[Federal Register: May 22, 2007 (Volume 72, Number 98)]
[Notices]
[Page 28732]
[DOCID:fr22my07-116]

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SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meeting

Federal Register Citation of Previous Announcement: [To be published].

Status: Closed Meeting.

Place: 100 F Street, NE., Washington, DC.

Date and Time of Previously Announced Meeting: Thursday, May 17, 2007
at 9:45 a.m.

Change in the Meeting:  Cancellation of Meeting.
    The Closed Meeting scheduled for Thursday, May 17, 2007 has been
cancelled.
    For further information please contact the Office of the Secretary
at<PHONE_NUMBER>.

    Dated: May 17, 2007.
Nancy M. Morris,
Secretary.
[FR Doc. E7-9779 Filed 5-21-07; 8:45 am]

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[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Notices]
[Page 31345]
[FR Doc No: 2012-12701]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2232-595]

Duke Energy Carolinas, LLC; Notice of Application Accepted for
Filing and Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection.
    a. Application Type: Non-project use of project lands and waters:
Water withdrawal.
    b. Project No.: 2232-595.
    c. Date Filed: April 19, 2012.
    d. Applicant: Duke Energy Carolina, LLC.
    e. Name of Project: Catawba-Wateree Project.
    f. Location: The proposed non-project use would be located on Lake
Norman in Lincoln County, North Carolina.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Applicant Contact: Mr. Dennis Whitaker, Duke Energy Carolinas,
LLC, Manager Lake Services, P.O. Box 1006, Charlotte, NC 28201-1006,
(704) 382-1594.
    i. FERC Contact: Ms. Andrea Claros,<PHONE_NUMBER>,
<EMAIL_ADDRESS>    j. Deadline for filing comments, motions to intervene, and
protests, is June 18, 2012.
    All documents may be filed electronically via the Internet. See, 18
CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web
site at http://www.ferc.gov/docs-filing/efiling.asp. If unable to be
filed electronically, documents may be paper-filed. To paper-file, an
original and seven copies should be mailed to: Secretary, Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426. Commenters can submit brief comments up to 6,000 characters,
without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and
contact information at the end of your comments.
    Please include the project number (P-2232-595) on any comments,
motions, or recommendations filed.
    k. Description of Request: Duke Energy Carolinas, LLC requests
Commission approval to allow Duke to authorize the Cowan's Ford Country
Club, Inc. to replace a raw water intake pipeline, used for golf course
irrigation, on Lake Norman in Lincoln County, North Carolina. An
existing pump house and water intake would be removed and replaced with
a new intake facility located within 150 feet of the existing intake,
in a community access lot, on 0.083 acres of project property. The
maximum pumping rate would increase from 320,000 gallons per day (GPD)
to 340,000 GPD, and the maximum instantaneous rate would increase from
1,050 gallon per minute (GPM) to 1,500 GPM. The increase in the maximum
instantaneous rate will allow for a reduced watering time window.
    l. Locations of the Application: A copy of the application is
available for inspection and reproduction at the Commission's Public
Reference Room, located at 888 First Street NE., Room 2A, Washington,
DC 20426, or by calling<PHONE_NUMBER>. This filing may also be viewed
on the Commission's Web site at http://www.ferc.gov/docs-filing/efiling.asp. Enter the docket number excluding the last three digits in
the docket number field to access the document. You may also register
online at http://www.ferc.gov/docs-filing/esubscription.asp to be
notified via email of new filings and issuances related to this or
other pending projects. For assistance, call 1-866-208-3676 or email
<EMAIL_ADDRESS>for TTY, call<PHONE_NUMBER>. A copy is
also available for inspection and reproduction at the address in item
(h) above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    o. Filing and Service of Responsive Documents: All filings must (1)
Bear in all capital letters the title ``COMMENTS'', ``PROTEST'', or
``MOTION TO INTERVENE'' as applicable; (2) set forth in the heading the
name of the applicant and the project number of the application to
which the filing responds; (3) furnish the name, address, and telephone
number of the person protesting or intervening; and (4) otherwise
comply with the requirements of 18 CFR 385.2001 through 385.2005. All
comments, motions to intervene, or protests must set forth their
evidentiary basis and otherwise comply with the requirements of 18 CFR
4.34(b). All comments, motions to intervene, or protests should relate
to project works which are the subject of the amendment. Agencies may
obtain copies of the application directly from the applicant. A copy of
any protest or motion to intervene must be served upon each
representative of the applicant specified in the particular
application. If an intervener files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency. A copy of all other
filings in reference to this application must be accompanied by proof
of service on all persons listed in the service list prepared by the
Commission in this proceeding, in accordance with 18 CFR 4.34(b) and
385.2010.

    Dated: May 18, 2012.
Kimberly D. Bose,
Secretary.
[FR Doc. 2012-12701 Filed 5-24-12; 8:45 am]
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[Federal Register: May 7, 2007 (Volume 72, Number 87)]
[Rules and Regulations]
[Page 25698-25708]
[DOCID:fr07my07-6]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R09-OAR-2006-0184; FRL-8308-6]
RIN 2009-AA01

Source-Specific Federal Implementation Plan for Four Corners
Power Plant; Navajo Nation

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating a
source-specific Federal Implementation Plan (FIP) to regulate emissions
from the Four Corners Power Plant (FCPP), a coal-fired power plant
located on the Navajo Indian Reservation near Farmington, New Mexico.

EFFECTIVE DATE: This rule is effective on June 6, 2007.

FOR FURTHER INFORMATION CONTACT: Rebecca Rosen, EPA Region IX, (415)
947-4152<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: EPA has established a docket for this action
under Docket ID No. R09-OAR-2006-0184. All documents in the docket are
listed in the Federal eRulemaking portal index at http://www.regulations.gov
 and are available either electronically at

http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne

Street, San Francisco, California, 94105. To inspect the hard copy
materials, please schedule an appointment during normal business hours
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.
A reasonable fee may be charged for copies.
    Throughout this document, ``we,'' ``us'' and ``our'' refer to EPA.

Table of Contents

I. Background of the Final Rule
II. Analysis of Major Issues Raised by Commenters
    A. Jurisdictional and Authority Issues
    B. Concerns About the Scope of the FIP
    C. Comments on Emissions Limits
    D. Comments on Control Requirements
III. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act
    L. Petitions for Judicial Review

I. Background of the Final Rule

    FCPP is a privately owned and operated coal-fired power plant
located on the Navajo Indian Reservation near Farmington, New Mexico.
Based on lease agreements signed in 1960, FCPP was constructed and has
been operating on real property held in trust by the federal government
for the Navajo Nation. The facility consists of five coal-fired
electric utility steam generating units with a total capacity in excess
of 2000 megawatts (MW).
    In 1999, EPA initially proposed to promulgate a FIP to regulate
emissions from FCPP. At that time, FCPP had historically achieved
certain emissions limits which had been approved by EPA into the New
Mexico SIP. See 40 CFR 52.1640. However, because the New Mexico SIP is
not approved to apply on the Navajo Indian Reservation, and because the
Navajo Nation did not have a federally applicable tribal implementation
plan (TIP), EPA proposed to promulgate a FIP to remedy the existing
regulatory gap. 64 FR 48731 (September 8, 1999) (1999 proposed FIP).
The proposed FIP would have, in essence, federalized the requirements
contained in the New Mexico SIP which FCPP had historically followed.
In explaining the basis for its proposed action, EPA stated that given
the magnitude of emissions from the plant, the Agency believed the
proposed FIP provisions were necessary and appropriate to ensure the
protection of air quality on the Reservation. 64 FR at 48733.
    Before EPA took final action on the 1999 proposed FIP, a
stakeholders group of environmental organizations (Environmental
Defense, Western Resource Advocates, and New Mexico Citizens for Clean
Air and Water), the National Park Service (NPS), and Arizona Public
Service (APS), the operating agent for FCPP, convened to discuss the
facility. The stakeholders group negotiated substantial additional
sulfur dioxide (SO2) emissions reductions which FCPP
believed it could achieve by enhancing the efficiency of its existing
SO2 scrubbers. After testing the program, the Navajo Nation
and the stakeholders group requested that EPA include these negotiated,
additional SO2 emissions reductions in the FIP. FCPP agreed
to increase the amount of SO2 emissions it was eliminating
from its exhaust stream from 72% to 88%, thereby reducing its annual
emissions of SO2 to the atmosphere by about 25,000 tons per
year.
    EPA did not finalize the proposed 1999 FIP after the stakeholders
group began negotiations. Instead, after the stakeholders group had
finished its work, EPA proposed a new FIP in September, 2006. 71 FR
53631 (September 12, 2006) (2006 proposed FIP).
    In the 2006 proposed FIP, EPA again explained that to remedy the
regulatory gap that exists with regard to FCPP, the Agency was
proposing to issue a source-specific FIP. EPA proposed to establish
federally enforceable emission limits for SO2,
NOX, PM, and opacity, and control measures for dust. For
SO2, the 2006 proposed FIP included a requirement for FCPP
to comply with a significantly lower emission limit than the one set
forth in the 1999 proposed FIP. For NOX and PM emissions,
EPA again proposed to federalize the emissions limits which FCPP has
historically followed. In other words, the primary difference between
EPA's 1999 proposed FIP and our 2006 proposed FIP is our inclusion of
requirements for FCPP to comply with the more stringent SO2
emissions limitation.
    EPA's objective at this time in promulgating a FIP for FCPP is to
remedy the existing regulatory gap described above. Today's action will
make federally enforceable the emission limitations which FCPP has
historically followed as well as ensuring that FCPP continues to
significantly reduce its emissions of SO2. This action will
help to advance the goals of ensuring continued maintenance of the
national ambient air quality standards and protecting visibility. Given
the importance of these goals and the magnitude of emissions from the
plant, EPA believes that making these limits federally enforceable is
appropriate to protect air quality on the Reservation and is
accordingly exercising its discretionary authority under sections
301(a) and 301(d)(4) of the CAA and 40

CFR 49.11(a) to promulgate a FIP containing provisions to achieve these
ends.

II. Analysis of Major Issues Raised by Commenters

    EPA received 43 comment letters on the proposal. The Navajo Nation
EPA and one environmental organization provided comments in support of
the proposed FIP. Other commenters raised concerns which focused on
EPA's jurisdiction over FCPP and our exercise of FIP authority, general
concerns about air quality and health in the Four Corners area, more
specific comments about the emission limits and control requirements in
the proposed FIP, and questions as to whether FCPP's SO2
emissions reductions were close to or equivalent to that achievable
through best available retrofit technology (BART).
    EPA held a public informational workshop and public hearing on the
proposed FIP in Farmington, New Mexico, on October 5, 2006. EPA
received approximately 36 written and e-mail comments and 7 oral
comments. Many of those commenting at the public hearing also submitted
their comments in writing.
    Our complete Response to Comments is contained in a separate
document in the docket for this rulemaking. A summary of the
significant comments and responses is provided below.

A. Jurisdictional and Authority Issues

    Comment: Several commenters raised issues regarding EPA's authority
to promulgate a FIP for FCPP. Some commenters stated that EPA does not
have the authority to promulgate the proposed FIP because FCPP's
ongoing compliance with the emissions limits in the New Mexico SIP
means that there is no regulatory gap for EPA to fill.
    Response: EPA's authority to promulgate a source-specific FIP is
based on Clean Air Act (CAA) sections 301(a) and (d)(4) and the
regulations implementing these provisions known as the Tribal Authority
Rule (TAR) at 40 CFR Part 49. CAA section 301(d)(4) provides EPA with
broad discretion to promulgate regulations directly for sources located
in Indian country,\1\ including on Indian reservations if we determine
such Federal regulations are ``necessary or appropriate'' and the Tribe
has not promulgated a TIP. Specifically, in 40 CFR 49.11, EPA
interpreted CAA section 301(d)(4) to authorize EPA to promulgate ``such
Federal implementation plan provisions as are necessary or appropriate
to protect air quality.''
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    \1\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1)
All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through
the reservation, (2) all dependent Indian communities within the
borders of the United States, whether within the original or
subsequently acquired territory thereof, and whether within or
without the limits of a State, and (3) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats
as reservations trust lands validly set aside for the use of a Tribe
even if the trust lands have not been formally designated as a
reservation.
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    As explained in the 1999 and 2006 proposed FIPs, a regulatory gap
exists with regard to FCPP. 64 FR at 43,955; 71 FR at 53,632. Although
FCPP has historically followed the rules in the New Mexico SIP, EPA has
not found that New Mexico had regulatory authority under the CAA on the
Navajo Indian Reservation and has not approved the State's
implementation plan for any area on the Reservation. It is EPA's
position that, absent an explicit finding of jurisdiction and approval
in Indian country, State and local governments lack authority under the
CAA over air pollution sources, and the owners or operators of air
pollution sources, throughout Indian country. See 63 FR 7254, 7259
(February 12, 1998) (responding to comment that EPA should ``
`grandfather' existing facility subject to state authority so that
states continue to regulate those facilities until the affected parties
all agree cooperatively to a transition from state to tribal
jurisdiction''). Therefore, the New Mexico SIP does not apply to FCPP
and there is a regulatory gap.
    EPA is exercising its discretion to promulgate emission limitations
for FCPP to close this regulatory gap in light of the magnitude of the
emissions of NOX, SO2, and PM from FCPP. This FIP
will help to ensure maintenance of the NAAQS and progress towards
meeting the national visibility goal and help to maintain consistent
standards on the Navajo Indian Reservation and its neighboring States.
    The source-specific FIP published today is based on the same CAA
authority that EPA has used elsewhere in rulemakings and that has been
affirmed by the courts. EPA's interpretation of its authority in the
TAR was affirmed by the U.S. Court of Appeals for the District of
Columbia Circuit in Arizona Public Service Co. v. EPA, 211 F.3d 1280
(D.C. Cir. 2000), cert. denied, 121 S. Ct. 1600 (2001). That court also
upheld EPA's authority to issue operating permits to major stationary
sources located in Indian country under Title V of the CAA, pursuant to
regulations at 40 CFR Part 71. State of Michigan v. EPA, 268 F.3d 1075
(D.C. Cir. 2001). In addition, in an unpublished opinion in December
2006, the Ninth Circuit Court of Appeals found that EPA's promulgation
of a FIP establishing agricultural burning rules that applied to some,
but not all reservations in the Northwestern United States was not
arbitrary and capricious. Safe Air for Everyone v. EPA, No. 05-73383
(9th Cir., Dec. 8, 2005). A copy of the unpublished opinion is in our
docket.
    EPA has used its authority in CAA sections 301(a) and (d), as
implemented through 40 CFR Part 49, to issue a number of FIPs to
address air pollution concerns at specific facilities located in Indian
country. See, e.g., Federal Implementation Plan for Tri-Cities
Landfill, Salt River Pima-Maricopa Indian Community, 40 CFR 49.22 (64
FR 65663 (November 23, 1999)); Federal Implementation Plan for the
Astaris-Idaho LLC Facility (formerly owned by FMC Corporation) in the
Fort Hall PM10 Nonattainment Area, 40 CFR 49.10711 (65 FR
51412 (August 23, 2000).
    Therefore, we disagree with those comments challenging EPA's
authority to promulgate a FIP for FCPP.

B. Concerns About the Scope of the FIP

    Comment: The overwhelming majority of commenters indicated that in
issuing a FIP for FCPP, EPA should go beyond merely federalizing the
emission limits which FCPP has historically followed. Most commenters
raised concerns about poor air quality, deteriorating visibility and
high rates of cancer, asthma, and other respiratory problems in the
Four Corners area, and a number requested that EPA prohibit any
emissions from the facility rather than merely federalizing the limits
the facility has historically followed. Other commenters urged EPA to
take regulatory action to regulate or to further reduce emissions of
SO2, NOX, PM, mercury, and ``toxic emissions.''
Commenters raised a variety of general concerns regarding health
impacts associated with FCPP, including the public health and/or
environmental impacts of fugitive dust from coal mining, mercury (Hg)
and carbon dioxide (CO2, greenhouse gases). Another
commenter argued that in issuing a FIP for FCPP, EPA must comply not
only with the requirements of section 301 of the CAA but also ensure
through the FIP process that FCPP is in compliance with all applicable
federal and state ambient standards by complying with the requirements
of section 110 of the CAA addressing State implementation plans.

    Response: EPA is taking action to close the regulatory gap that
exists with respect to FCPP. As explained above, at present there is
not currently an approved implementation plan covering FCPP. EPA's
exercise of authority in issuing this FIP is based on the Agency's
conclusion that it is appropriate to protect air quality on the
Reservation by remedying the lack of federally enforceable limits
applicable to this facility. As such, our action is limited to making
enforceable those emissions limits which FCPP has historically
followed, or in the case of SO2, an emission limit FCPP has
achieved following a successful test program to determine if the
existing scrubbers at FCPP could be improved.
    Today's action is an important step in protecting air quality on
the Reservation. As noted in the proposal, this action will contribute
towards ensuring continued maintenance of the NAAQS and towards
protecting visibility. EPA acknowledges that additional regulatory
actions by EPA may be necessary or appropriate in the future to further
protect air quality on the Navajo Reservation, depending on, among
other things, conditions on the Reservation and the decisions of the
Navajo Nation to exercise its discretionary authority under the CAA.

C. Comments on Emissions Limits

1. Comments on Emissions Limits for Pollutants Other Than
SO2
    Comment: Several commenters urged EPA to take regulatory action in
addition to the proposed FIP to require reductions of NOX
and PM emissions from FCPP. In particular, several commenters urged EPA
to undertake a BART determination for FCPP's NOX emissions.
    Response: EPA agrees that it may be necessary or appropriate in a
future rulemaking to require FCPP to reduce its NOX or PM
emissions below those levels which were historically contained in the
New Mexico SIP or which are necessary to comply with the Acid Rain
program. Today's rule, however, does not address the requirements of
EPA's nationally applicable Regional Haze rule, codified at 40 CFR
51.308, which contains specific implementation plan requirements
regarding BART determinations.\2\
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    \2\ Such implementation plans are not required from the States
until December 17, 2007[0]. Tribes are not subject to any
mandatory deadlines to submit regional have implementation plans.
See 40 CFR 49.7(c); 64 FR at 35758 (``For example, unlike States,
tribes are not required by the TAR to adopt and implement CAA plans
or programs, thus tribes are not subject to mandatory deadlines for
submittal of implementation plans.''
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    EPA intends to apply any requirements for FCPP to achieve a
reduction in its NOX or PM emissions in a separate
rulemaking. EPA will begin gathering information from FCPP to determine
what measures, if any, are appropriate for the facility to implement to
reduce its NOX and PM emissions to comply with the Regional
Haze Rule's requirements for BART.
2. Comments on Emission Limit for SO2
    Comment: A number of commenters requested EPA to promulgate a FIP
that would require FCPP to reduce its SO2 emissions to
greater than 88% SO2 removal from the exhaust gas. Some
comments questioned the method which EPA specified FCPP should use to
determine how much SO2 was being removed or that removal
efficiency should be determined by SO2 CEMs located before
and after the scrubber. The commenters noted that FCPP should not be
able to count as ``removed'' sulfur that is retained in bottom and
flyash.
    Response: The removal efficiency that FCPP historically met (72%)
and the increased efficiency required in this FIP (88%) are based on
comparison of the percentage of sulfur in the coal that FCPP is
combusting and the outlet concentration of sulfur expressed as
SO2. The commenters are correct that some of the sulfur is
retained in bottom and flyash. However, comparing coal sampling for
sulfur content to the SO2 emitted at the stacks remains the
most technically appropriate method of demonstrating compliance. FCPP
uses a coal sampling tower that meets American Society of Testing and
Materials (ASTM) specifications for obtaining a representative sample
of the coal for sulfur analysis prior to combustion.
    EPA agrees with one commenter that the regulatory language
establishing the 88% removal efficiency should be clarified in the
final FIP. Instead of stating the limit as ``12 percent of that which
is produced by the coal burning equipment * * * '', EPA will change the
FIP to reflect that the SO2 limit is based on limiting
emissions to 12% of the sulfur in the coal.
3. Comments on Whether FCPP's 88% Reduction of SO2 Emissions
Is Close to or Equivalent to BART
    Comment: EPA received several comments regarding our statement in
the preamble to the 2006 proposed FIP that ``EPA believes that the
SO2 controls proposed today for FCPP are close to or the
equivalent of a regional haze BART determination for SO2.
This takes into consideration the early reductions that this action
will achieve and the modifications to the existing SO2
scrubbers.'' One commenter called upon EPA to conduct a full
SO2 BART analysis before taking final action. Another
commenter disagreed with our statement that 88% control of
SO2 for FCPP is ``close to or the equivalent of'' BART and
called upon EPA to require FCPP to meet what it characterized as the
applicable presumptive BART requirement. In contrast, other comments
supported EPA's statement or echoed the importance of achieving
SO2 emissions reductions from FCPP now rather than on the
schedule anticipated for BART determinations.
    Response: EPA is not making a BART determination for FCPP today. As
noted in the preamble to the proposed FIP, the level of control in the
FIP for FCPP is ``close to or the equivalent'' of BART for this source.
EPA agrees that if the Agency were to undertake a case-by-case BART
analysis, BART could potentially be determined to be a greater level of
control than 88% SO2 removal.\3\ However, any case-by-case
BART analysis would be subject to the timeframes needed to implement
such controls. As explained above, under the TAR, EPA has the
discretion to promulgate FIPs, as necessary or appropriate, within
reasonable timeframes to protect air quality in Indian country. Id. In
today's rulemaking EPA is exercising its discretion under 40 CFR 49.11
to find that it is neither necessary or appropriate at this time to
undertake a BART determination for SO2 for FCPP given the
timing of the substantial SO2 reductions resulting from this
FIP. Moreover, as explained in the preamble to the 2006 proposed FIP,
there are only two major sources of SO2 on the Navajo
Reservation that are potentially subject to the BART requirements--
Navajo Generating Station and FCPP. 71 FR at 53632. EPA determined
previously that the SO2 emission limits in the 1991 FIP for
the Navajo Generating Station provide for greater reasonable progress
toward the national visibility goal than would BART. 71 FR at 53633. As
explained above, given that the SO2

controls for FCPP immediately achieve significant reductions in
SO2 comparable to what could ultimately be achieved through
a formal BART determination, EPA believes that it will not be necessary
or appropriate to develop a regional haze plan to address
SO2 for the Navajo Nation in the near term.
---------------------------------------------------------------------------

    \3\ EPA disagrees with the comment that the BART Guidelines, 70
FR 39104, 39171 (July 6, 2005) established a presumption that BART
at FCPP is 95% control for SO2. Although the BART
Guidelines did establish a presumption of either 95% control for
SO2 or 0.15 lbs/MMBtu for large power plants, this
presumption applies only to power plants that are currently
uncontrolled or achieving less than 50% control of SO2.
Id. As indicated in the preamble to the proposed FIP, this
presumption thus does not apply to power plants, such as FCPP, with
existing SO2 controls achieving at least 50% removal
efficiency. 71 FR at 53633; see also 70 FR at 39171.
---------------------------------------------------------------------------

    The Navajo Nation EPA has specifically requested EPA to take this
action, and in doing so stated: ``Given the results of the APS study,
the Navajo Nation agrees that an 88% SO2 removal rate for
SO2 at Four Corners Power Plant appears to be equivalent to
BART, especially taking into account the early reductions that will be
achieved.'' Letter from Stephen Etsitty, to Deborah Jordan, dated
December 6, 2005. EPA generally agrees with the Navajo Nation's
assessment and has, therefore, taken this step in regulating emissions
on the Navajo Nation reservation.
4. Comments on Opacity Emission Limits
    Comment: One commenter objected to the lack of a 20% opacity
standard for Units 1, 2, and 3. Other comments objected to the FIP's
exemption of water vapor from the 20% opacity standard on Units 4 and 5
and also criticized exempting the Units from compliance with the
opacity limit during startup and shutdown when the units dropped below
300 MW. In contrast, another commenter stated that the opacity
requirements on these units are overly restrictive, especially as they
pertain to periods of malfunction.
    Response: Opacity limits are generally applied to ensure a source
is meeting its PM emissions limit. For Units 1, 2, and 3, however, an
opacity limit (coupled with a continuous opacity monitors (COMS)) would
not be an appropriate method for ensuring compliance with the PM
emissions limits for these units. This is because Units 1, 2, and 3 use
venturi scrubbers to reduce PM emissions; due to interference from
steam in the exhaust, COMS can not be used to monitor opacity on these
stacks. Given this, EPA finds that the use of opacity limits to ensure
that FCPP is meeting its PM emissions limits is not appropriate for
these units. EPA continues to find, and is finalizing in today's
action, that parametric monitoring of each venturi scrubber is the best
method of assuring proper operation to minimize the emissions of PM.
    Units 4 and 5 have always operated with an exemption from opacity
limits during shutdown. The commenter has not provided any information
demonstrating that exempting these units during shutdown harms the
environment or public health.
    With regards to comments requesting an exemption from the opacity
limit during malfunctions, EPA has explained below its reasons for
providing an affirmative defense for these periods. With regards to the
comment on the phrasing for exempting water vapor, EPA agrees that this
should be changed to uncombined water droplets. With respect to the
commenter requesting a demonstration that the opacity was caused by
uncombined water droplets, EPA believes this is not necessary. The
opacity limit for this facility is set to assure proper operation of
the baghouse. The rule will require that the facility assure that there
has been no bypass through the bypass damper during these periods of
assumed water droplet interference. The facility will be required to
report these as apparent excess emissions in their quarterly excess
emissions report. If anything inappropriate shows up in the reports,
EPA can follow up to get better clarification of the issue.

D. Comments on Control Requirements

    Comment: One commenter was concerned that the heat input for the
FCPP Plant may have increased over a number of years as indicated from
the ``EPA Acid Rain Scorecard'' and wanted to know if this increase
constituted a major modification triggering permitting.
    Response: EPA is undertaking this rulemaking pursuant to our
rulemaking authority established in CAA sections 301(a) and 301(d) to
promulgate source-specific FIPs in Indian Country. EPA is not
addressing in today's action the status of this source with respect to
any need for major source permitting or whether or not a modification
had occurred at the plant.
    We do note that changes in the heat input reflected by the ``EPA
Acid Rain Scorecard'' do not necessarily indicate that an electric
generating unit (EGU) has made a major modification. For example, the
methodology for determining heat input to EGUs used in the Scorecard
changed with the 1995 data. For the years before this, the Scorecard
relied on coal consumption data provided to the EIA, while from 1995 on
it was determined by flow measurements in the stack and calculated
based on 40 CFR Part 60, Appendix A, Method 19.
    Comment: One commenter questions whether or not the current method
of flyash disposal is safe.
    Response: The only regulatory action in this rule regarding flyash
addresses the generation of dust while handling the flyash on site. The
rule is imposing a 20% opacity limit on transfer points for flyash.
This will cover the ash that is being sold for use as an additive to
cement and the process for mixing of flyash and scrubber sludge for
disposal at the mines. This regulation does not evaluate or control the
method of disposal at the mine.
    Comment: One commenter questions whether or not the facility was
ever exempted from opacity monitoring as required and then eligible for
exemption under 40 CFR 75.10(a) and 40 CFR 75.14(b), respectively.
    Response: EPA is not aware that there was any specific exemption
requested or granted to this facility. However, EPA has had extensive
experience inspecting and negotiating with this plant since the early
1990's. EPA has been aware that even to the extent FCPP has followed
the New Mexico rules, the three venturi scrubbed units (1, 2, and 3)
have had no opacity limit and no opacity monitoring in the stacks.
These units have venturi scrubbers that cannot be bypassed while the
unit is in operation and the stacks have an exhaust gas stream that is
always saturated. If a specific exemption was required, EPA would grant
it for these three units upon request by the facility.
    Comment: APS has commented that parametric monitoring should not be
required by this rule, but that EPA should wait until Compliance
Assurance Monitoring (CAM) is required by the facility's Title V
permit. The commenter goes on to say if parametric monitoring is
required that there should be a six month schedule for installation and
shakedown of the equipment.
    Response: EPA disagrees with the comment that EPA should wait to
require the parametric monitoring under CAM. EPA believes that newly
created applicable requirements, such as the emissions limitations in
the FCPP FIP, should establish adequate monitoring, recordkeeping, and
reporting that will assure compliance. It would not be appropriate to
establish new applicable requirements (in the form of FCPP FIP
requirements) that lack compliance-assuring monitoring, recordkeeping,
and reporting requirements. Therefore, FCPP should establish parametric
monitoring, and recordkeeping and reporting requirements, in
conjunction with this source-specific FIP rule.
    CAM is designed as a gap filling mechanism where the parametric
monitoring required for an applicable requirement is insufficient to
ensure compliance. All rules, such as the FCPP FIP, should have
sufficient monitoring to assure compliance rather than rely on

the gap filling anticipated by CAM. EPA believes that the parametric
monitoring is the most appropriate method to assure continuous
compliance with the PM limits in this rule for Units 1, 2, and 3. EPA
concurs that FCPP should be allowed a six month period to comply with
this requirement and the final regulatory language reflects this.
    Comment: FCPP commented that its emissions during startup, shutdown
and malfunction events should be exempt from the emissions limits, and
therefore not considered violations, rather than subject to an
affirmative defense for penalties.
    Response: EPA acknowledges the New Mexico SIP contained an
exemption for these emissions. However, in our 1999 proposed FIP, EPA
recognized that the New Mexico SIP's exemption of startup, shutdown and
malfunction emissions from FCPP was in error. The 1999 proposed FIP
contained a provision similar to the affirmative defense provision in
the 2006 proposed FIP for malfunction events and alternate emissions
limits for startup.
    EPA has set forth its position on numerous occasions stating that
emissions during startup, shutdown and malfunction events are
considered violations of the underlying emissions limitations. For
startup and shutdown events, EPA may set alternate limits where it is
technically infeasible for the equipment to meet the emissions limit
for a defined period of time. Such alternate startup and shutdown
limits are not exemptions. For excess emissions resulting from
malfunctions, EPA's longstanding position, as reflected in numerous
policy documents and rulemakings, is that those emissions are
violations of the underlying requirement but that the regulatory agency
may provide that the violator may assert an affirmative defense to a
claim for penalties based on the affirmative defense language such as
we proposed.
    FCPP's arguments on the issue, which are legal rather than
technical, boil down to: (1) The CAA should only require excess
malfunction emissions to be violations if those emissions would cause a
violation of the NAAQS, (2) it is unfair to find a violation where the
emissions are sudden and unavoidable, (3) the requirement to take all
steps and to do everything possible renders the affirmative defense
provision a ``nullity,'' and (4) the provision improperly usurps the
judicial function of establishing the burden of proof. In response to
the first point, the CAA contains numerous requirements that cannot be
directly correlated with an exceedance of the NAAQS. (See, e.g. 40
U.S.C. 7410(a)(2) (requirements for SIPs).) Furthermore, NAAQS
violations are rarely based on emissions from just one source, but
rather from emissions from several or many sources. As to FCPP's second
point, EPA agrees that penalties may not be appropriate where a
malfunction was beyond the source's control and the source has taken
all necessary actions to minimize emissions during the malfunction and
to quickly remedy the problem. However, EPA does not agree that it is
unfair to allow for claims for injunctive relief where a malfunction
has occurred. The criteria ensure that these conditions are met before
a source may be relieved from paying penalties while also allowing for
claims for injunctive relief to proceed. On the third point, we
disagree. The criteria represent reasonable mechanisms that sources
should have in place to minimize and mitigate any adverse effects from
malfunctions. For the fourth point, we are unclear what the commenter
means by saying the defense ``usurps the judicial function of
establishing burden of proof.'' However, we think that each party bears
the appropriate burden in any enforcement case. The party seeking to
enforce a claim bears that burden of proving that excess emissions
occurred to establish a violation. FCPP may raise as a defense to
penalties that the violation was unavoidable and FCPP took appropriate
preventive and corrective action. The court retains its function of
determining whether each party has met its burden. Therefore, EPA is
finalizing the language proposed in the FIP allowing an affirmative
defense for excess emissions resulting from malfunctions.
    Comment: FCPP also commented that the FIP should not become
effective until 18 months following promulgation because EPA's 2006
proposed FIP contained a new 20% opacity requirement for certain dust-
generating activities.
    Response: EPA agrees that FCPP may have 18 months to develop the
necessary controls to ensure it does not exceed 20% opacity from its
dust generating activities. EPA also agrees that FCPP may have the
requested additional time to develop a parametric monitoring plan and
to install CEMS and collect adequate data to demonstrate compliance
with the SO2 emission limit.
    Comment: FCPP commented that it did not agree with EPA's option in
the proposed preamble to impose a 40% opacity limit for Units 1, 2, and
3.
    Response: EPA agrees for the reasons discussed above concerning why
EPA will not impose a 20% opacity limit on Units 1, 2, and 3.

III. Administrative Requirements

A. Executive Order 12866

Regulatory Planning and Review

    Under Executive Order (E.O.) 12866, 58 FR 51735 (October 4, 1993),
all ``regulatory actions'' that are ``significant'' are subject to
Office of Management and Budget (OMB) review and the requirements of
the Executive Order. A ``regulatory action'' is defined as ``any
substantive action by an agency (normally published in the Federal
Register) that promulgates or is expected to result in the promulgation
of a final rule or regulation, including * * * notices of proposed
rulemaking.'' A ``regulation or rule'' is defined as ``an agency
statement of general applicability and future effect,* * *''
    The FIP is a ``significant regulatory action'' because it raises
novel legal or policy issues. Nevertheless, after reviewing information
regarding this action, the Office of Management and Budget waived
review of this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Under the Paperwork Reduction Act, a ``collection of information'' is
defined as a requirement for ``answers to * * * identical reporting or
recordkeeping requirements imposed on ten or more persons * * *'' 44
U.S.C. 3502(3)(A). Because the FIP applies to a single facility, FCPP,
the Paperwork Reduction Act does not apply. See 5 CFR 1320(c).
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control

numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of this final action on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The FIP for
FCPP being finalized today does not impose any new requirements on
small entities. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773
F.2d 327 (D.C. Cir. 1985)

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 04-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under UMRA section 202, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed rules and for final rules for which EPA
published a notice of proposed rulemaking, if those rules contain
``federal mandates'' that may result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year. If UMRA section 202
requires a written statement, UMRA section 205 generally requires EPA
to identify and consider a reasonable number of regulatory
alternatives. Under UMRA section 205, EPA must adopt the least costly,
most cost-effective, or least burdensome alternative that achieves the
objectives of the rule, unless the Regional Administrator publishes
with the final rule an explanation why EPA did not adopt that
alternative. The provisions of UMRA section 205 do not apply when they
are inconsistent with applicable law. UMRA section 204 requires EPA to
develop a process to allow elected officers of State, local, and Tribal
governments (or their designated, authorized employees), to provide
meaningful and timely input in the development of EPA regulatory
proposals containing significant Federal intergovernmental mandates.
    EPA has determined that the final FIP contains no Federal mandates
on State, local or Tribal governments, because it will not impose any
additional enforceable duties on any of these entities. EPA further has
determined that the final FIP is not likely to result in the
expenditure of $100 million or more by the private sector in any one
year. Although the final FIP imposes enforceable duties on an entity in
the private sector, the costs are expected to be minimal. Consequently,
UMRA sections 202, 204, and 205 do not apply to the final FIP.
    Before EPA establishes any regulatory requirements that might
significantly or uniquely affect small governments, it must have
developed under UMRA section 203 a small government agency plan. The
plan must provide for notifying potentially affected small governments,
enabling officials of affected small governments to have meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
    EPA has determined that the final FIP will not significantly or
uniquely affect small governments, because it imposes no requirements
on small governments. Therefore, the requirements of UMRA section 203
do not apply to the final FIP. Nonetheless, EPA worked closely with
representatives of the Tribe in the development of today's action.

E. Executive Order 13132: Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications is defined in the Executive Order to include regulations
that have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
Under Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
    This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely approves a State rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires
EPA to develop ``an accountable process to ensure meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' Under Executive Order 13175, to the
extent practicable and permitted by law, EPA may not issue a regulation
that has tribal implications, that imposes substantial direct
compliance costs on Indian tribal governments, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay direct compliance costs incurred by tribal governments, or EPA
consults with tribal officials early in the process of developing the
proposed regulation and develops a tribal summary impact statement. In
addition, to the extent practicable and permitted by law, EPA may not
issue a regulation that has tribal

implications and pre-empts tribal law unless EPA consults with tribal
officials early in the process of developing the proposed regulation
and prepares a tribal summary impact statement.
    EPA has concluded that this final rule may have tribal implications
because it will impose federally enforceable emissions limitation on a
major stationary source located and operating on the Navajo
reservation. However, this final rule will neither impose substantial
direct compliance costs on tribal governments nor pre-empt Tribal law
because the final FIP imposes obligations only on the owner or operator
of FCPP.
    EPA has also consulted extensively with officials of the Navajo
Nation in the process of developing this regulation. EPA had
discussions with Tribal representatives during proposal of the FIP in
1999. By letter dated December 5, 2005, the Navajo Nation EPA supported
the action taken in this FIP. Tribal officials attended the public
information workshop and public hearing on the proposed FIP. Therefore,
EPA has allowed Navajo Nation to provide meaningful and timely input
into development of this FIP.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
    This rule also is not subject to Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule
implementing a Federal standard.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub L. 104-113, 12 (10) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. VCS are technical standards
(e.g., materials specifications, test methods, sampling procedures and
business practices) that are developed or adopted by the VCS bodies.
The NTTAA directs EPA to provide Congress, through annual reports to
OMB, with explanations when the Agency decides not to use available and
applicable VCS.
    Consistent with the NTTAA, the Agency conducted a search to
identify potentially applicable VCS. For the measurement of the sulfur
in the coal for calculating the efficiency of the SO2
scrubbers for FCCP, EPA proposes to require use of ASTM standards. FCCP
would have the ability to choose an applicable ASTM standard for both
the coal sample collection and the sulfur in coal analysis.
    In regard to the remaining measurement needs as listed below, there
are a number of VCS that appear to have possible use in lieu of the EPA
test methods and performance specifications (40 CFR Part 60, Appendices
A and B) noted next to the measurement requirements. It would not be
practical to specify these standards in the current rulemaking due to a
lack of sufficient data on equivalency and validation and because some
are still under development. However, EPA's Office of Air Quality
Planning and Standards is in the process of reviewing all available VCS
for incorporation by reference into the test methods and performance
specifications of 40 CFR Part 60, Appendices A and B. Any VCS so
incorporated in a specified test method or performance specification
would then be available for use in determining the emissions from this
facility. This will be an ongoing process designed to incorporate
suitable VCS as they become available.
    Particulate Matter Emissions--EPA Methods 1 though 5
    Opacity--EPA Method 9 and Performance Specification Test 1 for
Opacity Monitoring
    SO2--EPA Method 6C and Performance Specification 2 for
Continuous SO2 Monitoring
    NOX--EPA Method 7E and Performance Specification 2 for
Continuous NOX Monitoring.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes
Federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it strengthens
the level of protection provided to human health or the environment.
This final rule requires emissions reductions and makes emissions
limitations federally enforceable for a major stationary source.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2). This rule will be effective June 6, 2007.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 6, 2007. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition

for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See CAA section
307(b) (2)).

List of Subjects in 40 CFR Part 49

    Environmental protection, Administrative practice and procedure,
Air pollution control, Indians, Intergovernmental relations, Reporting
and recordkeeping requirements.

    Dated: April 30, 2007.
Stephen Johnson,
Administrator.

0
Title 40, chapter I of the Code of Federal Regulations is amended as
follows:

PART 49--[AMENDED]

0
1. The authority citation for part 49 continues to read as follows:

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

0
2. Section 49.23 is added to read as follows:

Sec.  49.23  Federal Implementation Plan Provisions for Four Corners
Power Plant, Navajo Nation.

    (a) Applicability. The provisions of this section shall apply to
each owner or operator of the coal burning equipment designated as
Units 1, 2, 3, 4, and 5 at the Four Corners Power Plant (the Plant) on
the Navajo Nation Indian Reservation located in the Four Corners
Interstate Air Quality Control Region (see 40 CFR 81.121).
    (b) Compliance Dates. Compliance with the requirements of this
section is required upon the effective date of this rule unless
otherwise indicated by compliance dates contained in specific
provisions.
    (c) Definitions. For the purposes of this section:
    (1) Affirmative defense means, in the context of an enforcement
proceeding, a response or defense put forward by a defendant, regarding
which the defendant has the burden of proof, and the merits of which
are independently and objectively evaluated in a judicial or
administrative proceeding.
    (2) Air pollution control equipment includes baghouses, particulate
or gaseous scrubbers, and any other apparatus utilized to control
emissions of regulated air contaminants which would be emitted to the
atmosphere.
    (3) Business Day. Business day means a normal working day,
excluding weekends and Federal Holidays.
    (4) Daily average means the arithmetic average of the hourly values
measured in a 24-hour period.
    (5) Excess emissions means the emissions of air contaminants in
excess of an applicable emissions limitation or requirement.
    (6) Heat input means heat derived from combustion of fuel in a Unit
and does not include the heat input from preheated combustion air,
recirculated flue gases, or exhaust gases from other sources. Heat
input shall be in accordance with 40 CFR Part 75.
    (7) Malfunction means any sudden and unavoidable failure of air
pollution control equipment or process equipment or of a process to
operate in a normal or usual manner. Failures that are caused entirely
or in part by poor maintenance, careless operation, or any other
preventable upset condition or preventable equipment breakdown shall
not be considered malfunctions. This rule provides an affirmative
defense to actions for penalties brought for excess emissions that
arise during certain malfunction episodes. An affirmative defense is
not available if during the period of excess emissions, there was an
exceedance of the relevant ambient air quality standard that could be
attributed to the emitting source.
    (8) Owner or Operator means any person who owns, leases, operates,
controls, or supervises the Plant or any of the coal burning equipment
designated as Units 1, 2, 3, 4, or 5 at the Plant.
    (9) Oxides of nitrogen (NOX) means the sum of nitric
oxide (NO) and nitrogen dioxide (NO2) in the flue gas,
expressed as nitrogen dioxide.
    (10) Plant-wide basis means total stack emissions of any particular
pollutant from all coal burning equipment at the Plant.
    (11) Regional Administrator means the Regional Administrator of the
Environmental Protection Agency (EPA) Region 9 or his/her authorized
representative.
    (12) Shutdown means the cessation of operation of any air pollution
control equipment, process equipment, or process for any purpose.
Specifically, for Units 1, 2, or 3, shutdown begins when the unit drops
below 40 MW net load with the intent to remove the unit from service.
For Units 4 or 5, shutdown begins when the unit drops below 300 MW net
load with the intent to remove the unit from service.
    (13) Startup means the setting into operation of any air pollution
control equipment, process equipment, or process for any purpose.
Specifically, for Units 1, 2, or 3, startup ends when the unit reaches
40 MW net load. For Units 4 or 5, startup ends when the unit reaches
400 MW net load.
    (14) 24-hour period means the period of time between 12:01 a.m. and
12 midnight.
    (d) Emissions Standards and Control Measures--(1) Sulfur Dioxide.
No owner or operator shall discharge or cause the discharge of sulfur
dioxide (SO2) into the atmosphere in excess of:
    (i) 12.0 percent of the potential combustion concentration assuming
all of the sulfur in the coal is converted to SO2. This
percent emitted is determined by a daily calculation of the plantwide
heatinput weighted annual average.
    (ii) 17,900 pounds of total SO2 emissions per hour
averaged over any consecutive three (3) hour period, determined on a
plant-wide basis.
    (2) Particulate Matter. No owner or operator shall discharge or
cause the discharge of particulate matter from any coal burning
equipment into the atmosphere in excess of 0.050 pounds per million
British thermal unit (lb/MMBtu) of heat input (higher heating value),
as averaged from three sampling runs, each at 60 minutes in duration,
each collecting a minimum sample of 30 dry standard cubic feet.
    (3) Dust. Each owner or operator shall operate and maintain the
existing dust suppression methods for controlling dust from the coal
handling and storage facilities. Within ninety (90) days after
promulgation of this section, the owner or operator shall submit to the
Regional Administrator a description of the dust suppression methods
for controlling dust from the coal handling and storage facilities,
flyash handling and storage, and road sweeping activities. Within 548
days of promulgation of this section each owner or operator shall not
emit dust with an opacity greater than 20 percent from any crusher,
grinding mill, screening operation, belt conveyor, or truck loading or
unloading operation.
    (4) Opacity. No owner or operator shall discharge or cause the
discharge of emissions from the stacks of Units 4 and 5 into the
atmosphere exhibiting greater than 20% opacity, excluding uncombined
water droplets, averaged over any six (6) minute period, except for one
six (6) minute period per hour of not more than 27% opacity.
    (5) Oxides of nitrogen. No owner or operator shall discharge or
cause the discharge of NOX into the atmosphere.
    (i) From either Unit 1 or 2 in excess of 0.85 lb/MMBtu of heat
input per unit, and from either Units 3, 4, or 5 in excess of 0.65 lb/
MMBtu of heat input per unit averaged over any successive thirty (30)
boiler operating day period;
    (ii) In excess of 335,000 lb per 24-hour period when coal burning
equipment is operating, on a plant-wide basis; for each hour when coal
burning equipment

is not operating, this limitation shall be reduced. If the unit which
is not operating is Unit 1, 2, or 3, the limitation shall be reduced by
1,542 lb per hour for each unit which is not operating. If the unit
which is not operating is Unit 4 or 5, the limitation shall be reduced
by 4,667 lb per hour for each unit which is not operating.
    (e) Testing and Monitoring. Upon completion of the installation of
continuous emissions monitoring systems (CEMS) software as required in
this section, compliance with the emissions limits set for SO2 and
NOX shall be determined by using data from a CEMS unless
otherwise specified in paragraphs (e)(2) and (e)(4) of this section.
Compliance with the emissions limit set for particulate matter shall be
tested annually, or at such other time as requested by the Regional
Administrator, based on data from testing conducted in accordance with
40 CFR part 60, appendix A, Methods 1 through 5, or any other method
receiving prior approval from the Regional Administrator. Compliance
with the emissions limits set for opacity shall be determined by using
data from a Continuous Opacity Monitoring System (COMS) except during
saturated stack conditions (uncombined water droplets). If the baghouse
is operating within its normal operating parameters, the baghouse is
not fully closed, and a high opacity reading occurs, it will be
presumed that the occurrence was caused by saturated stack conditions
and shall not be considered a violation.
    (1) The owner or operator shall maintain and operate CEMS for SO2,
NO or NOX, a diluent and, for Units 4 and 5 only, COMS, in
accordance with 40 CFR 60.8 and 60.13, and appendix B of 40 CFR part
60. Within six (6) months of promulgation of this section, the owner or
operator shall install CEMS and COMS software which complies with the
requirements of this section. The owner or operator of the Plant may
petition the Regional Administrator for extension of the six (6) month
period for good cause shown. Completion of 40 CFR part 75 monitor
certification requirements shall be deemed to satisfy the requirements
under 40 CFR 60.8 and 60.13 and appendix B of part 60. The owner or
operator shall comply with the quality assurance procedures for CEMS
found in 40 CFR part 75, and all reports required thereunder shall be
submitted to the Regional Administrator. The owner or operator shall
provide the Regional Administrator notice in accordance with 40 CFR
75.61.
    (2) Sulfur Dioxide. For the purpose of determining compliance with
this section, the sulfur dioxide inlet concentration (in lb/MMBtu)
shall be calculated using the daily average percent sulfur and Btu
content of the coal combusted. The inlet sulfur concentration and Btu
content shall be determined in accordance with American Society for
Testing and Materials (ASTM) methods or any other method receiving
prior approval from the Regional Administrator. A daily fuel sample
shall be collected using the coal sampling tower conforming to the ASTM
specifications. The analyses shall be done on the daily sample using
ASTM methods or any other method receiving prior approval from the
Regional Administrator.
    (i) The inlet sulfur dioxide concentration shall be calculated
using the following formula:

Is = 2(%Sf)/GCV x 104 English units

Where:

Is = sulfur dioxide inlet concentrations in pounds per
million Btu;
%Sf = weight
percent sulfur content of the fuel; and
GCV = Gross calorific value for the fuel in Btu per pound.

    (ii) The total pounds of SO2 generated by burning the
coal shall be calculated by multiplying the SO2 inlet
concentration by the daily total heat input determined by the 40 CFR
Part 75 acid rain monitoring. This will determine the pounds of
SO2 produced per day. The SO2 emitted from the
stacks shall be determined by adding the daily SO2 emissions
from each stack as determined by the 40 CFR Part 75 acid rain monitors.
Compliance with the emission limit shall be determined for each day by
adding that day's SO2 emissions and that day's
SO2 produced to the previous 364 days and then dividing the
365 days of emissions by the 365 days of SO2 produced.
Compliance is demonstrated if this fraction, converted to a percent, is
equal to or less than 12.0 percent. The data from the 40 CFR Part 75
monitors shall not be bias adjusted. If a valid SO2 pounds
per hour or heat input is not available for any hour for a unit, that
heat input and SO2 pounds per hour shall not be used in the
calculation of the annual plant-wide average.
    (3) Particulate Matter. Particulate matter emissions shall be
determined by averaging the results of three test runs. Each test run
shall be sixty (60) minutes in duration and shall collect a minimum
volume of thirty (30) dry standard cubic feet. Within six (6) months of
promulgation of this section, particulate matter testing shall be
conducted annually and at least six (6) months apart, with the
equipment within 90 percent of maximum operation in accordance with 40
CFR 60.8 and Appendix A to 40 CFR Part 60. The owner or operator shall
submit written notice of the date of testing no later than 21 days
prior to testing. Testing may be performed on a date other than that
already provided in a notice as long as notice of the new date is
provided either in writing or by telephone or other means acceptable to
the Region 9 Enforcement Office, and the notice is provided as soon as
practicable after the new testing date is known, but no later than 7
days (or a shorter period as approved by the Region 9 Enforcement
Office) in advance of the new date of testing.
    (4) Oxides of nitrogen. The total daily plant-wide oxides of
nitrogen emissions in pounds of NO2 per day shall be
calculated using the following formula:

[GRAPHIC] [TIFF OMITTED] TR07MY07.050

Where:

TE = total plant-wide nitrogen dioxide emissions (lb NO2/
day);
Eij = hourly average emissions rate of each unit (lb
NO2/MMBtu);
Hij = hourly total heat input for each unit (MMBtu);
n = the number of units of coal burning equipment operating during
the hour;
m = the number of operating hours in a day, from midnight to
midnight.

    (5) Continuous emissions monitoring shall apply during all periods
of operation of the coal burning equipment, including periods of
startup, shutdown, and malfunction, except for CEMS breakdowns,
repairs, calibration checks, and zero and span adjustments. Continuous
monitoring systems for measuring SO2, NOX, and
diluent gas shall complete a minimum of one cycle of operation
(sampling, analyzing, and data recording) for each successive 15-minute
period. Hourly averages shall be computed using at least one data point
in each fifteen minute quadrant of an hour. Notwithstanding this
requirement, an hourly average may be computed from at least two data
points separated by a minimum of 15 minutes (where the unit operates
for more than one quadrant in an hour) if data are unavailable as a
result of performance of calibration, quality assurance, preventive
maintenance activities, or backups of data from data acquisition and
handling system, and recertification events. When valid SO2
pounds per hour, NO2 pounds per hour, or NO2
pounds per million Btu emission data are not obtained because of
continuous monitoring system breakdowns, repairs, calibration checks,
or zero and span adjustments, emission data must be

obtained by using other monitoring systems approved by the EPA to
provide emission data for a minimum of 18 hours in at least 22 out of
30 successive boiler operating days. If a parameter essential for
determining either the SO2 pound per hour or the heat input
is not valid or unavailable, that hour for that unit shall not be used
in calculating the percent emissions of SO2 for the plant-
wide limit. The necessary software for determining compliance with the
SO2 plantwide annual average shall be installed and
operating within 180 days of the effective date of this rule. The first
day for determining compliance with the plantwide SO2 limit
shall be 365 days after the successful installation of the software.
    (6) The owner or operator shall maintain a set of opacity filters
to be used as audit standards.
    (7) Nothing herein shall limit EPA's ability to ask for a test at
any time under Section 114 of the Clean Air Act, 42 U.S.C. 7414, and
enforce against any violation.
    (8) In order to provide reasonable assurance that the scrubbers for
control of particulate matter from Units 1, 2, and 3 are being
maintained and operated in a manner consistent with good air pollution
control practice for minimizing emissions, the owner or operator shall
comply with the following provisions:
    (i) The owner or operator shall develop a plan to monitor, record,
and report parameter(s) indicative of the proper operation of the
scrubbers to provide a reasonable assurance of compliance with the
particulate matter limits in paragraph (d)(2) of this section. The
owner or operator shall submit this plan to the Regional Administrator
no later than sixty (60) days after the effective date of this FIP. The
owner or operator shall implement this plan within 90 days of approval
by the Regional Administrator and shall commence reporting the data
generated pursuant to the monitoring plan in accordance with the
schedule in paragraph (e)(8)(v) of this section. If requested by the
Regional Administrator, this plan shall be revised and submitted to the
Regional Administrator for approval within sixty (60) days of the
request. The revised plan shall be implemented within sixty (60) days
of the Regional Administrator's approval.
    (ii) In the event that the owner or operator is unable to develop
the plan required in paragraph (e)(8)(i) of this section due to
technical difficulties, fails to submit the plan within sixty (60) days
of the effective date of this FIP, or the Regional Administrator
disapproves the plan, the owner or operator shall install and operate
devices to measure the pressure drop across each scrubber module and
the total flow of scrubbing liquid to the venturi section of each
scrubber module. The data from these instruments shall be monitored and
recorded electronically. A minimum of one reading every 15 minutes
shall be used to calculate an hourly average which shall be recorded
and stored for at least a five-year period. The owner or operator shall
report in an electronic format either all hourly data, or one-hour
averages deviating by more than 30 percent from the levels measured
during the last particulate matter stack test that demonstrated
compliance with the limit in this section. The owner or operator shall
implement this requirement no later than one hundred eighty (180) days
after the effective date of this FIP if it failed to submit the plan
within sixty (60) days after the effective date of this FIP; or no
later than 60 days after the Regional Administrator's disapproval of
the plan.
    (iii) The monitoring required under paragraphs (e)(8)(i) and
(e)(8)(ii) of this section shall apply to each Unit at all times that
the Unit is operating, except for monitoring malfunctions, associated
repairs, and required quality assurance or control activities
(including, as applicable, calibration checks and required zero and
span adjustments). A monitoring malfunction is any sudden, infrequent,
not reasonably preventable failure of the monitoring to provide valid
data. Monitoring failures that are caused in part by poor maintenance
or careless operation are not malfunctions.
    (iv) The owner or operator may petition the Regional Administrator
for an extension of the sixty (60) day deadline. Such extension shall
be granted only if the owner or operator demonstrates to the
satisfaction of the Regional Administrator that:
    (A) The delay is due to technical infeasibility beyond the control
of the owner or operator; and
    (B) The requested extension, if granted, will allow the owner or
operator to successfully complete the plan.
    (v) The owner or operator shall submit to the Regional
Administrator reports of the monitoring data required by this section
semi-annually. The reports shall be postmarked within 30 days of the
end of each calendar quarter.
    (vi) The owner or operator shall develop and document a quality
assurance program for the monitoring and recording instrumentation.
This program shall be updated or improved as requested by the Regional
Administrator.
    (vii) In the event that a program for parameter monitoring on Units
1, 2, and 3 is approved pursuant to the Compliance Assurance Monitoring
rule, 40 CFR Part 64, such program will supersede the provisions
contained in paragraph (e)(8) of this section.
    (f) Reporting and Recordkeeping Requirements. Unless otherwise
stated all requests, reports, submittals, notifications, and other
communications to the Regional Administrator required by this section
shall be submitted, unless instructed otherwise, to the Director,
Navajo Environmental Protection Agency, P.O. Box 339, Window Rock,
Arizona 86515,<PHONE_NUMBER>,<PHONE_NUMBER> (facsimile), and to the
Director, Air Division, U.S. Environmental Protection Agency, Region
IX, to the attention of Mail Code: AIR-5, at 75 Hawthorne Street, San
Francisco, California 94105,<PHONE_NUMBER>,<PHONE_NUMBER>
(facsimile). For each unit subject to the emissions limitation in this
section and upon completion of the installation of CEMS and COMS as
required in this section, the owner or operator shall comply with the
following requirements:
    (1) For each emissions limit in this section, comply with the
notification and recordkeeping requirements for CEMS compliance
monitoring in 40 CFR 60.7(c) and (d). For Units 4 and 5, periods of
excess opacity due to water droplets shall be reported in the summary
report required by 40 CFR 60.7(d).
    (2) For each day, provide the 365 day percent SO2
emitted, the total SO2 emitted that day, and the total
SO2 produced that day. For any hours on any unit where data
for SO2 hourly pounds or heat input is missing, identify the
unit number and monitoring device that did not produce valid data that
caused the missing hour.
    (3) Furnish the Regional Administrator with reports describing the
results of the annual particulate matter emissions tests postmarked
within sixty (60) days of completing the tests. Each report shall
include the following information:
    (i) The test date;
    (ii) The test method;
    (iii) Identification of the coal burning equipment tested;
    (iv) Values for stack pressure, temperature, moisture, and
distribution of velocity heads;
    (v) Average heat input;
    (vi) Emissions data, identified by sample number, and expressed in
pounds per MMBtu;
    (vii) Arithmetic average of sample data expressed in pounds per
MMBtu; and

    (viii) A description of any variances from the test method.
    (4) Excess Emissions Report. (i) For excess emissions (except in
the case of saturated stack conditions), the owner or operator shall
notify the Navajo Environmental Protection Agency Director and the U.S.
Environmental Protection Agency Regional Administrator by telephone or
in writing within one business day (initial notification). A complete
written report of the incident shall be submitted to the Navajo
Environmental Protection Agency Director and the U.S. Environmental
Protection Agency Regional Administrator within ten (10) working days
of the initial notification. This notification should be sent to the
Director, Navajo Environmental Protection Agency, by mail to: P.O. Box
339, Window Rock, Arizona 86515, or by facsimile to:<PHONE_NUMBER>
(facsimile), and to the Regional Administrator, U.S. Environmental
Protection Agency, by mail to the attention of Mail Code: AIR-5, at 75
Hawthorne Street, San Francisco, California 94105, by facsimile to:
(415) 947-3579 (facsimile), or by e-mail to<EMAIL_ADDRESS>The
complete written report shall include:
    (A) The name and title of the person reporting;
    (B) The identity and location of the Plant and Unit(s) involved,
and the emissions point(s), including bypass, from which the excess
emissions occurred or are occurring;
    (C) The time and duration or expected duration of the excess
emissions;
    (D) The magnitude of the excess emissions expressed in the units of
the applicable emissions limitation and the operating data and
calculations used in determining the magnitude of the excess emissions;
    (E) The nature of the condition causing the excess emissions and
the reasons why excess emissions occurred or are occurring;
    (F) If the excess emissions were the result of a malfunction, the
steps taken to remedy the malfunction and the steps taken or planned to
prevent the recurrence of such malfunction;
    (G) For an opacity exceedance, the 6-minute average opacity
monitoring data greater than 20 percent for the 24 hours prior to and
during the exceedance for Units 4 and 5; and
    (H) The efforts taken or being taken to minimize the excess
emissions and to repair or otherwise bring the Plant into compliance
with the applicable emissions limit(s) or other requirements. For this
reporting requirement, excess opacity due to saturated stack conditions
is exempted.
    (ii) If the period of excess emissions extends beyond the submittal
of the written report, the owner or operator shall also notify the
Regional Administrator in writing of the exact time and date when the
excess emissions stopped. Compliance with the excess emissions
notification provisions of this section shall not excuse or otherwise
constitute a defense to any violations of this section or of any law or
regulation which such excess emissions or malfunction may cause.
    (g) Equipment Operations. At all times, including periods of
startup, shutdown, and malfunction, the owner or operator shall, to the
extent practicable, maintain and operate the Plant including associated
air pollution control equipment in a manner consistent with good air
pollution control practices for minimizing emissions. Determination of
whether acceptable operating and maintenance procedures are being used
will be based on information available to the Regional Administrator
which may include, but is not limited to, monitoring results, opacity
observations, review of operating and maintenance procedures, and
inspection of the Plant. With regard to the operation of the baghouses
on Units 4 and 5, placing the baghouses in service before coal fires
are initiated will constitute compliance with this paragraph. (If the
baghouse inlet temperature cannot achieve 185 degrees Fahrenheit using
only gas fires, the owner or operator will not be expected to place
baghouses in service before coal fires are initiated; however, the
owner or operator will remain subject to the requirements of this
paragraph.)
    (h) Enforcement. (1) Notwithstanding any other provision in this
implementation plan, any credible evidence or information relevant to
whether the Plant would have been in compliance with applicable
requirements if the appropriate performance or compliance test had been
performed, can be used to establish whether or not the owner or
operator has violated or is in violation of any standard in the plan.
    (2) During periods of startup and shutdown the otherwise applicable
emission limits or requirements for opacity and particulate matter
shall not apply provided that:
    (i) At all times the facility is operated in a manner consistent
with good practice for minimizing emissions, and the owner or operator
uses best efforts regarding planning, design, and operating procedures
to meet the otherwise applicable emission limit;
    (ii) The frequency and duration of operation in start-up or
shutdown mode are minimized to the maximum extent practicable; and
    (iii) The owner or operator's actions during start-up and shutdown
periods are documented by properly signed, contemporaneous operating
logs, or other relevant evidence.
    (3) Emissions in excess of the level of the applicable emission
limit or requirement that occur due to a malfunction shall constitute a
violation of the applicable emission limit. However, it shall be an
affirmative defense in an enforcement action seeking penalties if the
owner or operator has met with all of the following conditions:
    (i) The malfunction was the result of a sudden and unavoidable
failure of process or air pollution control equipment or of a process
to operate in a normal or usual manner;
    (ii) The malfunction did not result from operator error or neglect,
or from improper operation or maintenance procedures;
    (iii) The excess emissions were not part of a recurring pattern
indicative of inadequate design, operation, or maintenance;
    (iv) Steps were taken in an expeditious fashion to correct
conditions leading to the malfunction, and the amount and duration of
the excess emissions caused by the malfunction were minimized to the
maximum extent practicable;
    (v) All possible steps were taken to minimize the impact of the
excess emissions on ambient air quality;
    (vi) All emissions monitoring systems were kept in operation if at
all possible; and
    (vii) The owner or operator's actions in response to the excess
emissions were documented by properly signed, contemporaneous operating
logs, or other relevant evidence.

[FR Doc. E7-8530 Filed 5-4-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 194 (Thursday, October 6, 2011)]
[Notices]
[Pages 62143-62144]
[FR Doc No: 2011-25847]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2001-9561; FMCSA-2003-15268; FMCSA-2005-21711; FMCSA-
2005-21254; FMCSA-2007-26653; FMCSA-2007-27897; FMCSA-2007-28695;
FMCSA-2009-0086; FMCSA-2009-0154]

Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of renewal of exemptions; request for comments.

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

SUMMARY: FMCSA announces its decision to renew the exemptions from the
vision requirement in the Federal Motor Carrier Safety Regulations for
27 individuals. FMCSA has statutory authority to exempt individuals
from the vision requirement if the exemptions granted will not
compromise safety. The Agency has concluded that granting these
exemption renewals will provide a level of safety that is equivalent to
or greater than the level of safety maintained without the exemptions
for these commercial motor vehicle (CMV) drivers.

DATES: This decision is effective October 24, 2011. Comments must be
received on or before November 7, 2011.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) numbers: FMCSA-2001-9561; FMCSA-2003-15268;
FMCSA-2005-21711; FMCSA-2005-21254; FMCSA-2007-26653; FMCSA-2007-27897;
FMCSA-2007-28695; FMCSA-2009-0086; FMCSA-2009-0154, using any of the
following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Instructions: Each submission must include the Agency name and the
docket number for this notice. Note that DOT posts all comments
received without change to http://www.regulations.gov, including any
personal information included in a comment. Please see the Privacy Act
heading below.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The Federal Docket Management System (FDMS) is
available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's Privacy Act Statement for the FDMS published in
the Federal Register on January 17, 2008 (73 FR 3316), or you may visit
http://www.edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical
Programs,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA, Department of
Transportation, 1200 New Jersey Avenue, SE., Room W64-224, Washington,
DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m. Monday through
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption
from the vision requirements in 49 CFR 391.41(b)(10), which applies to
drivers of CMVs in interstate commerce, for a two-year period if it
finds ``such exemption would likely achieve a level of safety that is
equivalent to or greater than the level that would be achieved absent
such exemption.'' The procedures for requesting an exemption (including
renewals) are set out in 49 CFR part 381.

Exemption Decision

    This notice addresses 27 individuals who have requested renewal of
their exemptions in accordance with FMCSA procedures. FMCSA has
evaluated these 27 applications for renewal on their merits and decided
to extend each

exemption for a renewable two-year period. They are:
    Calvin D. Atwood.
    Gregory W. Babington.
    Andrew B. Clayton.
    William P. Doolittle.
    Steve E. Duran.
    Michael M. Edleston.
    Kenneth J. Fisk.
    Jonathan M. Gentry.
    Benny D. Hatton, Jr.
    Robert W. Healey, Jr.
    Nathaniel H. Herbert, Jr.
    Thomas W. Markham.
    Raul Martinez.
    Christian E. Merseth.
    Stuart T. Miller.
    Robert A. Miller.
    Kevin L. Moody.
    Terry W. Moore.
    Charles W. Mullenix.
    Robert M. Pickett II
    Donald F. Plouf.
    John N. Poland.
    Billy D. Robertson.
    Gerry L. Rogers.
    Gary W. Wolff.
    John C. Young.
    George R. Zenor.

    The exemptions are extended subject to the following conditions:
(1) That each individual has a physical examination every year (a) By
an ophthalmologist or optometrist who attests that the vision in the
better eye continues to meet the standard in 49 CFR 391.41(b)(10), and
(b) by a medical examiner who attests that the individual is otherwise
physically qualified under 49 CFR 391.41; (2) that each individual
provides a copy of the ophthalmologist's or optometrist's report to the
medical examiner at the time of the annual medical examination; and (3)
that each individual provide a copy of the annual medical certification
to the employer for retention in the driver's qualification file and
retains a copy of the certification on his/her person while driving for
presentation to a duly authorized Federal, State, or local enforcement
official. Each exemption will be valid for two years unless rescinded
earlier by FMCSA. The exemption will be rescinded if: (1) The person
fails to comply with the terms and conditions of the exemption; (2) the
exemption has resulted in a lower level of safety than was maintained
before it was granted; or (3) continuation of the exemption would not
be consistent with the goals and objectives of 49 U.S.C. 31136(e) and
31315.

Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no
longer than two years from its approval date and may be renewed upon
application for additional two year periods. In accordance with 49
U.S.C. 31136(e) and 31315, each of the 27 applicants has satisfied the
entry conditions for obtaining an exemption from the vision
requirements (66 FR 30502; 66 FR 41654; 68 FR 37197; 68 FR 44837; 68 FR
48989; 70 FR 30999; 70 FR 41811; 70 FR 42615; 70 FR 46567; 70 FR 48797;
70 FR 61493; 72 FR 8417; 72 FR 36099; 72 FR 39879; 72 FR 40359; 72 FR
40360; 72 FR 46261; 72 FR 52421; 72 FR 54971; 72 FR 54972; 74 FR 19267;
74 FR 28094; 74 FR 43223; 74 FR 34074; 74 FR 37295; 74 FR 41971; 74 FR
48343; 74 FR 49069). Each of these 27 applicants has requested renewal
of the exemption and has submitted evidence showing that the vision in
the better eye continues to meet the standard specified at 49 CFR
391.41(b)(10) and that the vision impairment is stable. In addition, a
review of each record of safety while driving with the respective
vision deficiencies over the past two years indicates each applicant
continues to meet the vision exemption standards. These factors provide
an adequate basis for predicting each driver's ability to continue to
drive safely in interstate commerce. Therefore, FMCSA concludes that
extending the exemption for each renewal applicant for a period of two
years is likely to achieve a level of safety equal to that existing
without the exemption.

Request for Comments

    FMCSA will review comments received at any time concerning a
particular driver's safety record and determine if the continuation of
the exemption is consistent with the requirements at 49 U.S.C. 31136(e)
and 31315. However, FMCSA requests that interested parties with
specific data concerning the safety records of these drivers submit
comments by November 7, 2011.
    FMCSA believes that the requirements for a renewal of an exemption
under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially
granting the renewal and then requesting and evaluating, if needed,
subsequent comments submitted by interested parties. As indicated
above, the Agency previously published notices of final disposition
announcing its decision to exempt these 27 individuals from the vision
requirement in 49 CFR 391.41(b)(10). The final decision to grant an
exemption to each of these individuals was made on the merits of each
case and made only after careful consideration of the comments received
to its notices of applications. The notices of applications stated in
detail the qualifications, experience, and medical condition of each
applicant for an exemption from the vision requirements. That
information is available by consulting the above cited Federal Register
publications.
    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these drivers are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315, FMCSA will take immediate steps to revoke the
exemption of a driver.

    Issued on: September 27, 2011.
Larry W. Minor,
Associate Administrator of Policy.
[FR Doc. 2011-25847 Filed 10-5-11; 8:45 am]
BILLING CODE 4910-EX-P