust, wind,
fires, and humidity, impair visibility just as much as utilities. The
commenter asks us to explain how we propose to control those events
that affect air quality.
    Response: Natural haze factors are recognized in the current degree
of visibility impairment in Class 1 areas. The purpose of this decision
is to significantly decrease impairment from the largest man made
sources. In addition, the emissions resulting from wood burning stoves
and fireplaces are typically included in the emission inventory, which
is part of the RH SIP New Mexico recently submitted to us under 40 CFR
51.309. We will review the adequacy of this SIP submission in a
separate future proposal.
    Comment: The commenter asks us to explain how we intend to analyze
the cost benefits to businesses and individuals.
    Response: The CAA requires us to consider the cost of installing
controls and the visibility benefits as part of the BART analysis, and
we have done that. The commenter may wish to consult the Statutory and
Executive Orders Review section of this action, which includes our
determination that the FIP does not contain a Federal mandate that may
result in expenditures that exceed the inflation-adjusted Unfunded
Mandates Reform Act of 1995 (UMRA) threshold of $100 million by State,
local, or Tribal

governments or the private sector in any 1 year.

I. Comments in Favor of Our Proposal

    Comment: Overall, we received more than 12,000 comment letters in
support of our rulemaking from members representing states, tribes,
local governments, various organizations and concerned citizens in
support of this rulemaking: These comments were received at the Public
Hearing in Farmington, New Mexico, by Internet, and through the mail.
Each of these commenters was generally in favor of our proposed
decision for the SJGS. These comments include urging us to require
appropriate retrofit technology at the SJGS for emission control, and
limiting NOX, SO2, sulfuric acid and ammonia
currently or potentially released by the facility. A number of
representative comments from this group are summarized below. The
Complete Response to Comments for NM Regional Haze/Visibility Transport
FIP document includes the full text received by these commenters.
    We received many letters which were similar in content and format,
and are represented by thirteen types of positive comment letters in
the docket for this rulemaking. Each of these comment letters supports
our proposed decision for the San Juan Generation Station in New
Mexico. More than 7,000 of these letters specifically urge us to keep
or lower our proposed numeric limits on nitrogen oxides, ammonia, and
sulfuric acid pollution in our final decision and urge us to require
compliance with the limits within three years.
    We received a letter from the State of Colorado in support of this
rulemaking. These comments include support for our careful evaluation
of NOX emission control costs for the SJGS, and our proposed
promulgation of cost effective emission control for this facility to
improve visibility and provide other environmental benefits. The State
of Colorado also encouraged us to work closely with the State of New
Mexico in selecting the most appropriate NOX control
technology.
    We received a letter from the Southern Ute Indian Tribe in support
of this rulemaking. The Tribe's comments include support for our
proposed action to prevent emissions from New Mexico sources from
interfering with other state's measures to protect visibility, and to
implement NOX and SO2 emissions limits at the
SJGS to prevent interference. In addition, the Tribe supports our
proposal to regulate emissions sources in neighboring areas that could
undermine the Tribes' efforts to maintain air quality on the
Reservation. The Tribe is concerned about the impacts of emissions from
SJGS on visibility on the Reservation; therefore the Tribe is in favor
of reducing the regional transport of ozone and ozone precursors such
as NOX.
    We received two resolutions which generally support this
rulemaking, one from the City of Durango, Colorado, and another from
the Town of Ignacio Colorado. These resolutions include support for
requiring the use of BART at the San Juan Generating Station.
    Another commenter expressed support of our proposal. The commenter
states that for the past 30-40 years, the SJGS has had a largely
unrestricted use of the large common air-shed shared by Montezuma
County, Colorado and San Juan County, New Mexico. During this
timeframe, the residents of Montezuma County and their neighbors have
been continually exposed to the air pollution arising from the SJGS,
yet the residents of Montezuma County receive no benefit from operation
of the plant in terms of electricity (aside from 40 MW purchased from
SJGS), tax revenues, and community support.
    Another commenter supported all aspects of our proposed rule. The
commenter volunteers at Mesa Verde National Park and mentions that many
park visitors express disappointment over the degraded air quality and
limited vistas from the Park. The commenter states that the 2.88
deciview of visibility improvement we predicted at Mesa Verde National
Park with SCR installed at SJGS, would be readily noticed by both
residents and visitors to the region. The commenter notes that PNM's
Web site claims that SCR is ``unnecessary'' and would ``raise
electricity prices for the SJGS's two million customers,'' yet PNM
offers no data or other support for its conclusion. The commenter also
notes that no significant improvement in Four Corners RH has been seen
since PNM completed installation of emission controls pursuant to the
2009 consent decree. The commenter also states that it is legally,
socially, and economically appropriate for PNM's customers to pay the
full costs of the power they consume, including the air pollution
created while generating it. The commenter also states that although
PNM characterizes the SJGS as a ``low cost'' producer of power, it
fails to acknowledge that a substantial cost of its power, in the form
of regional air quality degradation, is borne by the people of the Four
Corners region, many of whom do not consume SJGS power and derive no
economic benefit from the facility. The commenter believes a three-year
implementation schedule for SCR at the SJGS is both appropriate and
achievable at a reasonable cost.
    Response: We note that several of the specific emissions and
timeframe limitations supported by these commenters in the proposal
have been modified slightly in this final action based on all of the
information received during the comment period. Please see the docket
associated with this action for additional detail.

J. Comments Arguing Our Proposal Would Hurt the Economy and/or Raise
Electricity Rates

    Comment: A commenter stated that if the FIP is adopted, the owners
of the SJGS will have three options: compliance, plant shutdown, or
plant modification. The commenter states that compliance would result
in a capital expense not justified by the likely results of that
investment, and would be a terrible, indefensible waste of resources.
Plant shutdown would result in the loss of hundreds of jobs in direct
plant employment, coal mining, and other support and service sectors.
The commenter also points out that plant shutdown would result in the
SJGS customers losing their investment in the plant, which they have
paid for through rate payment. SJGS customers would have to pay for the
development of new generation facilities and fuel contracts or would
have to buy power on the open market, and they would also be
responsible for the reclamation of the plant site and any coal mine
that might be abandoned as a result of plant closure. The commenter
states that plant modification would likely take the form of conversion
from coal-fired to natural gas-fired, which would also result in loss
of jobs, as there would be no need for coal. The commenter indicates
that all three options would result in an increase in the cost of
electricity to customers, which should be avoided or eliminated in
light of the weakened and unstable economic conditions at the national,
state, and local levels.
    Another part owner of Unit 4 at the SJGS, submitted comments
stating that the impact from imposing its share of the costs of
installing SCR at the SJGS, may require it to raise electric rates, cut
back on planned clean energy investments, or both, all for what appear
to be insignificant benefits.
    Response: EPA's evaluation of capital expenses by the
implementation of the FIP shows them to be justified by the degree of
improvement in visibility in relationship to the cost of
implementation. The FIP calls for NOX and SO2
emission limits at the SJGS to prevent interference with other states'
visibility SIPs as well as requiring BART

for NOX at this source. BART requires that we evaluate (1)
cost of compliance, (2) the energy and non-air quality environmental
impacts of compliance, (3) any existing pollution control technology in
use at the source, (4) remaining useful life of source, and (5) degree
of improvement in visibility which may reasonably be anticipated to
result from the use of such technology.
    After careful cost review EPA has determined that the significant
benefits in visibility resulting from the implementation of the FIP
outweigh the increase in costs for the facility.

K. Comments Arguing Our Proposal Would Help the Economy

    Comment: We received several comments stating that the proposed FIP
would help local economies by creating new and different jobs in the
Region and by increasing tourism. In particular, one commenter stated
reducing visibility-causing pollutants have far-reaching impacts on
local economies, human health, and ecosystems. The commenter stated
that decreasing these pollutants will benefit all of these important
areas of concern. This commenter noted that tourism is critical to the
economy of New Mexico and the Four Corners region, and made several
points: Utah's five Class I areas, all of which are national parks,
generate a significant portion of this sustainable tourism economy: in
2008, these areas were responsible for 5.7 million recreation visits,
over $400 million in spending, and nearly 9,000 jobs. Parks attract
businesses and individuals to the local area, resulting in economic
growth in areas near parks that is an average of 1 percent per year
greater than statewide rates over the past three decades. National
parks also generate more than four dollars in value to the public for
every tax dollar invested. Therefore, this commenter concluded,
improving visibility at these national parks improves the local
economies around them.
    This commenter also noted that an additional economic incentive
behind protecting air quality is the necessary investment in pollution
control technologies as they are a job-creating mechanism in itself.
Each installation creates short-term construction jobs as well as
permanent operations and management positions.
    Response: We agree with the comments. Although we did not consider
the potential positive benefits to local economies in making our
decision today, we do expect that improved visibility would have a
positive impact on tourism-dependent local economies. Also,
retrofitting the SJGS with SCR is a large construction project that we
expect to take 3 to 5 years to complete. This project will require
well-paid, skilled labor which can potentially be drawn from the local
area, which would seem to benefit the economy.

L. Comments Requesting an Extension to the Public Comment Period

    Comment: We received comments requesting that the comment period be
extended, with most requesting an additional 60 days. We also received
comments requesting additional public hearings.
    Response: Originally the comment period for our proposal was due to
close on March 7, 2011. In response to requests we extended the public
comment period to April 4, 2011. In doing so, we took into
consideration how an extension might affect our ability to consider
comments received on the proposed action and still comply with the
terms of a consent decree we have with WildEarth Guardians.\62\ We do
note that our February 17, 2011, public hearing in Farmington, New
Mexico was well attended and provided an opportunity for people to
comment on our proposal.
---------------------------------------------------------------------------

    \62\ WildEarth Guardians v. Lisa Jackson, Case No. 4:09-CV-
02453-CW.
---------------------------------------------------------------------------

M. Comments Requesting We Defer Action in Favor of a New Mexico SIP
Submittal

    Comment: Various commenters have stated that the NMED should take
the lead in implementing the RH requirements of the CAA based on the
fundamental principle that the CAA and the RHR emphasize that states,
not EPA, are to take the lead in implementing the RH program, and we
should wait taking action until NMED submits to the Agency their
revised RH SIP and adopt such submittal instead of promulgating a FIP.
    Response: Congress crafted the CAA to provide for States to take
the lead for implementing plans, but balanced that decision by
requiring EPA to approve the plans or prescribe a federal plan should
the State plan be inadequate. Our action today is consistent with the
statute. As explained in our proposal, we received a SIP from New
Mexico to address the interstate transport provisions of CAA section
110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5 NAAQS on
September 17, 2007. New Mexico's September 17, 2007 submittal addressed
the requirement that the state not interfere with the visibility
programs of other states by stating that it would submit a RH SIP by
December 2007.
    On January 15, 2009, EPA published a ``Finding of Failure to Submit
State Implementation Plans Required by the 1999 Regional Haze Rule.''
74 FR 2392. We found that New Mexico and other states had failed to
submit for our review and approval complete SIPs for improving
visibility in the nation's national parks and wilderness areas by the
required date of December 17, 2007. We found that New Mexico failed to
submit the plan elements required by 40 CFR 51.309(g), the reasonable
progress requirements for areas other than the 16 Class I areas covered
by the Grand Canyon Visibility Transport Commission Report. New Mexico
also failed to submit the plan element required by 40 CFR 51.309(d)(4),
which requires BART for stationary source emissions of NOX
and PM under either 40 CFR 51.308(e)(1) or 51.308(e)(2). This notice
initiated a 2-year deadline, referred to as the ``FIP clock,'' for New
Mexico to submit a SIP or for EPA to issue a FIP. The FIP would provide
the basic program requirements for each State that has not completed an
approved plan of their own by January 15, 2011. The CAA requires EPA to
promulgate a FIP if a State fails to make a required SIP submittal or
if we find that the State's submittal is incomplete, does not meet the
minimum criteria established in the CAA or we disapprove in whole or in
part the SIP submission. CAA section 110(c)(1).
    In addition, WildEarth Guardians sued EPA alleging that we failed
to perform the non-discretionary duty to either approve a SIP or
promulgate a FIP for New Mexico, among other States, to satisfy the
requirements of CAA section 110(a)(2)(D)(i) with regard to the 1997
National Ambient Air Quality Standards for 8-hour ozone and fine
particulate matter. We have entered into a consent decree with
WildEarth Guardians to resolve this matter.
    This consent decree specifically requires us--no later than August
5, 2011--to sign a notice either approving a SIP, promulgating a FIP,
or approving a SIP in part with promulgation of a partial FIP, for New
Mexico to meet the requirement of 42 U.S.C. 7410(a)(2)(D)(i)(II)
regarding interfering with measures in other states related to
protection of visibility. As required by the consent decree, since New
Mexico did not submit a complete proposed SIP to address the visibility
requirement by May 10, 2010, then by November 10, 2010, EPA was
required to propose one of three actions: A FIP; approval of a SIP (if
one has been submitted in the interim); or partial promulgation of a

FIP and partial approval of a SIP. In the absence of a SIP, EPA
proposed a FIP on January 5, 2011. We received the New Mexico submittal
on July 5, 2011,after the close of the record for the proposed FIP EPA
will give priority to the review of New Mexico's SIP but we cannot
consider it and meet the consent decree deadline.

N. Comments Generally Against Our Proposal

    Comment: Various commenters generally stated they do not support
the proposed rulemaking. Their reasons included: It will affect the
town's economy, affect the coal power plant industry, electricity costs
will increase, they have no direct health problems from actual
emissions, direct and indirect jobs/businesses would be affected,
current air pollution control equipment meet EPA and health standards.
Others commented that our decision is arbitrary as no other similar
facilities have the same requirements imposed by the FIP and that there
will be no benefit to the community. One commenter argues that SJGS
already meets the visibility standards required by the CAA.
    Response: While we appreciate the effort and time of the
commenters, the comments did not include documentation, rationale, or
data for EPA to respond beyond our responses provided elsewhere.

O. Comments on Legal Issues

1. EPA's Authority
    Comment: Various commenters argued that combining Interstate
Transport and RH BART requirements in the proposed action exceeds our
authority and does not satisfy the regulatory requirements of each
program, and each program has different requirements and purposes.
    Response: We do not agree that it exceeds our authority to combine
action on RH BART requirements as part of our action on the required
State submittal to meet section 110(a)(2)(D) of the CAA. EPA has two
separate sources of authority and obligations to take this action,
i.e., a statutory obligation to promulgate a FIP to meet the
requirements of section 110(a)(2)(D)(i)(II) and a statutory obligation
to promulgate a FIP to meet RH program requirements of the CAA. Nothing
in the CAA precludes EPA from addressing both requirements
simultaneously, and indeed, to address both in the same action is
rational to ensure the most efficient use of resources by both the
Agency and the affected source. The SJGS is subject to both provisions
of the CAA, and both provisions concern emissions of NOX
(among other pollutants). To separate our actions could potentially
lead to the same source needing to install two successive levels of
control measures, the first in order to meet the requirements of
section 110(a)(2)(D)(i), and then the second in order to meet the
requirements of the RH program.
    The CAA requires each state to develop a SIP that provides for the
implementation, maintenance, and enforcement of the NAAQS. CAA section
110(a)(1). The statute explicitly requires that each state's SIP shall
include, among other things, adequate provisions prohibiting any source
from emitting any air pollutants in amounts which will interfere with
measures required to be included in the applicable implementation plan
for any other State to protect visibility. CAA section
110(a)(2)(D)(i)(II).
    On April 25, 2005, we published a ``Finding of Failure to Submit
SIPs for Interstate Transport for the 8-hour Ozone and PM2.5
NAAQS.'' 70 FR 21147. This notice included a finding that New Mexico
and other states had failed to submit SIPs to address any of the four
prongs of section 110(a)(2)(D)(i), including the provisions relating to
interstate transport of air pollution affecting visibility, and started
a 2-year clock for us to promulgate a FIP, unless a State made a
submission to meet the requirements of section 110(a)(2)(D)(i) and we
approved the submission. CAA section 110(c)(1). That two year period
has expired.
    The CAA also requires each state to develop a SIP to protect
visibility. CAA section 169. On January 15, 2009, we published a
``Finding of Failure to Submit State Implementation Plans Required by
the 1999 Regional Haze Rule.'' 74 FR 2392. In that notice we found that
New Mexico and other states had failed to submit complete SIPs for
improving visibility in the nation's national parks and wilderness
areas by the required date of December 17, 2007. Specifically, we found
that New Mexico failed to submit the plan elements required by 40 CFR
51.309(g), the reasonable progress requirements for areas other than
the 16 Class I areas covered by the Grand Canyon Visibility Transport
Commission Report. In addition, we also found that New Mexico had
failed to submit the plan element required by 40 CFR 51.309(d)(4),
which requires BART for stationary source emissions of NOX
and PM under either 40 CFR 51.308(e)(1) or 51.308(e)(2). This finding
of failure to submit started a 2-year clock for us to promulgate a FIP,
unless the State made a RH SIP submission and we approved it. That two
year period has also expired.
    On September 17, 2007 we received a SIP from New Mexico to address
the interstate transport provisions of CAA 110(a)(2)(D)(i) for the 1997
8-hour ozone and PM2.5 NAAQS. In that submission, the state
indicated that it intended to meet the requirements of section
110(a)(2)(D)(i) with respect to visibility by submission of a timely RH
SIP. Those RH SIPs were due no later than December 17, 2007.
    As of the time of our proposal for this action on January 5, 2011,
the state had not make the RH SIP submission as represented in its
section 110(a)(2)(D) submission, and had not make a RH SIP submission
or alternate section 110(a)(2)(D) submission indicating that the state
intended to meet visibility prong by any other means.
    We received a RH SIP submittal from the state on July 5, 2011.
Unfortunately, due to the timing of that submittal, we cannot evaluate
it as part of this action. We note that this RH SIP submittal arrived
approximately 3\1/2\ years past the due date of December 17, 2007, and
well past January 15, 2011, the date by which we were obligated either
to approve a RH SIP submission or to promulgate a RH FIP, as a result
of the 2009 finding of failure to submit the RH SIP. Moreover, the July
5, 2011, submission also occurred more than four years after the date
by which we were obligated either to approve a SIP submission or to
promulgate a FIP to address the state's failure to submit a submission
for section 110(a)(2)(D)(i)(II).
    We are under a consent decree deadline with WildEarth Guardians
that requires the Agency to take action by August 5, 2011, either to
approve the New Mexico section 110(a)(2)(D) SIP, or to promulgate a
FIP, to address the 110(a)(2)(D)(i)(II) visibility prong. Because of
the lateness of the July 5, 2011 submission, it is not possible to
review and potentially fully approve the July 5, 2011, SIP submission
by proposing a rulemaking and promulgating a final action by August 5,
2011, as required by the consent decree.
    The CAA requires us to promulgate a FIP if a State fails to make a
required SIP submittal or if we find that the State's submittal is
incomplete, does not meet the minimum criteria established in the CAA
or we disapprove in whole or in part the SIP submission. CAA section
110(c)(1). As previously discussed, we have made findings related to
the New Mexico SIP submission needed to address interstate transport
and the requirement that emissions from New Mexico sources do

not interfere with measures required in the SIP of any other state to
protect visibility, pursuant to section 110(a)(2)(D)(i)(II) of the CAA.
    Therefore, as New Mexico failed to submit an approvable SIP that
addresses the interstate provisions of the CAA with respect to
visibility, and has made a very late RH SIP submission giving us no
time to complete the regulatory process necessary to evaluate that
submission in light of the deadlines imposed by the above-mentioned
consent decree, we have the statutory authority and the obligation to
promulgate a FIP that meets one or both requirements.
    In addition, we think that it is appropriate to take action on the
visibility requirements of section 110(a)(2)(D)(i)(II) and RH program
requirements simultaneously in these circumstances because the purposes
and requirements of the interstate transport provisions of the CAA with
respect to visibility and the RH program are intertwined. The
requirements of CAA section 110(a)(2)(D)(i)(II) explicitly provide that
states must have SIPs with adequate provisions to prevent inference
with the efforts of other states to protect visibility, which includes
the protections contemplated by the RH program. This section of the CAA
requires each SIP ``to include adequate provisions prohibiting any
source from emitting any air pollutants in amounts which will interfere
with measures required to be included in the applicable implementation
plan for any other State * * * to protect visibility.'' These required
SIP measures to protect visibility are set forth in sections 169A &
169B of the CAA and EPA's implementing regulations for the RH program.
    Section 110(a)(2)(D)(i)(II) does not explicitly define what is
required in SIPs to prevent the prohibited impact on visibility in
other states. However, because the RH program requires measures that
must be included in SIPs specifically to protect visibility, EPA's 2006
Guidance \63\ recommended that RH SIP submissions meeting the
requirements of the visibility program could satisfy the requirements
of CAA section 110(a)(2)(D)(i)(II) with respect to visibility.
---------------------------------------------------------------------------

    \63\ See, ``Guidance for State Implementation Plan (SIP)
Submissions to Meet Current Outstanding Obligations Under Section
110(a)(2)(D)(i)for the 8-Hour Ozone and PM2.5 National
Ambient Air Quality Standards,'' from William T. Harnett, Director
Air Quality Policy Division, OAQPS, to Regional Air Division
Director, Regions I-X, dated August 15, 2006 (the ``2006
Guidance'').
---------------------------------------------------------------------------

    Subsequently, when some states did not make the RH SIP submission,
in whole or in part, or did not make an approvable RH SIP submission,
we have evaluated whether states could comply with section
110(a)(2)(D)(i)(II) by other means. Thus, we have elsewhere determined
that states may also be able to satisfy the requirements of CAA section
110(a)(2)(D)(i)(II) with something less than an approved RH SIP, see
e.g. Colorado (76 FR 22036 (April 20, 2011)) and Idaho (76 FR 36329
(June 22, 2011)). In other words, an approved RH SIP is not the only
possible means to satisfy the requirements of CAA section
110(a)(2)(D)(i)(II) with respect to visibility; however, such a SIP
could be sufficient. Given this reasoning, we do not agree with
commenters' contentions that the two programs have completely different
requirements and purposes and that it is unreasonable for EPA to seek
to address these issues in the same action.
    Comment: Various commenters have stated that we proposed to act on
an interstate transport SIP requirement, while borrowing portions of
the RH SIP requirements, and that such partial implementation of
programs is inappropriate and conflicts with the structure and purpose
of the CAA.
    Response: We disagree with the premise of the commenters that we
cannot address more than one statutory requirement in the same notice
and comment rulemaking. See response to comments, above, regarding our
general authority and obligation to act on section 110(a)(2)(D)(i)(II)
and RH SIP requirements. We also specifically disagree that acting on
portions of the RH SIP requirements in this action is inappropriate and
conflicts with the structure and purpose of the CAA. We have authority
to act on submissions, or portions of submissions, as appropriate to
meet the requirements of the CAA, in accordance with section 110(k)(3).
In this instance, we have determined that it is appropriate to take
action addressing the NOX BART requirements for an
individual source, and thereby to meet a portion of our outstanding
statutory FIP obligation for the RH program, at the same time as acting
on the section 110(a)(2)(D)(i)(II) SIP submission with respect to the
visibility prong to meet that statutory FIP obligation.
    We note that we have previously acted on other portions of the
section 110(a)(2)(D)(i) SIP submission from the state. In prior
actions, we approved the New Mexico SIP submittal for: (1) The
``significant contribution to nonattainment'' prong of section
110(a)(2)(D)(i) (75 FR 33174, June 11, 2010); and (2) the ``interfere
with maintenance'' and ``interfere with measures to prevent significant
deterioration'' prongs of section 110(a)(2)(D)(i). (75 FR 72688,
November 26, 2010). Were it in fact ``inappropriate'' to act on
portions of SIP submissions, or were it contrary to the structure and
purpose of the CAA to do so, as the commenters argue, we would not have
taken such prior actions on portions of the state's section
110(a)(2)(D)(i) submission. Moreover, no one objected to those actions
on these grounds.
    We also contend that promulgating FIPs to address specific CAA
requirements is consistent with the purposes of the statute. One of the
primary goals of the CAA is to protect and enhance the quality of the
Nation's air resources so as to promote the public health and welfare.
CAA section 101(b)(1). Failing to submit an approvable SIP submission,
as required by section 110 of CAA, is contrary to the purposes and
goals of the CAA. The CAA requires us to promulgate a FIP if a State
has failed to make a required submission or finds that a plan does not
satisfy the minimum established criteria, or disapproves a SIP
submission in whole or in part. CAA section 110(c)(1).
    In this action, we are disapproving a portion of the New Mexico
Interstate Transport SIP with respect to the requirement that emissions
from New Mexico sources do not interfere with measures required in the
SIP of any other state to protect visibility. On September 17, 2007 we
received a SIP from New Mexico to address the interstate transport
provisions of CAA 110(a)(2)(D)(i) for the 1997 8-hour ozone and
PM2.5 NAAQS. In this submission, the state indicated that it
intended to meet the requirements of section 110(a)(2)(D)(i) with
respect to visibility by submission of a timely RH SIP. As previously
explained above, we received a RH SIP submission from the state on July
5, 2011. Because of the lateness of the submission, and in light of our
obligations under the WildEarth Guardians consent decree to have
completed rulemaking on the visibility prong of Section
110(a)(2)(D)(i), it is not possible to review such SIP submission,
propose a rulemaking, and promulgate a final action prior to the August
5, 2011 deadline.
    Therefore, as previously stated, we have both a statutory
obligation to promulgate a FIP to address the requirements of section
110(a)(2)(D)(i) with respect to visibility and a statutory obligation
to promulgate a FIP to address the requirements of RH. As also
previously stated, the purposes and

requirements of these programs are intertwined. As such, we consider it
appropriate to promulgate one FIP that addresses both the requirements
of section 110(a)(2)(D)(i) with respect to visibility and the BART
requirements for NOX from SJGS. Although there are
additional RH SIP requirements to be addressed, and we intend to
address these requirements in the near future, there is no requirement
in the CAA that we take action to address a state's failure to submit
an approvable RH SIP in only one action.
    Comment: Some commenters argued that the proposed FIP is too all
encompassing, exceeds the authority vested in EPA under Section 110 of
the CAA because it provides too stringent a control for attaining
visibility standards, and will have broader impact than the purpose of
the CAA to not interfere with neighboring state implementation plans.
    Response: In general, for the reasons we have outlined elsewhere in
our responses to comments, we disagree that our FIP is too all
encompassing or exceeds our authority under section 110(a)(2)(D)(i) of
the CAA. Under that provision, we may not approve the SIP submission
from the state unless the SIP contains provisions adequate to prohibit
emissions from sources in that state from interfering with measures
required to protect visibility in other states. As explained in this
action, we have determined that emissions sources in New Mexico meet
this requirement, except for the SJGS. For this source, we have
determined that additional and federally enforceable controls are
required in order to meet the NOX emissions used in the WRAP
photochemical modeling and that federally enforceable emission limits
are required in order to meet the SO2 emissions used in the
WRAP photochemical modeling, as part of this action in order to be in
compliance with section 110(a)(2)(D)(i). Our action is also based in
part on our authority to address the NOX BART requirements
for the SJGS. To meet this separate requirement, we have determined
that specific NOX controls are required for the SJGS.
    Comment: Various commenters argued that EPA failed to present ``a
coherent or defensible justification'' for its interpretation of
section 110(a)(2)(D)(i)(II) in the proposal, and that EPA failed to
explain adequately its interpretation of CAA section
110(a)(2)(D)(i)(II) and the relationship between that provision, as
interpreted by the Agency, and CAA sections 169A and 169B. In addition,
the commenter asserted that EPA has no basis to disapprove the state's
section 110(a)(2)(D) submission with respect to the visibility prong,
because the state's submission was consistent with EPA's 2006 guidance
to states for these SIP submission.
    Response: We disagree with these assertions. First, in the proposal
we explained our views as to the proper interpretation of section
110(a)(2)(D)(i)(II). We explained that section 110(a)(2)(D(i)(II)
requires states ``to have a SIP, or submit a SIP revision, containing
provisions `prohibiting any source or other type of emissions activity
within the state from emitting any air pollutant in amounts which will
* * * interfere with measures required to be included in the applicable
implementation plan for any other State under part C [of the CAA] to
protect visibility. 76 FR 493 (January 5, 2011). We explicitly stated
that ``[b]ecause of the impacts on visibility from the interstate
transport of pollutants, we interpret the `good neighbor' provisions of
section 110 of the Act described above as requiring states to include
in their SIPs measures to prohibit emissions that would interfere with
the reasonable progress goals set to protect Class I areas in other
states.'' Id.
    In the proposal, we expressed our view that section
110(a)(2)(D)(i)(II) ``does not explicitly specify how we should
ascertain whether a state's SIP contains adequate provisions to prevent
emissions from sources in that state from interfering with measures
required in another state to protect visibility'' Id. at 496. We
clearly stated that the statute is thus ambiguous and that the Agency
must interpret that provision in this action. Id. We are explaining our
reading of the ambiguity in the statute in this notice and comment
rulemaking.
    Thereafter, we articulated in detail the underlying premise for our
2006 guidance, and the recommendations that states address this
requirement through submission of the RH SIP. We specifically explained
the basis for our belief that the development of those SIPs would
provide an appropriate forum in which states would have evaluated the
need for emission controls to protect visibility, and in particular
would have considered emissions from sources in other states and their
degree of control as part of developing their respective programs to
protect visibility. The proposal articulated our basis for proposing to
interpret the requirement of section 110(a)(2)(D)(i)(II) to mean that
the state's SIP must contain at least those emission reductions that
other states would have relied upon from New Mexico sources in the
development of their reasonable progress goals in their respective
visibility programs. Moreover, our proposal articulated that evaluation
of the analysis conducted by the WRAP is one means of gauging whether
New Mexico has adequately controlled its sources for this purpose.
    We also disagree with the assertion that we have failed to explain
adequately our interpretation of the visibility prong of section
110(a)(2)(D)(i) in light of the requirements of section 169A and 169B
of the Act. As explained in our proposed action, the CAA establishes a
visibility protection program that sets forth ``as a national goal the
prevention of any future, and the remedying of any existing, impairment
of visibility in mandatory class I Federal areas which impairment
results from manmade air pollution.'' CAA section 169A(a)(1). In
section 169A(a)(1) of the 1977 Amendments to the CAA, Congress created
a program for protecting visibility in the nation's national parks and
wilderness areas. This section of the CAA establishes as a national
goal the ``prevention of any future, and the remedying of any existing,
impairment of visibility in mandatory Class I Federal areas which
impairment results from manmade air pollution.'' In 1980, we
promulgated regulations to address visibility impairment in Class I
areas that is ``reasonably attributable'' to a single source or small
group of sources, i.e., ``reasonably attributable visibility
impairment.'' 45 FR 80084 (December 2, 1980). These regulations
represented the first phase in addressing visibility impairment. We
deferred action on RH that emanates from a variety of sources until
monitoring, modeling and scientific knowledge about the relationships
between pollutants and visibility impairment were improved. Id.
    Congress added section 169B to the CAA in 1990 to address RH
issues, and we promulgated regulations addressing RH in 1999. 64 FR
35714 (July 1, 1999), codified at 40 CFR part 51, subpart P (the RHR).
The RHR revised the existing visibility regulations to integrate
provisions addressing RH impairment and established a comprehensive
visibility protection program for Class I areas. The requirements for
RH, found at 40 CFR 51.308 and 51.309, are included in our visibility
protection regulations at 40 CFR 51.300-309. States were required to
submit the first SIP addressing RH visibility impairment no later than
December 17, 2007. 40 CFR 51.308(b).
    We disagree with the argument that because section 169A and B
create a specific program for protection of visibility, that compels
the conclusion that section 110(a)(2)(D)(i)(I) could not

have any substantive bearing on this issue. Such an argument is at odds
with the clear provisions of the statute, and with the structure of the
CAA. Section 110(a)(2)(D)(i)(II) of the CAA requires that SIPs shall
include adequate provisions ``prohibiting * * * any source * * * within
the State from emitting any air pollutant in amounts which will * * *
interfere with measures required to be included in the applicable
implementation plan for any other State under part C * * * to protect
visibility.'' (Emphasis added). Because sections 169A and 169B
establish the national goal for visibility protection, including RH
issues, we infer that when Congress included protection of required
visibility programs in other states as part of section 110(a)(2)(D)(i),
it was a conscious reference to the sections in the CAA that address
that matter. Indeed, in section 110(a)(2)(D)(i)(II), Congress directed
us to prevent interference with the ``measures required to be included
in the applicable implementation plan for any other State under part C
of this chapter * * * to protect visibility,'' and the RH program is
unequivocally among those required measures to protect visibility.
Thus, it is reasonable for EPA to evaluate whether the SIP of a given
state prohibits emissions, consistent with what other states will have
developed their own visibility programs in reliance upon.
    It is illogical to conclude that Congress would have explicitly
directed us to assure that state SIPs contain provisions to protect
visibility programs in other states, but that we not have the authority
to require such provisions as part of a section 110(a)(2)(D)(i)(II) SIP
submission, or if necessary to supply them as part of a FIP. Such an
argument is also clearly inconsistent with the other prongs of section
110(a)(2)(D)(i). The mere existence of other statutory programs to
provide for attainment and maintenance of the NAAQS required in part D
of the Act, does not negate the requirement that states also meet the
requirement of the ``significant contribution to nonattainment'' and
``interference with maintenance'' prongs of section 110(a)(2)(D)(i)(I),
and the authority of EPA to require substantive provisions in the SIP,
or to promulgate a FIP to provide them, as may be necessary. We have
exercised such authority and issued SIP calls or promulgated FIPs to
assure that state SIPs meet the requirements of section
110(a)(2)(D)(i).\64\ Because of the impacts on visibility from the
interstate transport of pollutants, we thus interpret the ``good
neighbor'' provisions of section 110 of the Act described above as
requiring states to include in their SIPs measures to prohibit
emissions that would interfere with the reasonable progress goals of
the RH program set to protect Class I areas in other states of the RH
program.
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    \64\ See, e.g., ``Finding of Significant Contribution and
Rulemaking for Certain States in the Ozone Transport Assessment
Group Region for Purposes of Reducing Regional Transport of Ozone;
Final Rule,'' 63 FR 57356, October 27, 1998, (the NOx SIP Call).
---------------------------------------------------------------------------

    Finally, we disagree with the commenter's views concerning the
state's September 2007, submission complying with the Agency's 2006
guidance, and even if it had complied with that guidance, the purported
legal significance of that fact for purposes of this action. As the
commenters themselves conceded, the state's 2007 submission stated that
it would make a timely RH SIP submission by December of 2007 as its
intended means of meeting the requirements of section
110(a)(2)(D)(i)(II) for visibility, but due to intervening events the
state did not in fact do so prior to our proposed action. Contrary to
the commenter's views, that submission was not factually consistent
with the recommendations of the guidance.\65\
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    \65\ Subsequent to the proposal for this action, and subsequent
to the commenter's comments, the state did make a RH SIP submission
on July 5, 2011, one month before we have to finalize rulemaking
either by promulgating a FIP or reviewing, proposing a rulemaking
and promulgating a final action fully approving the SIP, as required
by the August 5, 2011 consent decree deadline. Nevertheless, the
commenter was clearly in error given that there was no submission
purporting to meet the requirements of the RH program as of the time
of its comments.
---------------------------------------------------------------------------

    More importantly, however, our 2006 guidance reflected our
recommendations for how states could potentially meet the section
110(a)(2)(D)(i)(II) requirement at that point in time. As of August
2006, we stated our belief that it was ``currently'' premature for
states to make a more substantive SIP submission for this element,
because of the anticipated imminent RH SIP submissions. We explicitly
stated that ``at this point in time'' in August of 2006, it was not
possible to assess whether emissions from sources in the state would
interfere with measures in the SIPs of other states. As subsequent
events have demonstrated, we were mistaken as to the assumption that
all states would submit RH SIPs in December of 2007 and mistaken as to
the assumption that all such submissions would meet applicable RH
program requirements and therefore be approved shortly thereafter. Thus
the premise of the 2006 Guidance that it would be appropriate to await
submission and approval of such RH SIPs before evaluating SIPs for
compliance with section 110(a)(2)(D)(i)(II) was in error. Our 2006
Guidance was clearly intended to make recommendations that were
relevant at that point in time, and subsequent events have rendered it
inappropriate in this specific action.
    In short, we must act upon the state's submission in light of the
actual facts, and in light of the statutory requirements of section
110(a)(2)(D)(i). Whereas our prior recommendations were prospectively
anticipating the submission of the RH SIP as a means of the state
imposing the controls necessary on New Mexico sources necessary to
prevent interference with the required visibility programs of other
states, those recommendations are inappropriate at this juncture. In
order to evaluate whether the state's SIP currently in fact contains
provisions sufficient to prevent the prohibited impacts on the required
programs of other states, we are obligated to consider the current
circumstances and investigate the level of controls at New Mexico
sources and whether those controls are or are not sufficient to prevent
such impacts.
    We similarly disagree with the commenters' argument that it is
still ``premature'' to evaluate the compliance of the state's SIP at
this time, and that we ``must await the date on which regional haze
SIPs have been submitted and approved.'' First, this approach is
illogical, as it fails to address what would happen if a state were
never to submit the required RH SIP, or were never to submit a RH SIP
that was approvable. On its face, the commenter's argument is simply
inconsistent with the objectives of the statute to protect visibility
programs in other states if a state never submits an approvable RH SIP.
Second, this approach is flatly inconsistent with the timing
requirements of section 110(a)(1) which specifies that SIP submissions
to address section 110(a)(2)(D)(i), including the visibility prong of
that section, must be made within three years after the promulgation of
a new or revised NAAQS. We acknowledge that there have been delays with
both RH SIP submissions by states and our actions on those RH SIP
submissions, but that fact does not support a reading of the statute
that overrides the timing requirements of the statute. We believe that
there are means available now to evaluate whether a state's section
110(a)(2)(d)(i)(II) SIP submission meets the substantive requirement
that it contain provisions to prohibit interference with the visibility
programs

of other states, and therefore that further delay, until all RH SIPs
are submitted and fully approved, is unwarranted and inconsistent with
the key objective to protect visibility.
    Section 110(a)(2)(d)(i)(II) directs EPA to evaluate the SIP of a
state for adequate controls on emissions from the state to prevent
interference with measures ``required to be included in the applicable
state implementation plan'' of other states. Thus, this evaluation is
supposed to consider what other states should have in their SIPs as of
this point in time, and is not limited by the fact that other states
may or may not have made the required RH SIP submission, nor by the
fact that we may or may not have approved those RH SIP submissions at
this point in time. Instead, we must evaluate the state's section
110(a)(2)(D)(i)(II) submission in light of the programs that states are
required to have, and that clearly includes the RH program required in
other states. As discussed above, we believe that one means to evaluate
this issue is to determine whether the level of controls in the SIP are
consistent with the expectations for controls at New Mexico sources
relied upon by other states in the development of their own respective
visibility programs and consistent with the needs for emissions
reductions that we ourselves conclude are needed for purposes of the RH
program.
    Comment: The proposed FIP requires exceedingly stringent and
expensive compliance obligations that are not adequately legally
supported because the proposed FIP fails to adequately satisfy the
interstate transport provisions of Section 110(a)(2)(D)(i) of the CAA
or the provisions of the RHR.
    Response: We disagree that the FIP is not legally supported. The
FIP satisfies provisions in both section 110(a)(2)(D)(i)(II) of the CAA
regarding interstate transport of pollutants affecting visibility in
other states and for the NOX BART determination for the
SJGS, the RHR.
    We find that the emissions from the SJGS in New Mexico are
interfering with the other states' required measures to protect
visibility. Therefore, we are imposing through the FIP, specific
emission limits upon the SJGS to prevent such interference. We are
imposing an SO2 limit and a NOX limit. To provide
greater certainty to the SJGS that controls needed to prevent
interference with other states' visibility programs, as well as the
controls needed to meet the RHR's BART requirements, do not conflict
with each other and end up imposing unnecessary greater costs upon the
SJGS, we are imposing a BART NOX emission limit that meets
both requirements at this time, rather than postponing action on this
RH SIP requirement. We are only determining that the SJGS is subject to
BART and promulgating the NOX BART FIP for the SJGS. We are
not addressing whether New Mexico has met the requirements of the RHR
for any other sources; we are not addressing whether the SJGS is
meeting the RH BART requirements for any other pollutants; and we will
address those requirements in later actions.
    We have the specific authority to promulgate a FIP imposing a
NOX BART emission limitation upon the SJGS because we
previously found that New Mexico had failed to submit a complete RH SIP
by December 17, 2007. 74 FR 2392 (January 15, 2009). This finding
started a two year clock for the promulgation of a RH FIP by EPA or the
approval of a complete RH SIP from New Mexico. CAA section 110(c)(1).
The FIP obligation imposed upon us became effective on February 15,
2011. Part of that FIP obligation includes making a NOX BART
determination for the SJGS. To prevent a possible conflict between a
NOX visibility transport emission limitation FIP for the
SJGS and the NOX RH BART emission limitation FIP for the
SJGS, we chose to promulgate now, rather than later, the NOX
RH BART determination for the SJGS. We are combining the requirements
of section 110(a)(2)(D)(i)(II) for NOX with a NOX
BART evaluation (40 CFR 51.308) to be efficient and provide greater
certainty to the source as to the appropriate NOX controls
needed to meet those two separate but related requirements.
    This FIP also will impose a federally enforceable limit on the
emissions of SO2 from the SJGS based upon the WRAP
determination of each member state's contribution to visibility
impairment of SO2 emissions, of which New Mexico is a
member. The SJGS's existing SO2 permit does not provide the
necessary emission limits and enforceable mechanisms to ensure the
SO2 emissions used in the WRAP photochemical modeling for
the SJGS units will be met. Therefore, we assumed the SO2
emission limit used in the WRAP modeling and, by this action, make it
enforceable. This is necessary to ensure that New Mexico sources do not
interfere with efforts to protect visibility in other states pursuant
to the requirements of section 110(a)(2)(D)(i)(II) of the CAA.
    Comment: One commenter argued that EPA took too narrow an
interpretation of the term ``interfere'' in the visibility protection
context of Section 110(a)(2)(D)(i)(II) for New Mexico, and that EPA
should account for a broader range of causes of visibility impairment
when considering regulating interference with other states' visibility.
According to the commenter, EPA's action should consider future growth
in emissions from area sources such as oil and gas development as part
of evaluating interference with the visibility programs required in
other states' SIPs because the proposed New Mexico RH SIP already
reduces NOX emissions sufficiently. The commenter also
argued that pollutants other than NOX cause interference
with other states' visibility programs and should be considered instead
of reducing NOX emissions under BART because the commenter
believes NOX emissions contribute a minor portion to overall
visibility impairment.
    Response: We disagree with the assertion that we took too narrow a
view of the term ``interfere'' in Section 110(a)(2)(D)(i)(II). In the
FIP proposed and finalized in this action, we are concluding that the
New Mexico SIP contains adequate provisions to prevent such impacts on
the visibility programs of other states, except for the emissions from
the SJGS. By promulgating a FIP to impose NOX and
SO2 emission limits necessary at the SJGS to prevent such
interference, as well as to meet the requirement for BART for
NOX for this same source, EPA is addressing the requirements
of the statute. In reaching this conclusion, we considered the term
``interfere'' based upon the facts, information, and data available to
the Agency at this time.
    As we discuss in our proposal, we relied on WRAP modeling to
determine the appropriate emission limits for sources in New Mexico in
order to determine if New Mexico's emissions were interfering with
other state visibility SIPs. The states in the West, including New
Mexico, worked together through the WRAP to determine their
contribution to visibility impairment at the relevant Federal Class I
areas in the region and the emissions reductions from each State needed
to attain the reasonable progress goals for each area. Western states
are relying on the WRAP assumed reduction in emissions levels modeled
for sources in New Mexico including the SJGS in order to meet their RH
reasonable progress goals. All of the sources except for SJGS met the
WRAP assumed reduction in emissions levels modeled for New Mexico's
assigned contribution to the region's visibility impairment of Federal
class I areas. Thus, we proposed a FIP to prevent emissions from New
Mexico sources from interfering with other

states' measures to protect visibility, and to implement NOX
and SO2 emission limits necessary at one source, the SJGS,
to prevent such interference, as well as BART for NOX for
this source.
    We determined that enacting a NOX BART determination for
SJGS was necessary because the WRAP analyses showed that NOX
emissions in general and SJGS NOX emissions, specifically,
contribute significantly to haze in the West. SJGS is by far the
largest source of NOX emissions in NM. Our FIP requires
substantial reductions in NOX emissions from this source. We
agree that oil and gas development can result in emissions that could
have an impact on visibility due to increases in NOX
emissions. However, we are basing our evaluation of the potential
impacts of emissions from New Mexico sources on the WRAP analysis, and
consideration of the sources that other states would have assumed that
New Mexico intended to control as part of that modeling. The state's
initial submission for section 110(a)(2)(D)(i) indicated that the state
intended to meet its obligations with respect to the visibility prong
by means of the RH SIP. Therefore, we have examined the issue in light
of what other states would have assumed such a SIP would achieve.
Moreover, even if the impacts from the oil and gas sector were
significant, this fact would not justify a decision to not act on the
BART requirements for NOX for the SJGS, because
NOX emissions from SJGS are a significant source of
NOX emissions that interfere with other state's required
visibility programs. In addition, based on the facts and information
currently available, we believe the most effective means of ensuring
that emissions from New Mexico do not interfere with other states'
visibility programs is to require further and federally enforceable
NOX reductions and federally enforceable SO2
limits at SJGS.
    We also specifically disagree with the commenter's statement that
NOX emissions contribute only a minor portion to overall
visibility impairment. As we noted in our proposal, our modeling
indicates that the visibility impairment due to the SJGS's emissions is
primarily dominated by nitrate particulates. As our NOX BART
modeling demonstrates, reducing NOX emissions from the SJGS
will result in a 21.69 dv, cumulative improvement, across 16 Class I
areas. As the RHR states, ``States should consider a 1.0 deciview
change or more from an individual source to ``cause'' visibility
impairment, and a change of 0.5 deciviews to ``contribute'' to
impairment.'' \66\ Therefore, we do not view a cumulative visibility
impairment of 21.69 dv as an insignificant contribution. The commenter
suggests we consider future growth in emissions from area sources such
as oil and gas development as part of our control strategy. We agree
with the commenter that oil and gas activity in New Mexico produces
NOX and other emissions. We understand the WRAP is currently
reviewing and refining the emissions inventory for this sector. We will
address this matter further in our review of New Mexico's RH SIP.
---------------------------------------------------------------------------

    \66\ 70 FR 39104, 39120.
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2. BART Requirements
    Comment: One commenter states ``EPA's BART determination for the
San Juan Generating Station contravenes EPA's rules and conflicts with
the structure and purpose of CAA Section 169A.'' Following this
comment, there appears a parenthetical ``see'' reference to comments
that had been submitted from two other commenters.
    Response: The comment does not give any underlying rationale or
facts for its assertion that our action contravenes our rules and
conflicts with CAA Section 169A. We disagree with the statement,
because the NOX BART determination for the SJGS was made in
accordance with our rules and CAA requirements. The references to
subsections of other submitted comments do not appear to match with the
comments we had received. We cannot further evaluate or respond to this
comment. In any event, the other comments are separately addressed in
this document.
    Comment: One commenter states that our proposed rule must be
withdrawn because it fails to justify implementation of a SCR BART
limit. This commenter cites to a portion of American Corn Growers v.
EPA, 291 F.3d 1, 19 (DC Cir. 2002), where the DC Circuit wrote of
state's having ``broad authority over BART determinations.'' The
commenter also points to that court's discussion of legislative
history, where it stated that ``* * * Congress intended the states to
decide which sources impair visibility and what BART controls should
apply to those sources.'' Id. at 8. From this, the commenter states
that the authority of states to establish BART cannot be constrained by
us.
    Response: While a State has broad authority over a BART
determination when it is the decision maker, we similarly have broad
authority when promulgating a FIP. Because, as discussed earlier in
this notice, New Mexico did not timely formulate and submit its BART