allow construction of a new coal-fired power plant on the Navajo
Nation, known as the Desert Rock Energy Facility (Desert Rock).\30\ If
constructed, Desert Rock would have used the same coal as FCPP from the
BHP Navajo Mine and the final PSD permit set a NOX limit of
0.05 lb/MMBtu (on a rolling 365-day average). Commenters argue that if
Desert Rock was required to meet a limit of 0.05 lb/MMBtu using the
same coal as FCPP, the ash content should not hinder FCPP from
achieving similarly low NOX emission rates. EPA notes that
if constructed, Desert Rock would have been a new, state-of-the-art
facility specifically designed with boiler characteristics, combustion
controls, and post-combustion controls to meet the Best Available
Control Technology (BACT) requirements for numerous criteria and non-
criteria pollutants. FCPP is an existing, over 40-year-old power plant.
The Regional Haze Rule requires a case-by-case BART (best available
retrofit technology) determination, which need not be equivalent to
BACT for new facilities.
---------------------------------------------------------------------------

    \29\ See page 4-3 of report titled ``PNM BART Report for SJGS--
final to PNM--June 18, 2007.pdf'' in the docket for this final
rulemaking. Pre-consent decree emission rates on Units 1-4 at SJGS
ranged from 0.42-0.45 lb/MMBtu. Post-consent decree emission limits
for those units were 0.30 lb/MMBtu.
    \30\ Desert Rock has not been constructed. EPA requested a
voluntary remand of the Desert Rock PSD permit in 2009 to
incorporate new applicable requirements. The developers of Desert
Rock have not yet submitted a revised PSD application to EPA.
---------------------------------------------------------------------------

    Based on the significant 30-calendar day average variability
exhibited by the top performing units cited by commenters, and the
variability in 30-calendar day average and the 2009-June 2011 30-
calendar day average percent NOX reduction of 78 percent
exhibited by 12 cell burner boilers equipped with SCR, EPA continues to
affirm that a limit representing an 80 percent reduction in
NOX emissions reflects what is achievable using the
technology determined as BART for FCPP.
    Comment: One of the owners of FCPP stated a willingness to support
a NOX emission limit of 0.098 lb/MMBtu for Units 4 and 5
under the alternative proposal, but only in the context of an
alternative emission reduction strategy that includes resolution of the
related issues.
    The Navajo Nation similarly endorsed the proposed 80 percent
reduction in NOX emissions from Units 4 and 5, with a limit
of 0.098 lb/MMBtu, under the supplemental proposal, based on the site-
specific parameters at FCPP.
    Response: EPA agrees that the appropriate limit for Units 4 and 5
under the alternative strategy is 0.098 lb/MMMtu (based on a rolling
average of 30 successive boiler operating days). The final rule
reflects this limit.
    Comment: One of the owners of FCPP opposed EPA's proposal to
``phase in'' NOX controls at FCPP under a traditional BART
FIP, commencing 3 years from the date the FIP becomes effective. The
commenter asserted that this proposal does not afford adequate time to
properly design, engineer, and construct the controls before the
compliance deadline.
    Response: EPA partially agrees with this comment. We revised the
BART compliance date for one 750 MW unit to within 4 years from the
effective date of this final rule. The remaining 750 MW unit and Units
1-3 must meet a compliance date of within 5 years of the effective date
of the final rule. The revised compliance time within 4 and 5 years
allows time for design, engineer, and construct controls.
    Comment: One environmental advocacy group stated that the proposed
plant-wide BART limit of 0.11 lb/MMBtu across all five FCPP units
violates Executive Order 12898 on environmental justice. Specifically,
the commenter asserted that given the significant differences in
pollution control systems among FCPP's five units, allowing a plant-
wide average could create pollution ``hotspots'' with respect to co-
pollutants. As an example, the commenter noted that while Units 4 and 5
have baghouses, Units 1-3 use less efficient venturi scrubbers for
control of sulfur dioxide, particulate matter, and mercury. The
commenter asserted that the plant-wide average limit for NOX
would allow increased emissions from Units 1-3 in the event of a
temporary outage or reduced output from one or both of the larger
units. The commenter stated that while this may not increase the total
NOX emissions from the plant, it would increase the amount
of mercury and other toxic co-pollutants emitted into the surrounding
community, which is a low-income community of color.
    Response: EPA disagrees with the commenter that a plant-wide BART
limit of 0.11 lb/MMBtu across all five FCPP units violates Executive
Order 12898 on environmental justice. This final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income population because it increases the
level of environmental protection for all affected populations in the
area including any minority or low-income population.
    The commenter is correct that in the event of a temporary outage or
reduced output from Unit 4 or 5 the operator could continue to operate
FCPP units 1-3 under the original BART proposal provided that they
maintain compliance with the plant-wide emission limit of 0.11 lb/MMBtu
for NOX. In order to maintain compliance with the plant-wide
emission limit, Units 1-3 would have to operate at a lesser capacity
than

they would normally operate if Unit 4 and 5 were functioning because
units 1-3 have higher NOX emission rates than Units 4 and 5.
The NOX emission rates from Units 1-3 with SCR, based on 80
percent control of current emission rates would be 0.16, 0.13, and 0.12
lb/MMBtu respectively which are higher than the proposed plant-wide
emission limit. Therefore, to maintain compliance with the plant-wide
NOX emission limit (which is based upon a 30-calendar day
rolling average), Units 1-3 would have to operate at a reduced capacity
in any 30-day period in which Units 4 and 5 are operating a reduced
capacity, so as to maintain the balance among the five units. This
reduced capacity would result in an overall lower rate of emission for
mercury and other co-pollutants from Units 1-3. Therefore, there would
be no increased emissions of mercury or other co-pollutants and no
``hot-spots'' or disproportionately high and adverse human health or
environmental effects on minority or low-income population.
2. Comments on the Proposed BART Determination for PM
    Comment: One of the owners of FCPP asserted that the existing
controls at FCPP constitute BART for PM emissions. The commenter
contended that the impact of PM controls on the visibility in the
neighboring Class I areas would be ``vanishingly small'' while the cost
would be ``exorbitant'' (resulting in cost effectiveness ranging from
$51,500-$148,659 per ton reduced and from $1.4 billion-$3.7 billion per
dv improvement).
    The Navajo Nation stated that EPA acknowledged the high incremental
cost of new PM controls on Units 1-3 (citing 75 FR 64230), yet
justified the cost effectiveness of baghouses by comparison with
similar retrofit projects in EPA Region 9. This commenter asserted that
EPA failed to properly evaluate the costs associated with installation
of baghouses using site-specific parameters, thereby deviating from the
BART Guidelines. The commenter asserted that continued operation of
venturi scrubbers to meet emission limits of 0.03 lb/MMBtu and an
opacity limit of 20 percent satisfies BART for Units 1-3.
    The Navajo Nation expressed support for the supplemental proposal
to require a PM emission limit of 0.015 lb/MMBtu and 10 percent opacity
limit on Units 4 and 5. The commenter presumed that FCPP can readily
meet these standards prior to installation of SCR since the limits can
be achieved with the existing baghouses.
    Regarding the EPA's proposed 10 percent opacity standard for each
unit, two of the owners of FCPP stated that the EPA has not specified
any costs or predicted any improvement in visibility that would result
from such limits. The commenters asserted that without such basis, the
EPA cannot justify the proposed opacity limits.
    Response: As stated in our proposed BART determination for PM, the
existing venturi scrubbers on Units 1-3 at FCPP do not constitute BART.
In our proposed BART determination for FCPP, EPA proposed a PM emission
limit for Units 1-3 that can be achieved through the installation of
any of four different PM control options. At the time of our BART
proposal, the MATS Rule for electric utility steam generating units had
not yet been proposed, nor had APS suggested its alternative emission
control strategy to close Units 1-3 in lieu of complying with BART for
NOX. Because the final MATS rule has been issued \31\ and
sets filterable PM and mercury limits that would be applicable to the
units at FCPP, and because EPA is finalizing this rule to allow APS to
either comply with the alternative emission control strategy or BART
for NOX, EPA is determining that it is not necessary or
appropriate at this time to finalize our proposal to set new PM limits
for Units 1-3.
---------------------------------------------------------------------------

    \31\ See 77 FR 9304, February 16, 2012.
---------------------------------------------------------------------------

    Regarding our proposed BART determination for PM for Units 4 and 5,
we are finalizing the proposed 0.015 lb/MMBtu emission limit based upon
the proper operation of the existing baghouses. However, we have
determined based on the comments we received from the operator of FCPP
that it is not necessary or appropriate to take final action on the
proposed 10 percent opacity limit. We have determined that imposing a
10 percent opacity limit will not provide greater assurance that Units
4 and 5 at FCPP are meeting the PM emission limit of 0.015. We have
determined previously that a 20 percent opacity limit is sufficient to
ensure the PM emission limit is being continuously met. The 10 percent
opacity limit was generally supported by the Navajo Nation and
environmental groups. EPA has promulgated some recent rules for
electric generating units that have retained a 20 percent opacity
standard rather than reducing that limit to 10 percent. Specifically,
EPA's revised the New Source Performance Standard for large electric
generating units at 40 CFR Part 60, Subpart Da, to lower the PM
emission limit for new units to 0.09 lb/MMBtu for gross energy output
or 0.097 lb/MMBtu for net energy output. For existing units that
reconstruct or modify, Subpart Da establishes an emissions limit of
0.015 lb/MMBtu. For both standards, EPA retained a 20 percent opacity
standard as being sufficient to ensure compliance with either the 0.090
(0.097) lb/MMBtu or 0.015 lb/MMBtu PM emission limit. EPA's MATS rule,
which was finalized just a few months ago, also retained a 20 percent
opacity standard as being sufficient to ensure compliance with the PM
emission limit that will be required for electric generating units
subject to that rule.
    The importance of the opacity limit is that a certain percentage
opacity is an instantaneous demonstration that a unit is in compliance
with its PM emission limit. If a unit does not install and operate a PM
continuous emissions monitor, then EPA ensures compliance with the PM
emission limit by requiring an episodic source test. For the periods
between episodic source testing, EPA can reasonably assure continuous
compliance with the PM emission limit by observing that the unit's
stack emissions do not exceed a set opacity. EPA's recent rulemakings
have determined that 20 percent opacity is sufficient to ensure
compliance with a PM emission limit lower than the emission limit we
have determined is BART for Units 4 and 5. Accordingly, EPA is
determining the 20 percent opacity limit that we promulgated in our
2007 FIP for FCPP as being adequate to ensure continuous compliance
with the PM BART limit or 0.015 lb/MMBtu. EPA concludes that this
change is a logical outgrowth of the comments received on the proposal.
    Comment: One commenter indicated that EPA has proposed a BART limit
only for PM, which appears to be only filterable particulate matter.
The commenter asserted that the BART guidelines specify that BART
should be evaluated and defined for both PM10 and
PM2.5 (citing 40 CFR part 51, Appendix Y, section IV.A) and,
consequently, that EPA must evaluate and define BART limits for both
PM10 and PM2.5. The commenter also asserted that
as part of the PM2.5 BART determination, EPA must impose
emission limits on condensable particulate matter, which is typically
in the size range of 2.5 micrometers or smaller. Thus, the commenter
stated that in addition to a filterable PM BART limit, EPA should
impose a BART limit on total PM2.5.
    One public interest advocacy group supported EPA's proposal and
supplemental proposal to require a PM limit and a 10 percent opacity
limit on Units 4 and 5. The commenter indicated

that these limits should become effective prior to SCR installation,
regardless of whether the BART or alternative emission control plan is
implemented.
    Response: EPA disagrees with the commenters' recommendation that
the condensable fraction must be included in the PM BART limits. EPA
has previously outlined our rationale for why an
H2SO4 limit is not appropriate at this time (it
will be addressed through the pre-construction permitting process if
needed) and EPA expects that H2SO4 will be the
main component of condensable PM that would be expected from a coal-
fired EGU with an SCR.
    EPA agrees with commenters that PM limits on Units 4 and 5 should
become effective prior to SCR installation, as Units 4 and 5 generally
already meet the 0.015 lb/MMBtu limit.\32\ EPA is finalizing a
compliance date for PM emission limits on Units 4 and 5 to be within 6
months after restart following the next scheduled major outages in 2013
and 2014. As discussed previously, EPA has determined that finalizing
the proposed opacity limit of 10 percent on Units 4 and 5 is not
necessary or appropriate at this time.
---------------------------------------------------------------------------

    \32\ See document titled: ``TSD ref. [2-3, 95] FCPP--BART--
Scenarios--Emissions--EPA--Proposal.xlsx'' in the docket for this
proposed rulemaking at EPA-R09-OAR-2010-0683-0017.
---------------------------------------------------------------------------

3. Comments on BART for SO2
    Comment: Some commenters stated that SO2 BART should be
required for FCPP, while one commenter simply noted that FCPP is
subject to BART for SO2. One federal agency commenter stated
that FCPP is subject to BART for SO2. The commenter stated
that Units 4 and 5 should be able to meet a limit of 0.12 lb/MMBtu on
an annual average basis by upgrading the existing scrubbers.
    One set of environmental advocacy groups discussed the Regional
Haze rules, the TAR, and the SO2 emissions from FCPP and
concluded that EPA is under a legal obligation to conduct a BART
analysis for SO2 emissions from FCPP and, to the extent EPA
has failed to make a finding that it is ``necessary or appropriate'' to
regulate SO2 emissions from the FCPP, such a failure is
arbitrary, capricious, and not supported by the administrative record.
    According to the commenter, EPA argues that FCPP's current
SO2 emissions limits are ``close to or equivalent'' to the
limit that would be established under BART. The commenter asserted that
this conclusion is arbitrary and capricious because EPA has failed to
undertake any scientific or technical analysis to support its
conclusion.
    A public interest advocacy group stated that the SO2
limits need to be tightened for FCPP to further reduce visibility
impairment and to reduce the acidification of rainfall caused by the
formation of H2SO4. The commenter stated that
because the damaging effects of H2SO4 in
precipitation on ancestral Puebloan sandstone dwellings and pictographs
are not fully understood, it is disappointing for the FCPP proposals
not to address SO2.
    Response: EPA finalized a FIP in May 2007 that required significant
SO2 emissions reductions from FCPP and established
continuous SO2 emissions limits for FCPP. See 72 FR 25698
(May 7, 2007). The 2007 FIP required FCPP to increase the removal
efficiency of its SO2 emissions controls from 72 percent to
88 percent, resulting in an SO2 emissions reduction of
approximately 22,000 tons per year. EPA had proposed this FIP in
September 2006. The 2006 proposed FIP stated that ``EPA believes that
the SO2 controls proposed today for FCPP are close to or the
equivalent of a regional haze BART determination of SO2.
This takes into consideration the early reductions this action will
achieve and the modification to the existing SO2
scrubbers.'' 72 FR 25700. In finalizing that rulemaking in the 2007
FIP, EPA stated that it was exercising its authority pursuant to
Section 49.11 of the TAR to implement measures that are necessary or
appropriate to protect air quality in Indian country. Id. EPA
determined that the SO2 emissions reductions would be
federally enforceable as soon as the 2007 FIP was finalized, which
would be potentially five years before EPA could achieve enforceable
SO2 emissions reductions through making a BART
determination. See id. EPA also considered the Navajo Nation's request
for EPA to establish enforceable SO2 emissions reductions
immediately that, in the opinion of the Navajo Nation, ``appear[] to be
equivalent to BART.'' Id. Therefore, EPA's determination on this issue
in finalizing the 2007 FIP was ``that it is neither necessary nor
appropriate at this time to undertake a BART determination for
SO2 from FCPP given the timing of the substantial
SO2 reductions resulting from this FIP.'' Id. In addition,
we stated that ``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.'' Id. 25700-701. Both APS, as
operator of FCPP, and Sierra Club sought judicial review of our 2007
FIP.
    The comments on this action essentially repackage the comments we
received and provided a response for on the 2007 FIP. The comments have
not presented any new facts or legal considerations that have arisen or
changed since we responded to comments requesting a BART determination
for SO2 in 2007.
4. Other Comments on BART
    Comment: One group of environmental advocacy groups stated that as
an alternative to a condensable PM2.5 limit, EPA could set
limits on the pollutants which form condensable PM2.5, such
as sulfuric acid mist (H2SO4) and ammonia, as EPA
proposed as part of the San Juan Generating Station (SJGS) BART
rulemaking (citing 76 FR 503-4, January 5, 2011). If EPA adopts this
approach, the commenter urged EPA to set an emission limit for
H2SO4 no higher than the limit of 1.06 x
10-4 lb/MMBtu for each unit as proposed for SJGS based on
the use of low reactivity catalyst and the most current information
from the Electric Power Research Institute. If CEMS are unavailable for
this pollutant, the commenter urged EPA to require stack test
monitoring for H2SO4 on a more frequent basis
than annual monitoring.
    The commenter also requested that EPA set emission limits for
ammonia at a rate no higher than the 2.0 parts per million as proposed
at SJGS, to be monitored with CEMs.
    Response: EPA disagrees with the comment that Region 9 should set
the same emission limits for ammonia and sulfuric acid as Region 6 in
its proposed BART determination for SJGS.
    In its January 5, 2011 proposed rulemaking for SJGS, Region 6
proposed an ammonia slip limit of 2.0 ppmvd on an hourly average and
requested comment on a range from 2.0 ppmvd to 6.0 ppmvd. In its final
BART rulemaking (76 FR 52388, August 22, 2011), Region 6 determined
that an emission limit and monitoring were not warranted for ammonia
and did not finalize its BART determination for SJSG with the proposed
2.0 ppmvd ammonia limit.
    In its proposal for SJGS, Region 6 proposed an emission limit for
sulfuric acid of 1.06 x 10-4 lb/MMBtu on an hourly average,
and requested comment on a range from 1.06 x 10-4 to 7.87 x
10-4 lb/MMBtu. In its final rulemaking, Region 6 finalized
an emission limit for sulfuric acid of 2.6 x 10-4 lb/MMBtu
to minimize its contribution to visibility impairment. Region 6
calculated this emission limit using an estimation

methodology from EPRI, assuming the use of an ultra-low activity
catalyst (0.5 percent total conversion of SO2 to
SO3), zero ammonia slip, no sorbent injection, and EPRI-
recommended values for removal by existing downstream control
equipment.
    Actual measurements of baseline sulfuric acid emissions have not
yet been determined at FCPP and the calculation of projected sulfuric
acid emissions after installation and operation of SCR using the EPRI
methodology is dependent on future decisions made by the facility on
the type of SCR catalyst and number of layers used, as well as numerous
assumptions about loss to downstream components, such as air preheaters
and baghouses, the true values of which are currently not yet defined
or known for FCPP. Furthermore, EPA Region 9 is the permitting
authority for preconstruction permits on the Navajo Nation, and an
increase in sulfuric acid emissions from the installation of SCR may
trigger major modification PSD permit requirements at a low threshold
of 7 tpy (see 40 CFR 52.21) or Tribal minor new source review (NSR)
permit requirements at a threshold of 2 tpy (see 40 CFR Part 49 Subpart
C). Preconstruction permitting review may also be triggered from
significant emissions increases of PM2.5 from SCR
installation at FCPP. If one of these pollutant triggers PSD, the
permitting authority must provide an Additional Impact Analysis under
the PSD program. The PSD program also requires the permitting authority
to determine BACT for pollutants that triggered PSD. A similar control
technology review may also be required at the discretion of the
permitting authority under the Tribal Minor NSR program. For these
reasons, Region 9 has determined that for FCPP, emission limits and
monitoring requirements for sulfuric acid are more appropriately
reviewed in the preconstruction permitting process.
    Comment: Citing the BART Guidelines at 40 CFR part 51, Appendix Y,
section V, one environmental advocacy group stated that BART emission
limits and compliance schedules must be based on ``boiler operating
day.''
    The commenter asserted that the ``very high'' proposed BART
emission limits suggest that EPA set these limits to encompass spikes
that occur during startups and shutdowns. The commenter asserted that
setting and enforcing limits based on boiler operating day would
necessarily exclude spikes that occur before and after outages, such as
startups, shutdowns, and malfunctions. According to the commenter, such
periods should be subject to separate limits set at the pre-SCR
uncontrolled level to encourage good work practice standards during
these periods while allowing the SCR and other emission control
technologies to be operated at an efficient and continuous capacity in
compliance with BART.
    Response: EPA agrees that the NOX limit under the
alternative emission control strategy should be set for 30 successive
boiler operating days and that a ``boiler operating day'' should be
defined as any day in which the boiler fires fossil fuel. Because the
NOX emission limit under the alternative emission control
strategy already includes periods of startup and shutdown, separate
limits are not required. The final rule reflects this approach.
    For the original proposed BART determination, EPA does not find it
necessary to define boiler operating day because the BART limit is a
heat input-weighted plant-wide limit. Only operating hours for any of
the five units would be included. When a unit is not operating, those
hours are not included in the plant-wide 30-day average. Additionally,
the heat input-weighted plant-wide limit also includes periods of
startup and shutdown; therefore, separate limits are not required.
    Comment: One environmental advocacy group stated that EPA should
require FCPP to install all control equipment within 3 years of the
date of a final FIP, as EPA did at SJGS. The commenter stated that
there is ample data to support the contention that all this emission
control technology can be installed and operational within 3 years or
less.
    Response: EPA disagrees with the comment that Region 9 should set a
3-year compliance timeframe because Region 6 proposed a 3-year
compliance timeframe for SJGS. In its proposed rulemaking for SJGS,\33\
Region 6 proposed a 3-year timeframe for SJGS to comply with the
proposed limits but requested comment on a compliance range of 3-5
years. In its final rulemaking,\34\ Region 6 finalized a compliance
timeframe of 5 years and determined that because of site congestion at
SJGS, a longer timeframe than average (37-43 months) to install SCR on
the 4 units at SJGS would be required. The final BART determination for
FCPP requires retrofit of five existing units at FCPP. In the final
rule for FCPP, Region 9 is requiring installation and operation of SCR
controls for one 750 MW unit within 4 years of the effective date, and
the remaining 750 MW unit and Units 1-3 within 5 years of the effective
date. Based on all of the factors that will be involved in the design,
purchase and operation of the SCR controls, Region 9 considers this
schedule to be appropriate and expeditious.
---------------------------------------------------------------------------

    \33\ See 76 FR 491, January 5, 2011.
    \34\ See 76 FR 52388, August 22, 2011.
---------------------------------------------------------------------------

G. Comments on APS's Alternative and EPA's Supplemental Proposal

    Comment: One of the owners of FCPP pointed out that the November
2010 APS proposal included two critical components: (1) A proposal to
close Units 1-3 and install SCRs on Units 4 and 5; and (2) EPA's
contemporaneous agreement that these activities resolve any liability
FCPP may have under regional haze BART, Reasonably Attributable
Visibility Impairment Best Available Retrofit Technology (RAVI BART),
NSR, and New Source Performance Standard (NSPS). The commenter asserted
that EPA's supplemental proposal addresses only half of APS'S
proposal--the half that achieves better than BART emission reductions,
plant-wide reductions of all other emissions, and greater visibility
improvement at nearby Class I areas--but ignores the other half of the
APS proposal--the half that provides APS and the FCPP co-owners with
needed regulatory certainty. Unless there is a contemporaneous
resolution of these key issues with EPA, the commenter cannot and does
not support EPA's supplemental proposal.
    Response: EPA understands that the owners of FCPP were seeking to
resolve any potential regulatory noncompliance issues simultaneously.
However, EPA must use different mechanisms for promulgating rules and
resolving enforcement issues. The comment requests resolution of
potential past non-compliance with NSR and NSPS requirements. Potential
past non-compliance can be resolved through entering into a Consent
Decree containing a judicially approved release from liability. Such a
Consent Decree under the CAA must be approved by the United States
Department of Justice and must also be lodged in a United States
District Court where the public is allowed to comment on it. Consent
Decrees must be entered by the United States District Court for a
release of liability of potential past non-compliance to be effective.
Accordingly, this rulemaking action cannot effectuate any release of
liability for potential past non-compliance with NSR or NSPS.
    EPA is aware that several environmental groups have petitioned the
Department of Interior to make a

finding that impairment at Class I areas is reasonably attributable to
FCPP.\35\ The NPS, on behalf of Department of Interior, has declined to
make such a finding based on EPA's work in this rulemaking.\36\ The
environmental groups also filed a Complaint in the United States
District Court for the District of Columbia \37\ contending that the
Department of Interior was unreasonably delaying making a finding of
reasonable attribution from FCPP. On June 30, 2011, the Court dismissed
the Complaint \38\ holding that the NPS's letters refusing to make the
finding of reasonable attribution constituted denying the Petitioners'
request for a RAVI finding. Therefore, there are no pending petitions
with the Department of Interior requesting a finding that visibility
impairment at any Class I areas is reasonably attributable to FCPP. In
any event, a BART determination under RAVI would likely be the same as
under this BART determination.
---------------------------------------------------------------------------

    \35\ See National Parks Conservation Association, et al.,
Petition to United States Department of Interior, United States
Department of Agriculture, and United States Forest Service,
February 16, 2010, in the docket for this rulemaking.
    \36\ See letter from Will Shafroth, Department of Interior to
Stephanie Kodish, NPCA, March 8, 2011 in the docket for this
proposed rulemaking.
    \37\ See National Parks Conservation Association, et al.,
Petition to United States District Court for the District of
Columbia, January 20, 2011, in the docket for this final rulemaking.
    \38\ See National Parks Conservation Association, et al.,
Plaintiffs, v. United States Department of Interior and United
States Department of Agriculture, Defendants. Civil Action No. 11-
130 (GK). United States District Court for the District of Columbia,
June 30, 2011, 794 F. Supp. 2d 39; 2011 U.S. Dist. LEXIS 70170; 74
ERC (BNA) 1015. In the docket for this final rulemaking.
---------------------------------------------------------------------------

    Comment: One of the owners of FCPP stated that it is imperative to
note that its support of the supplemental proposal (if other potential
liabilities are resolved as discussed above) is based solely on the
rationale that this achieves a result better than the proposed BART
FIP, and that this ``better than BART'' outcome is a result of the
closure of Units 1, 2, and 3. The commenter stressed that in no case--
either in the original BART FIP proposal or in the supplemental
proposal--does the commenter support any determination that SCR
constitutes BART for FCPP. A second FCPP owner stated that its
acceptance of the supplemental proposal upon resolution of the other
potential issues would be a voluntary action based on its own business
interests; the commenter does not support any BART determination that
calls for installation of SCR at FCPP.
    Response: EPA disagrees with the commenters that SCR is not BART.
Based on our five-factor analysis, as described in the TSD for our
proposed BART determination, SCR is cost effective and results in the
greatest anticipated improvement in visibility. One of the owners of
FCPP notes that the ``better-than-BART'' outcome is a result of the
closure of Units 1, 2, and 3. However, the closure of Units 1-3 alone
does not result in greater emission reductions than EPA's proposed BART
determination, and represents only a roughly 30 percent reduction from
baseline emissions. The closure of Units 1-3, in combination with SCR
on Units 4 and 5, results in the ``better-than-BART'' outcome.
    The voluntary nature of the alternative emission control strategy
does not negate EPA's BART determination because (1) EPA must first
determine what BART is in order to fulfill the requirements of the
alternative program to BART as prescribed in the Regional Haze Rule,
and (2) EPA cannot require the full or partial closure of a facility as
a BART alternative, therefore the alternative emission control strategy
remains an optional business choice of the owners of FCPP to implement
in lieu of BART, if they see fit.
    Comment: One environmental advocacy group and one federal agency
asserted that the supplemental proposal is not better than BART for
NOX. Generally, commenters argue that based on the extended
compliance timeframe for the alternative emission control strategy, the
use of an artificially inflated baseline, the potential increase in
output from Units 4 and 5, and assuming that SCR can achieve 0.05 lb/
MMBtu of NOX on an annual basis, the BART alternative fails
to achieve greater cumulative NOX reductions than would
installation of BART (SCR) on all five units.
    Response: EPA disagrees with the comment that the alternative
emission control strategy is not better than BART, but agrees that a
reexamination of baseline emissions and projected capacity factors in
the future is warranted. As reported in the TSD for our proposed BART
determination, facility-wide NOX emissions over 2001-2009
ranged from 40,331 to 47,300 tpy. While the baseline emissions provided
by APS and used by EPA in our Supplemental Proposal was within the
range of annual NOX emissions, in response to these
comments, we conducted an additional analysis to compare the
alternative emission control strategy against our final BART
determination for NOX using the 2001-2010 average as the
baseline emission rate and an assumed capacity factor of 81 percent
\39\ for Units 4 and 5 under the alternative emission control
strategy.\40\ This analysis shows that in 2014 and 2015, the
alternative emission control strategy results in lower NOX
emissions than BART due to the closure of Units 1-3 at the end of 2013.
In 2016, 2017, and 2018, BART results in lower emissions than the
alternative, and in 2019 and beyond, the alternative emission control
strategy (5,556 tpy), with phased-in controls on Units 4 and 5 by the
end of 2018, results in lower emissions than BART (8,479 tpy). In
total, the BART Alternative results lower emissions from FCPP over more
calendar years (2014-2015, and 2019 and beyond) than does BART (2016-
2018). Even if APS operated Units 4 and 5 at 100 percent capacity, EPA
calculates that emissions under the alternative emission control
scenario in 2019 and beyond to be 6,859 tpy, which is still lower than
under BART (8,479 tpy). On a cumulative basis, i.e., the sum total of
NOX emissions over 2011 to 2064, the BART Alternative also
results in lower emissions than BART, both at an 81 percent capacity
factor and at 100 percent capacity.
---------------------------------------------------------------------------

    \39\ In testimony to the ACC, Mark Schiavoni of APS testified
that he anticipates capacity factors over 2015-2030 to range from
75-81 percent for Units 4 and 5. See document titled ``Schiavoni
Testimony--TRANSCRIPT.pdf'' in the docket for this final rulemaking.
    \40\ See document titled ``BART vs Alternative.xlsx'' in the
docket for this final rulemaking.
---------------------------------------------------------------------------

    Commenters argue that if the BART emission limit were lower, the
alternative would not be better than BART. For example, if EPA required
an emission limit representing a 90 percent reduction in NOX
emissions, annual NOX emissions would be lower than 5,000
tpy. However, as discussed in responses to similar comments, EPA has
determined that an 80 percent reduction in NOX emissions is
BART for FCPP. It is inappropriate to compare the alternative emission
control strategy against a target for BART that commenters would like
to see based on maximum emission reductions achieved without
consideration of site-specific characteristics of FCPP that EPA has
determined are not appropriate for FCPP.
    Commenters further argue that by offering FCPP a BART compliance
deadline of July 2018, EPA is illegally extending a mandatory deadline
under the CAA, and that installation of SCR at Units 4 and 5 can easily
be accomplished within 2 years. EPA disagrees and notes that the
compliance timeframe for EPA's BART determination requiring SCR

installation on all 5 units is within 5 years of the effective date of
the final rule, consistent with the maximum time allowed under the CAA
Sec.  169A(g)(4) in the definition of ``as expeditiously as
practicable''. The commenter is confusing requirements under BART and
requirements under the alternative to BART. EPA is not extending the
BART compliance deadline beyond a 5-year period. Rather, EPA is
allowing additional time to implement the alternative emission control
strategy, as allowed under the provisions of the RHR for the
implementation of ``other alternative measure rather than to require
sources subject to BART to install, operate, and maintain BART'' (See
40 CFR 51.308(e)(2)). In our Supplemental Proposal, EPA cited the
requirement (under 40 CFR 51.308(e)(2)(iii)) that ``all necessary
emission reductions take place during the period of the first long-term
strategy for regional haze''.
    EPA disagrees with commenters that reductions under the alternative
to BART violates 40 CFR 51.308(e)(2)(iii). The requirement simply
states the reductions take place during the period of the first long
term strategy and does not specifically prescribe that those reductions
must take place at the beginning, middle, or end of the period of the
first long-term strategy.

H. Other Comments

    Comment: Forty-five private citizens and several private citizens
who submitted written comments at a public hearing explicitly stated
that they support EPA's efforts to clean up FCPP. Many of these
commenters asked for the strictest regulations. Another private citizen
implied that EPA should act to clean up emissions from FCPP and noted
that cleaner air will result in a cleaner Colorado snow pack, which
will result in cleaner water in the Colorado River.
    Twelve private citizens and a few private citizens who submitted
written comments at a public hearing stated that FCPP should be de-
commissioned. Several of these commenters asserted that the plant
should only be shut down if it cannot cease emitting pollutants, while
others stated the plant should be shut down immediately.
    Nine private citizens and some of the private citizens who
submitted written comments at a public hearing stated that renewable
energy sources can be used in place of coal-fired power plants.
    Response: EPA acknowledges the comments supportive of our proposals
but disagrees with commenters that suggest that FCPP should be de-
commissioned or shut down immediately.
    In addition to other CAA programs, EPA assesses air quality with
respect to NAAQS. The Four Corners area is designated attainment for
each of the NAAQS.\41\ This means that the air quality in the Four
Corners area is meeting the national health-based standards set by EPA.
---------------------------------------------------------------------------

    \41\ Please see http://www.epa.gov/region09/air/maps/maps_top.html for EPA Region IX air quality designations.
---------------------------------------------------------------------------

    For this action, EPA finds that under 40 CFR 49.11, it is necessary
or appropriate to achieve emissions reductions of NOX from
FCPP required by the CAA's Regional Haze program. NOX is a
significant contributor to visibility impairment in the numerous
mandatory Class I Federal areas surrounding FCPP. The emission
reductions finalized will help achieve the goals of the Regional Haze
Rule. The Regional Haze Rule however does not require nor does it
authorize EPA to de-commission or shut down facilities to achieve the
goals of the rule.
    EPA agrees with commenters who stated that renewable energy sources
can be used in place of coal-fired power plants. However, the Regional
Haze Rule does not require that coal-fired facilities use or switch to
renewable energy sources to meet the goals of the rule.
    Comment: The Navajo Nation pointed out that as a federal agency,
EPA has a trust responsibility to the Navajo Nation that requires it to
give special consideration to the Nation's best interests in any
action.\42\ Because of the significant economic interest of the Navajo
Nation in FCPP the commenter asserted that the BART proposal clearly
implicates the Nation's tribal trust interests. The commenter further
contended that since EPA is adopting a FIP for BART in lieu of a TIP by
the Navajo Nation, the EPA is essentially ``standing in the shoes'' of
the Nation for purposes of making the BART determination and should,
therefore, defer to tribal views when making environmental policy
decisions and give the same weight to the BART factors that the Navajo
Nation would in determining BART for FCPP; that is, to the extent that
the Nation recommends a particular control technology as BART for power
plants located on the Nation's lands, EPA should give substantial
weight to that recommendation as part of its decision-making process.
(The commenter asserted that advanced combustion controls, rather than
SCR, properly represent BART for FCPP.) Thus, the commenter stated that
as the Nation's trustee and ``stand-in'' for the BART determination for
FCPP, the EPA should not select a more stringent BART than the
commenter stated is required by the Regional Haze Rule to achieve
``reasonable progress'' where doing so would likely have substantial
adverse impacts on the Navajo Nation.
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    \42\ To support this assertion, the commenter cited Executive
Order 13175 (65 FR 67249, November 6, 2000; EPA Policy on
Consultation and Coordination With Indian Tribes, section IV
``Guiding Principles,'' May 4, 2011 (EPA Tribal Policy); and the
1984 EPA Indian Policy.
---------------------------------------------------------------------------

    The commenter also stated that EPA has a duty to undertake
government-to-government consultations with the Navajo Nation, and that
EPA must coordinate with the Navajo Nation in its relationship with,
and reliance on, other federal agencies. The commenter pointed out that
EPA relies on data provided by the NPS, another federal trustee of the
Nation, but has not coordinated consultation between NPS and the Navajo
Nation on this rulemaking. The commenter indicated that the May 2011
EPA Tribal Policy recognizes that such coordination is required under
Executive Order 13175 and asserted that EPA should coordinate
consultation with the U.S. Forest Service (who provided data used in
the proposed rulemaking) as well as various Department of the Interior
(DOI) agencies that have an interest in this rulemaking, including NPS,
the Bureau of Indian Affairs, the U.S. Fish and Wildlife Service, the
Office of Surface Mining Reclamation and Enforcement, and potentially
the Bureaus of Land Management and Reclamation. The commenter added
that consultation with Department of Energy (DOE) may be important in
regard to including FCPP in a study that DOE is proposing to carry out
for NGS, which also is located on the Navajo reservation and uses
Navajo coal.
    Response: It is EPA's policy (EPA Policy on Consultation and
Coordination with Indian Tribes, May 4, 2011, (EPA Tribal Consultation
Policy)) \43\ to consult on a government-to-government basis with
federally recognized tribal governments when EPA actions and decisions
may affect tribal interests. Consultation is a process of meaningful
communication and coordination between EPA and tribal officials prior
to EPA taking actions or implementing decisions that may affect tribes.
One of the primary goals of the EPA Tribal Policy is to fully implement
both Executive Order 13175 and the 1984 Indian Policy, with the
ultimate

goal of assuring tribal concerns and interests are considered whenever
EPA's actions may affect tribes by strengthening the consultation,
coordination, and partnership between tribal governments and EPA.
---------------------------------------------------------------------------

    \43\ See ``EPA Policy on Consultation and Coordination with
Indian Tribes'', May 4, 2011, in the docket for this final
rulemaking.
---------------------------------------------------------------------------

    For this action, EPA consulted with Navajo Nation in accordance
with the Executive Order and EPA's Indian Policies on numerous
occasions. A record of all consultations with tribes is included in the
Docket for this final rulemaking.\44\ As stated in the 2011 EPA Tribal
Consultation Policy, as a process, consultation includes several
methods of interaction that may occur at different levels.\45\ EPA
consulted with the Navajo Nation at various times throughout the
process at various levels of government, including in-person meetings
with the President of the Navajo Nation on May 19, 2011, and June 13,
2012.
---------------------------------------------------------------------------

    \44\ See document ``Timeline of all Tribal Consultations on
BART.docx'' in the docket for this final rulemaking.
    \45\ See ``EPA Policy on Consultation and Coordination with
Indian Tribes'', May 4, 2011, in the docket for this final
rulemaking.
---------------------------------------------------------------------------

    EPA acknowledges the significant interest of the Navajo Nation in
FCPP. Based on the results from the original analysis for the proposed
BART determination, EPA concluded that the installation and operation
of SCR on all five units at FCPP would not adversely affect the
competitiveness of FCPP's cost to generate electricity compared to the
cost to purchase electricity on the open market. Thus, EPA infers that
a BART determination requiring SCR on all five units, in itself, should
not force the closure of FCPP. EPA notes that we do not expect adverse
impacts to the Navajo Nation if FCPP continues operating all units and
complies with BART. However, potential adverse impacts to the Navajo
Nation may result if the owners of FCPP choose to implement the
optional BART Alternative. At the request of the Navajo Nation during
consultation, EPA commissioned a study to examine potential adverse
impacts to Navajo Nation from the BART Alternative. The results of this
analysis were discussed with President Shelly during a consultation
meeting on July 13, 2012 and will be provided to President Shelly by
letter as a follow-up to our consultation.
    EPA agrees that we are acting to implement the BART requirements
for a facility located on the Navajo Reservation in circumstances in
which the Tribe has not applied, or been approved, to administer the
applicable CAA program. EPA is mindful of the Navajo Nation's views and
recommendations, particularly where there is a potential substantial
adverse economic impact to the Navajo Nation. We disagree however that
the Agency must ``defer to tribal views when making environmental
policy decisions''. EPA is carrying out the requirements of the CAA and
the Regional Haze Rule pursuant to our authority to implement these
requirements in the absence of an EPA-approved program. EPA notes that
the CAA and the TAR provide mechanisms for eligible Indian tribes to
seek approval of tribal programs should they wish to administer CAA
requirements.
    For this action EPA carefully considered the unique location of
FCPP with respect to proximate Class I areas as well as its economic
importance to Navajo Nation. We conducted a detailed analysis of
available emission control technologies against the five-factors
specified in the BART Guidelines. EPA also conducted extensive air
modeling (included in the Supplemental Proposal). Additionally, we have
considered the numerous comments we received on our proposals. In
making our final decision we have had to balance the findings of our
analysis along with the interests of various stakeholders, our unique
government-to-government relationship with tribes, and our
responsibility to carry out the requirements of the CAA and Regional
Haze Rule to achieve reasonable progress towards visibility
improvements.
    This final FIP strikes a reasonable balance between reducing
emissions to improve visibility while allowing for the facility to
implement those reductions in a manner that is consistent with its
continued operation and economic viability.
    EPA has received information and comments from numerous federal
agencies for this rulemaking and considered these in our final decision
(all information and comments are included in the docket). EPA plans to
coordinate with the Department of Interior or other federal agencies,
as appropriate, in any future tribal consultations related to BART for
FCPP or the Navajo Generating Station, the other coal-fired power plant
located in Navajo Nation.
    EPA acknowledges that the Department of Interior has contracted
with the National Renewable Energy Lab (NREL) of the Department of
Energy to examine renewable energy options for the Navajo Generating
Station, which is also located on the Navajo Nation and uses coal from
the Kayenta Mine, located on Navajo and Hopi land. Information on the
NREL study is available from DOI \46\ and will be included in the
docket for EPA's upcoming proposed rulemaking for NGS.
---------------------------------------------------------------------------

    \46\ http://www.doi.gov/navajo-gss/index.cfm.
---------------------------------------------------------------------------

    Comment: One public interest advocacy group, the Navajo Nation, and
one environmental advocacy group supported establishment of a 20
percent opacity limit for material handling. The public interest
advocacy group stated that the FCPP site is subject to numerous dust-
storm events originating in northwestern Arizona, and the additional
fugitive dust that could be picked up by these strong winds at the FCPP
property added to the incoming dust from the west makes breathing and
outdoor activity miserable on from 4 to 12 days per year for residents
of Montezuma County, CO and San Juan County, NM.
    One of the owners of FCPP noted that in addition to the proposed
BART requirements, EPA proposed separate fugitive dust control
requirements and a 20 percent opacity limitation for certain material
handling operations, which are unrelated to the CAA visibility program.
The commenter laid out the history of EPA's past attempt to apply
fugitive dust controls to FCPP. The commenter argued that the proposed
requirements are arbitrary and should not be finalized because the
facts upon which EPA relies are inadequate to support the conclusion
that fugitive dust control requirements are ``necessary or
appropriate'' to protect air quality at FCPP.
    Response: EPA acknowledges support for establishing a 20 percent
opacity limit for material handling and a Dust Control Plan at FCPP.
EPA has finalized both these requirements. EPA notes that the Dust
Control Plan shall include a description of the dust suppression
methods for controlling dust from site activities including coal
handling and storage facilities, ash handling, storage, and landfills,
and road sweeping activities. The 20 percent opacity standard will
apply to any crusher, grinding mill, screening operation, belt
conveyor, or truck loading or unloading operation.
    EPA agrees with the commenter that the fugitive dust and 20 percent
opacity limit are unrelated to the CAA visibility program. EPA also
agrees with the history laid out by the commenter on fugitive dust
controls at FCPP. EPA included these dust control requirements in the
previous FIP finalized in 2007 because EPA considered them necessary or
appropriate under the TAR to assure that dust from this facility does
not

contribute to possible violations of the NAAQS for PM10. The
commenter is correct that EPA withdrew the 2007 FIP requirements on
dust when APS appealed the rule. EPA had not adequately documented in
the record for the 2007 FIP our basis for establishing the 20 percent
opacity regulation. For the 2007 FIP, EPA chose not to defend our
position based on the record for that rulemaking and instead chose to
address the issue in a subsequent FIP action, such as this one.
    EPA disagrees with the commenter that the fugitive dust and opacity
requirements are arbitrary or that our argument is inadequate to
support our conclusion that fugitive dust control requirements are
necessary or appropriate to protect air quality at FCPP.\47\
---------------------------------------------------------------------------

    \47\ For example, see document titled ``Four Corners Power Plant
Complaint to MSHA'' in the docket for this final rulemaking.
---------------------------------------------------------------------------

    EPA's basis for finding that it is necessary or appropriate for
FCPP to comply with a requirement to limit its material handling
emissions to 20 percent or less is being set forth in this rulemaking.
FCPP receives approximately 10 million tons of coal per year for
combusting in Units 1-5. This massive quantity of coal moves by
conveyor belt across FCPP's property line through numerous transfer
points before the coal is loaded into the storage silos that feed the
individual combustion units. Each of these transfer points along with
the conveyor belts has the potential for PM emissions. The PM can be
minimized through the use of collection devices or dust suppression
techniques such as covered conveyors or spraying devices at the
transfer points. EPA first promulgated dust control requirements for
new coal handling equipment on January 15, 1976 (41 FR 2232). This rule
affected equipment constructed or modified after the 1970s that
affected facilities built or modified after October 24, 1974. The
purpose of these New Source Performance Standards (NSPS) was:

    NSPS implement CAA section 111(b) and are issued for categories
of sources which have been identified as causing, or contributing
significantly to, air pollution which may reasonably be anticipated
to endanger public health or welfare. The primary purpose of the
NSPS are to help States attain and maintain ambient air quality by
ensuring that the best demonstrated emission control technologies
are installed as the industrial infrastructure is modernized.

See 74 FR 51951 (October 8, 2009).

    EPA's basis for finding that it is necessary or appropriate for
FCPP to comply with a requirement to limit its material handling
emissions to 20 percent or less is being set forth in this rulemaking.
EPA has promulgated a 20 percent opacity limit for all new coal
handling operations built after the mid 1970s in the New Source
Performance Standards. This NSPS standard applied to any coal handling
equipment processing more than 200 tons per day of coal. Because FCPP
receives approximately 10 million tons of coal per year for combusting
in Units 1-5, it may be processing more than 27,000 tons per day. This
is more than 100 times the smallest size coal handling operation
subject to the NSPS, and which EPA considered necessary for protecting
public health and welfare. As mentioned before, FCPP's massive quantity
of coal moves by conveyor belt across FCPP's property line, passing
through numerous transfer points before the coal is loaded into the
storage silos that feed the individual pulverizers and combustion
units. Each of these transfer points along with the conveyor belts has
the potential for PM emissions. The PM can be minimized by collection
devices or dust suppression techniques such as covered conveyors or
spraying devices at the transfer points.
    FCPP and the BHP Navajo Mine that provides FCPP's coal are within
close proximity to Morgan Lake which is a recreational lake with public
access just beyond the FCPP's property line. Excess dust can blow over
the FCPP property line to Morgan Lake and adjacent properties. EPA and
Navajo Nation EPA receive numerous complaints from Navajo Tribal
members concerning excess dust emissions generated from the ash
landfill FCPP maintains, as well as from the other material handling
and storage operations.
    EPA concludes that it is necessary or appropriate to set
enforceable fugitive dust/PM suppression measures to protect ambient
air quality because (1) there is a large potential for dust emissions
from the facility coal and ash operations to be emitted and blow across
the property line, (2) EPA and Navajo Nation EPA have received numerous
complaints concerning excess dust from the ash landfill and other
operations, and (3) these activities are occurring in close proximity
to a public access area.
    EPA disagrees with the commenter that the 20 percent opacity limit
is arbitrary and capricious. While EPA acknowledges that New Mexico
does not have a general opacity limit that applies to dust, the other
three Four Corners States do. In Arizona and Colorado a general 20
percent opacity limit applies at all facilities including
``grandfathered'' coal-fired EGUs. In Utah the general opacity limit
for facilities built before the CAA in 1971 is a 40 percent opacity
limit. However, all of Utah's large coal-fired EGUs were constructed
after 1971 and are subject to a 20 percent general opacity limit, i.e.,
the NSPS. Therefore, if FCPP had been built a few years later or a few
miles in a different direction, it would be subject to the NSPS or a
SIP provision limiting its coal material handling and storage
operations to 20 percent opacity.
    Because FCPP is located on the Navajo Nation where generally
applicable limits that often are included in SIPs do not exist and
because it was constructed nearly 40 years ago, and because dust
control measures at coal-fired power plants are important for
maintaining the PM10 NAAQS in the areas adjacent to the
power plant properties, EPA finds that it is necessary or appropriate
to impose measures to limit the amount of PM emissions from these
material handling and storage emission sources. EPA recently imposed
similar dust control requirements at the Navajo Generating Station,
which is also on the Navajo Nation. 75 FR 10174.
    Comment: One environmental advocacy group stated that the EPA must
consult in accordance with sections 7(a)(1) and 7(a)(2) of the
Endangered Species Act (ESA) with regards to the proposed FIP because
of the impacts of FCPP on threatened and endangered fish, wildlife, and
plants and their designated critical habitats, which the commenter
discussed at some length. The commenter added that EPA has discretion
under the TAR to limit emissions of mercury, selenium, and other
pollutants that may adversely affect the razorback sucker and Colorado
pikeminnow, and these species' critical habitats. According to the
commenter, this discretion is part of what triggers the Agency's
obligation to consult pursuant to sections 7(a)(1) and 7(a)(2) of the
ESA.
    Response: EPA disagrees with the commenter that determining BART
and promulgating this FIP for FCPP necessitates ESA Section 7
consultation. EPA understands that the U.S. Fish and Wildlife Service
(FWS) is primarily concerned about the effects of mercury and selenium
on endangered fish species in the San Juan River. EPA notes that under
the BART Alternative, mercury and selenium emissions will be reduced
from FCPP due to the closure of Units 1-3. Additionally, EPA's national
MATS rule set new emission limits for mercury that would apply to Units
1-3 at FCPP if those units continue operation. EPA further notes that
the goal of the Regional Haze Rule is to reduce emissions of
visibility-

impairing pollutants in order to restore visibility to natural
conditions at the mandatory Federal Class I areas, and mercury and
selenium do not affect visibility. Therefore, EPA does not have
authority to regulate emissions of mercury or selenium under BART.
    Comment: The coal supplier for FCCP questioned the legality of
EPA's approach to the Regional Haze program at FCPP. According to the
commenter, EPA's BART and better-than-BART proposals are not authorized
because BART is not ``reasonably separable'' from the remainder of a
regional haze implementation plan for the Navajo Nation under the TAR.
The commenter concluded that the minimum amount of reasonable progress
that BART needs to achieve in a given Class I area cannot be determined
until the amount of reasonable progress achieved by other CAA and state
programs is subtracted from that area's reasonable progress goal. The
commenter asserted that the NOX emission reductions that
would be achieved under the supplemental proposal are in excess of the
amount required to achieve the reasonable progress goals in the area.
    The commenter added that EPA must consider the reasonable progress
already achieved by past FCPP emission reductions. The commenter
concluded that any necessary reasonable progress remaining to be
achieved by NOX BART at FCPP cannot be determined until the
reasonable progress achieved by prior emissions reductions at FCPP is
considered.
    The commenter stated that EPA's BART determination did not properly
weigh the statutory factors. Specifically, the commenter indicated that
individual Class I area visibility improvements from SCR have not been
compared with respect to the statutory factors to visibility
improvements from LNB, and the actual amounts of those improvements
have not been measured against the amounts of improvements needed to
meet reasonable progress goals.
    Response: EPA disagrees with the commenter who questioned the
legality of our approach and that stated that EPA's BART and ``better-
than-BART'' proposals are not authorized because BART is not
``reasonably separable'' from the remainder of a regional haze
implementation plan for the Navajo Nation under the TAR. We also
disagree that our approach to the Regional Haze program impermissibly
isolates BART from the context of the overall reasonable progress goal
in violation of the CAA, and that our proposed BART for FCPP should be
withdrawn.
    EPA's authority to promulgate a source-specific FIP in Indian
County is based on CAA sections 301(a) and (d)(4) and section 49.11 of
the TAR provides EPA with broad discretion to promulgate regulations
directly for sources located in Indian country, 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''. As such, because the
Navajo Nation has not adopted a TIP for Regional Haze, the TAR provides
discretion to EPA to determine which requirements of the Regional Haze
Rule are necessary or appropriate to protect air quality, and to
promulgate just those implementation plan provisions accordingly.
Because two stationary sources on the Navajo Nation meet the BART
eligibility criteria, EPA has determined that it is necessary or
appropriate at this time to evaluate source-specific FIPs to implement
the BART requirement of the RHR for each BART-eligible facility located
on the Navajo Nation. The basis for our determination is discussed in
several prior responses (See, e.g., Sections 2.1, 4.1.2, and 8.1). The
Courts have agreed with EPA that it may implement requirements that are
necessary or appropriate without providing for all aspects of the CAA
programs at a single time. See Arizona Public Service v. EPA, 562 F.3d
1116 (10th Cir. 2009).
    EPA disagrees with the comment that BART must be established in
relation to reasonable progress goals. State or Tribal Implementation
Plans for Regional Haze must establish goals that provide for
reasonable progress towards achieving natural visibility conditions for
each mandatory Class I Federal area located within its borders (40 CFR
51.308(d)(1). FCPP and NGS are both located within the Navajo Nation
Indian Reservation, and for the reasons outlined above, EPA is
conducting BART determinations for each facility. There are no
mandatory Class I Federal areas as designated by Congress located
within the Navajo Nation.\48\ EPA further notes that the five-factor
analysis outlined in the BART Guidelines, which were promulgated as a
notice and comment rulemaking, does not require consideration of
reasonable progress goals in determining BART for a given facility.
---------------------------------------------------------------------------

    \48\ EPA notes that Navajo Nation has established its own parks
and monuments, including Monument Valley, Canyon de Chelly, and the
Four Corners Monument, however, these parks are not mandatory Class
I Federal Areas as set by Congress.
---------------------------------------------------------------------------

    EPA also disagrees that the minimum amount of reasonable progress
that BART needs to achieve in a given Class I area cannot be determined
until the amount of reasonable progress achieved by other CAA and state
programs is subtracted from that area's reasonable progress goal.
Neither the CAA nor Regional Haze regulations set any quantitative
presumptive targets for the amount of reasonable progress that must be
achieved. Rather, the regulations allow for flexibility in determining
the amount of reasonable progress towards the ultimate goal of
returning to natural background conditions.
    EPA disagrees with the commenter that EPA must consider the
reasonable progress already achieved by past FCPP emission reductions
and that previously uncontrolled SO2, NOX, and PM
emission rates prior to previous FIPs for FCPP should serve as the
baseline for measuring visibility improvements. In its own five-factor
BART analysis, APS used actual NOX emissions from 2001-2003
as baseline emissions for determining visibility improvement from
NOX controls. NOX emissions from 2001-2003 were
generally consistent with and representative of NOX
emissions over the past ten years. EPA agrees with APS in its use of
actual emissions over a recent time frame, rather than attempting to
rely on previously uncontrolled emissions emission rates from FCPP as a
baseline.
    Additionally, nothing in the BART regulations or guidance requires
that EPA consider past emission reductions in determining BART under
the RHR. However, as part of the required five-factor analysis for BART
EPA did evaluate and consider the current pollution control equipment
in use at FCPP.
    EPA disagrees with the comment that EPA's BART determination did
not properly weigh the statutory factors. As discussed elsewhere in
this document, the BART Guidelines allow the reviewing authority
(State, Tribe, or EPA) the discretion to determine how to weigh and in
what order to evaluate the statutory factors (cost of compliance, the
energy and non air quality environmental impacts of compliance, any
existing pollution control technology in use at the source, the
remaining useful life of the source, and the degree of improvement in
visibility which may reasonably be anticipated to result from the use
of such technology), as long as the reviewing authority justifies its
selection of the ``best'' level of control and explains the CAA factors

that led the reviewing authority to choose that option over other
control levels (see 70 FR 39170, July 6, 2005). EPA provided a detailed
justification for our BART evaluation process and five-factor analysis
in the TSD for our proposed BART determination.
    EPA also disagrees with the comment that individual Class I area
visibility improvements from SCR have not been compared with respect to
the statutory factors to visibility improvements from LNB. In the
preamble to our October 19, 2010, proposed BART determination and in
the accompanying TSD, EPA compared the anticipated visibility
improvement from SCR with the anticipated improvement from combustion
controls (LNB or LNB+OFA) (See 75 FR 64230, Table 3, and TSD Tables 36-
39), and noted that EPA modeled the visibility improvement from SCR to
far exceed the modeled improvement from combustion controls.

IV: Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action will finalize a source-specific FIP for a single
generating source. This type of action is exempt from review under
Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR
3821, January 21, 2011).

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 final FIP applies to a single facility,
Four Corners Power Plant, 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 action on small
entities, I certify that this final action will not have a significant
economic impact on a substantial number of small entities. The Four
Corners Power Plant is not a small entity and the FIP for Four Corners
Power Plant being finalized today does not impose any compliance
requirements on small entities. See Mid-Tex Electric Cooperative, Inc.
v. FERC, 773 F.2d 327 (D.C. Cir. 1985).

D. Unfunded Mandates Reform Act (UMRA)

    This rule will impose an enforceable duty on the private sector
owners of FCPP. However, this rule does not contain a Federal mandate
that may result in expenditures of $100 million (in 1996 dollars) or
more for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. EPA's estimate for the total annual
cost to install and operate SCR on all five units at FCPP does not
exceed $100 million (in 1996 dollars) in any one year. Thus, this rule
is not subject to the requirements of sections 202 or 205 of UMRA. This
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. This rule will not impose direct
compliance costs on the Navajo Nation, and will not preempt Navajo law.
This final action will reduce the emissions of two pollutants from a
single source, the Four Corners Power Plant.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or in the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This final action requires emission
reductions of NOX at a specific stationary source located in
Indian country. Thus, Executive Order 13132 does not apply to this
action.

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

    Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) EPA may not issue a regulation that has tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
    EPA has concluded that this action will have tribal implications.
However, it will neither impose substantial direct compliance costs on
tribal governments, nor preempt Tribal law. This final rule requires
FCPP, a major stationary source located on the Navajo Nation, to reduce
emissions of NOX under the BART requirement of the Regional
Haze Rule. The owners of FCPP submitted a BART Alternative to EPA for
consideration that would provide compliance flexibility to the owners
and result in greater reasonable progress than BART toward the national
visibility goal. This BART Alternative involves closure of Units 1-3 at
FCPP and installation of add-on pollution controls to Units 4 and 5.
EPA issued a Supplemental Proposal to allow the owners of FCPP the
option to implement BART or the BART Alternative. Because the BART
Alternative involves the optional closure of Units 1-3 and an
associated

decline in the amount of coal mined and combusted, taxes and royalties
paid to the Navajo Nation by the owners of FCPP and BHP Billiton,
operator of the coal mine that supplies FCPP, are expected to decline.
The closure of Units 1-3 is not expected to result in layoffs, but is
expected to result in a reduction in workforce at the mine and power
plant over time through attrition.
    EPA consulted with tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development. EPA proposed to determine that it was
necessary or appropriate to implement the BART requirement of the
Regional Haze Rule for the Navajo Nation to protect air quality and
improve visibility at the sixteen mandatory Class I Federal areas
surrounding FCPP and the eleven Class I areas surrounding NGS. EPA
first put forth an Advanced Notice of Proposed Rulemaking (ANPR) on
August 28, 2009 to accept comment on preliminary information provided
by FCPP and NGS and to begin the consultation process with affected
tribes and the Federal Land Managers. EPA has consulted on numerous
occasions with officials of the Navajo Nation in the process of
developing this FIP, including meetings with the President Ben Shelly
of the Navajo Nation and his staff on May 19, 2011, after the close of
the public comment period for our proposed BART determination and
Supplemental Proposal, and on June 13, 2012, prior to our final action.
The agendas for these two consultation meetings are provided in the
docket for this final rulemaking.\49\ A timeline of correspondence and
consultation with tribes on both power plants is included in the docket
for this final rulemaking.
---------------------------------------------------------------------------

    \49\ See document number 0222 in docket EPA-R09-OAR-2011-0683
titled ``Agenda May 19, 2011 Meeting; Gov to Gov Consultation with
Navajo Nation'', and document titled: ``2012--0613 Consultation with
Navajo Nation agenda and attendees.pdf'' in the docket for this
final rulemaking.
---------------------------------------------------------------------------

    Several tribes, including the Navajo Nation, submitted comments on
the ANPR, which we considered in developing our proposal and the
accompanying Technical Support Document. The main concern expressed by
the Navajo Nation was that requiring the top NOX control
option, selective catalytic reduction (SCR) as BART would cause FCPP to
close. In developing our proposed BART determination, EPA conducted an
analysis to examine whether requiring SCR on Units 1-5 at FCPP would
cause electricity generation costs to exceed the cost to purchase power
on the wholesale market. Based on our analysis, we determined that
electricity generation costs resulting from installation of SCR would
not make FCPP uneconomical compared to the wholesale power market;
therefore, we concluded that our proposed BART determination was
unlikely to cause FCPP to close.
    The Navajo Nation provided comments on our proposed rule and
Supplemental Proposal, in consultation and by letter, which EPA
considered in developing this final rule. The Navajo Nation also
expressed concern about the potential adverse impacts of the BART
Alternative to the Navajo Nation and requested that EPA conduct an
analysis to estimate potential adverse impacts to the Navajo Nation.
Pursuant to EPA's customary practice of engaging in extensive and
meaningful consultation with tribes and tribal authorities with regard
to relevant Agency actions, EPA commissioned an analysis of the
optional BART Alternative to estimate potential adverse impacts to the
Navajo Nation if the owners of FCPP chose to retire Units 1-3. EPA
communicated these potential impacts to the Navajo Nation in our
consultation meeting with President Shelly on June 13, 2012. The report
will be provided to President Shelly by letter as a follow-up to our
consultation with the Navajo Nation.
    The Navajo Nation also expressed support for phased-implementation
of controls to provide compliance flexibility to FCPP. The final rule
allows the owners of FCPP to choose between BART or the BART
Alternative and provides timeframes for phased-implementation of
control options.
    EPA summarized and responded to comments from the Navajo Nation and
the Salt River Pima Maricopa Indian Community received on the ANPR in
the Technical Support Document for our proposed rulemaking. Following
our meeting with President Shelly on May 19, 2011, EPA sent a follow up
letter summarizing and responding to the concerns expressed by the
Navajo Nation.\50\ In coordination with this final rulemaking, EPA will
also be sending a letter to President Shelly that summarizes and
responds to the comments raised in his letter to EPA dated June 2,
2011.
---------------------------------------------------------------------------

    \50\ See document 0231 in docket EPA-R09-OAR-2011-0683 titled
``EPA response to Navajo Nation dated 09/06/2011''.
---------------------------------------------------------------------------

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

    Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be economically significant as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it
requires emissions reductions of NOX from a single
stationary source. Because this action only applies to a single source
and is not a rule of general applicability, it is not economically
significant as defined under Executive Order 12866, and does not have a
disproportionate effect on children. However, to the extent that the
rule will reduce emissions of NOX, which contributes to
ozone formation, the rule will have a beneficial effect on children's
health by reducing air pollution that causes or exacerbates childhood
asthma and other respiratory issues.

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

    This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12 (10) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. VCS are technical standards
(e.g., materials specifications, test methods, sampling procedures and
business practices) that are developed or adopted by the VCS bodies.
The NTTAA directs EPA to provide Congress, through annual reports to
OMB, with explanations when the Agency decides not to use available and
applicable VCS.
    Consistent with the NTTAA, the Agency conducted a search to
identify potentially applicable VCS. For the measurements listed below,
there are a number of VCS that appear to have possible use in lieu of
the EPA test

methods and performance specifications (40 CFR part 60, Appendices A
and B) noted next to the measurement requirements. It would not be
practical to specify these standards in the current 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;
    NOX Emissions--Continuous Emissions Monitors.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. This rule requires emissions reductions of two
pollutants from a single stationary source, Four Corners Power Plant.

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. Section 804 exempts from section 801 the following types
of rules (1) rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S.C 804(3). EPA is not required
to submit a rule report regarding today's action under section 801
because this action is a rule of particular applicability. This rule
finalizes a source-specific FIP for a single generating source.

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 October 23, 2012. 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: August 6, 2012.
Lisa P. Jackson,
Administrator.
    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 49.5512 is amended by adding paragraphs (i) and (j) to read
as follows:

Sec.  49.5512  Federal Implementation Plan Provisions for Four Corners
Power Plant, Navajo Nation.

* * * * *
    (i) Regional Haze Best Available Retrofit Technology limits for
this plant are in addition to the requirements of paragraphs (a)
through (h) of this section. All definitions and testing and monitoring
methods of this section apply to the limits in this paragraph (i)
except as indicated in paragraphs (i)(1) through (4) of this section.
The interim NOX emission limit in paragraph (i)(2)(ii) of
this section shall be effective 180 days after re-start of the unit
after installation of add-on post-combustion NOX controls
for that unit and until the plant-wide limit goes into effect. The
plant-wide NOX limit shall be effective no later than 5
years after October 23, 2012. The owner or operator may elect to meet
the plant-wide limit early to remove the individual unit limits.
Particulate limits for Units 4 and 5 shall be effective 60 days after
restart following the scheduled major outage for Units 4 and 5 in 2013
and 2014.
    (1) Particulate Matter from Units 4 and 5 shall be limited to 0.015
lb/MMBtu for each unit as measured by the average of three test runs
with each run collecting a minimum of 60 dscf of sample gas and with a
duration of at least 120 minutes. Sampling shall be performed according
to 40 CFR Part 60 Appendices A-1 through A-3, Methods 1 through 4 and
Method 5 or Method 5e. The averaging time for any other demonstration
of the particulate matter compliance or exceedance shall be based on a
6-hour average. Particulate testing shall be performed annually as
required by paragraph (e)(3) of this section. This test with 120 minute
test runs may be substituted and used to demonstrate compliance with
the particulate limits in paragraph (d)(2) of this section.
    (2) Plant-wide nitrogen oxide emission limits.
    (i) The plant-wide nitrogen oxide limit, expressed as nitrogen
dioxide (NO2), shall be 0.11 lb/MMBtu as averaged over a
rolling 30-calendar day period. NOX emissions for each
calendar day shall be determined by summing the hourly emissions
measured as pounds of NO2 for all operating units. Heat
input for each calendar day shall be determined by adding together all
hourly heat inputs, in millions of Btu, for all operating units. Each
day the rolling 30-calendar day average shall be determined by adding
together that day's and the preceding 29 days' pounds of NO2
and dividing that total pounds of NO2 by the sum of the heat
input during the same 30-day period. The results shall be the rolling
30-calendar day-average pound per million Btu emissions of
NOX.
    (ii) The interim NOX limit for the first 750 MW boiler
retrofitted with add-on post-combustion NOX control shall be
0.11 lb/MMBtu, based on a rolling

average of 30 successive boiler operating days.
    (iii) Schedule for add-on post-combustion NOX controls
installation
    (A) Within 4 years of the effective date of this rule, FCPP shall
have installed add-on post-combustion NOX controls on at
least 750 MW (net) of generation to meet the interim emission limit in
paragraph (i)(2)(ii)(A) of this section.
    (B) Within 5 years of the effective date of this rule, FCPP shall
have installed add-on post-combustion NOX controls on all
2060 MW (net) of generation to meet the plant-wide emission limit for
NOX in paragraph (i)(2)(i) of this section.
    (iv) Testing and monitoring shall use the 40 CFR part 75 monitors
and meet the 40 CFR part 75 quality assurance requirements. In addition
to these 40 CFR part 75 requirements, relative accuracy test audits
shall be performed for both the NOX pounds per hour
measurement and the heat input measurement. These shall have relative
accuracies of less than 20 percent. This testing shall be evaluated
each time the 40 CFR part 75 monitors undergo relative accuracy
testing.
    (v) If a valid NOX pounds per hour or heat input is not
available for any hour for a unit, that heat input and NOX
pounds per hour shall not be used in the calculation of the 30 day
plant-wide rolling average.
    (vi) Upon the effective date of the plant-wide NOX
average, the owner or operator shall have installed CEMS and COMS
software that complies with the requirements of this section.
    (3) In lieu of meeting the NOX requirements of paragraph
(i)(2) of this section, FCPP may choose to permanently shut down Units
1, 2, and 3 by January 1, 2014 and meet the requirements of this
paragraph to control NOX emissions from Units 4 and 5. By
July 31, 2018, Units 4 and 5 shall be retrofitted with add-on post-
combustion NOX controls to reduce NOX emissions.
Units 4 and 5 shall each meet a 0.098 lb/MMBtu emission limit for
NOX expressed as NO2 based on a rolling average
of 30 successive boiler operating days. A ``boiler operating day'' is
defined as any 24-hour period between 12:00 midnight and the following
midnight during which any fuel is combusted at any time at the steam
generating unit. Emissions from each unit shall be measured with the 40
CFR part 75 continuous NOX monitor system and expressed in
the units of lb/MMBtu and recorded each hour. A valid hour of
NOX data shall be determined per 40 CFR part 75. For each
boiler operating day, every valid hour of NOX lb/MMBtu
measurement shall be averaged to determine a daily average. Each daily
average shall be averaged with the preceding 29 valid daily averages to
determine the 30 boiler operating day rolling average. The
NOX monitoring system shall meet the data requirements of 40
CFR 60.49Da(e)(2) (at least 90 percent valid hours for all operating
hours over any 30 successive boiler operating days). Emission testing
using 40 CFR part 60 Appendix A Method 7E may be used to supplement any
missing data due to continuous monitor problems. The 40 CFR part 75
requirements for bias adjusting and data substitution do not apply for
adjusting the data for this emission limit.
    (4) By January 1, 2013, the owner or operator shall submit a letter
to the Regional Administrator updating EPA of the status of lease
negotiations and regulatory approvals required to comply with paragraph
(i)(3) of this section. By July 1, 2013, the owner or operator shall
notify the Regional Administrator by letter whether it will comply with
paragraph (i)(2) of this section or whether it will comply with
paragraph (i)(3) of this section and shall submit a plan and time table
for compliance with either paragraph (i)(2) or (3) of this section. The
owner or operator shall amend and submit this amended plan to the
Regional Administrator as changes occur.
    (5) The owner or operator shall follow the requirements of 40 CFR
part 71 for submitting an application for permit revision to update its
Part 71 operating permit after it achieves compliance with paragraph
(i)(2) or (3) of this section.
    (j) Dust. Each owner or operator shall operate and maintain the
existing dust suppression methods for controlling dust from the coal
handling and ash handling and storage facilities. Within ninety (90)
days after promulgation of this paragraph, the owner or operator shall
develop a dust control plan and submit the plan to the Regional
Administrator. The owner or operator shall comply with the plan once
the plan is submitted to the Regional Administrator. The owner or
operator shall amend the plan as requested or needed. The plan shall
include a description of the dust suppression methods for controlling
dust from the coal handling and storage facilities, ash handling,
storage, and landfills, and road sweeping activities. Within 18 months
of promulgation of this paragraph each owner or operator shall not emit
dust with opacity greater than 20 percent from any crusher, grinding
mill, screening operation, belt conveyor, or truck loading or unloading
operation.

[FR Doc. 2012-19793 Filed 8-23-12; 8:45 am]
BILLING CODE 6560-50-P


draft 4/ 13/ 04 8 HOUR OZONE NAAQS IMPLEMENTATION   FINAL RULE   PHASE I MAJOR CHANGES SINCE FEB. 26, 2004 VERSION 1. Many of the revisions were done for purposes of clarity or legal defensibility. 2. We've added regulatory text and preamble discussion related to the 5% classification adjustment available under section 181( a)( 4) and the voluntary reclassification under section 181( b)( 3). 3. Removal of RFG from the list of applicable measures under subpart 2 ( since RFG is really required under Title II of the Act. However, we say they're still applicable measures under the CAA in general, but that EPA is considering whether the RFG requirement would continue to be an applicable requirement in the future. 4. Added per requests from at least one state clarification of whether nonattainment NSR or PSD applies regarding issuance of new source permits in areas that were attainment under the 1 hour standard when they applied for a permit but that are subsequently designated nonattainment before the permit is issued. ( The answer is that NA NSR must be met). 5. Revisions to the rationale for selecting classification option 2 and rejecting the other options considered and revisions to the comments and responses on classification options. 6. Most significantly, the rule and preamble have been revised to provide that 1 hour NSR obligations would not apply after the 1 hour standard is revoked. When the standard is revoked ( 1 year after the effective date of the 8 hour designations), a State could remove from its SIP those NSR provisions under the 1 hour standard with a demonstration under section 110( l) of the Act that such revision would not interfere with timely attainment or reasonable further progress.

OTHER REVISIONS:

7. Some sections have been restructured and reorganized. These sections include those on classifications and anti backsliding ( particularly related to the category of areas that are initially classified as attainment for the 8 hour standard). 8. A glossary of acronyms/ abbreviations was added ( similar to that in proposal). 9. A table of contents and summary of the final rule were added.