[Federal Register Volume 67, Number 27 (Friday, February 8, 2002)]
[Rules and Regulations]
[Pages 6130-6136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3100]



[[Page 6129]]

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Part V





Environmental Protection Agency





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40 CFR Part 52



Approval and Promulgation of Implementation Plans: Revision of the 
Visibility FIP for NV; Final Rule

  Federal Register / Vol. 67 , No. 27 / Friday, February 8, 2002 / 
Rules and Regulations  

[[Page 6130]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NV034-FIP; FRL-7140-6]


Approval and Promulgation of Implementation Plans: Revision of 
the Visibility FIP for NV

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a revision to the long-term strategy portion 
of the Nevada federal implementation plan (FIP) for Class I visibility 
protection. This revision concerns emissions reduction requirements for 
the Mohave Generating Station (MGS) located in Clark County, Nevada. 
The new requirements are based on a consent decree entered into by the 
owners of MGS and the Grand Canyon Trust (GCT), the Sierra Club, and 
the National Parks and Conservation Association (NPCA). The emissions 
reductions resulting from compliance with the consent decree will 
address concerns raised by the Department of the Interior (DOI) 
regarding MGS's contribution to visibility impairment at the Grand 
Canyon National Park (GCNP) due to sulfur dioxide (SO2) 
emissions. In addition, incorporating the requirements of the consent 
decree into the long-term strategy of the Nevada Visibility FIP will 
allow for reasonable progress toward the national visibility goal with 
respect to the MGS's contribution to visibility impairment at GCNP due 
to SO2 emissions according to the criteria set forth in 
Section 169A(g)(1) of the Clean Air Act.

EFFECTIVE DATE: This rule is effective on March 11, 2002.

ADDRESSES: Materials in Docket Number A-2001-04 related to this final 
rulemaking are available for review during normal business hours at the 
following locations: EPA Region IX, Air Division, 75 Hawthorne Street, 
San Francisco, California 94105-3901; and EPA, Air Docket (6102), Ariel 
Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
This document is also available as an electronic file on the EPA Region 
IX Web Page at http://www.epa.gov/region09/air/mohave.

FOR FURTHER INFORMATION CONTACT: Steve Frey at (415) 972-3990, Air 
Division (AIR-1), EPA Region IX, 75 Hawthorne Street, San Francisco, 
California 94105-3901.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

I. Background

    EPA published a proposed rule in the Federal Register (65 FR 45003) 
on July 20, 2000, to revise the long-term strategy in Nevada's 
Visibility FIP to incorporate the requirements of the consent decree 
for MGS. EPA provided a 30-day public comment period and received 
comments from six parties on the proposed rule. These comments and 
EPA's responses are provided in section III of this document. Please 
refer to the proposed rule for further details on the statutory and 
regulatory framework, visibility impairment at GCNP, the citizen suit 
against MGS, and advance rulemaking actions.

II. Review and Revision of Nevada Visibility FIP Long-Term Strategy

    This rule is EPA's first report assessing the long-term visibility 
strategy for Nevada since promulgating the Nevada Visibility FIP. We 
reviewed the long-term strategy only for the purpose of addressing 
DOI's certification of existing visibility impairment at GCNP and MGS's 
contribution to that impairment, and evaluating whether the terms of 
the Mohave consent decree will make reasonable progress toward the 
national visibility goal. This revision of the long-term strategy of 
the Nevada Visibility FIP will allow for reasonable progress toward the 
CAA national visibility goal with respect to MGS's contribution to 
visibility impairment at GCNP due to SO2 emissions. However, 
EPA is not conducting a comprehensive review of the long-term strategy 
of the Nevada Visibility FIP at this time. Federal land managers have 
not provided any information for such a review and EPA is not aware of 
any evidence that visibility impairment at any other Class I area can 
be attributed to a specific source or group of sources located in 
Nevada. Moreover, the National Park Service (NPS) has reviewed the 
consent decree and believes that an EPA rulemaking which adopts the 
emission limits and other requirements from the decree is an 
appropriate means of addressing its concerns regarding the impact of 
SO2 emissions from MGS on visibility impairment at GCNP. For 
more information on the long-term strategy review and consultation with 
federal land managers (FLM), please refer to the proposed rule.

III. Public Comments and EPA Responses

    EPA received comments on the proposed rule from Southern California 
Edison, Peabody Group, Environmental Defense, Grand Canyon Trust, 
Sierra Club, and one private citizen. A summary of their comments and 
EPA's responses are provided below.
    Comment 1: EPA should incorporate the settlement terms in the 
Nevada Visibility FIP as complete satisfaction of any statutory or 
regulatory requirements that could apply to MGS as a result of possible 
visibility impacts at GCNP. The final rule should indicate that the 
consent decrees's emission limits supercede any inconsistent federal, 
state or local requirements applicable to MGS including the Nevada SIP.
    Response: The purpose of this rule is to incorporate the consent 
decree into Nevada's Visibility FIP, not to evaluate and revise 
Nevada's SIP or to address other requirements which may apply to MGS 
now or in the future. Thus, EPA is not amending the State of Nevada's 
requirements currently applicable to MGS. As to other requirements, the 
State of Nevada must prepare a SIP submittal under the regional haze 
section of the CAA which may apply to a variety of sources including 
MGS.
    Comment 2: EPA's action is interpreted as constituting the final 
action and review that is contemplated under the reasonable attribution 
section of the CAA (Section 169A). Another party commented that EPA 
should confirm that the FIP provisions regarding MGS only resolve that 
facility's current, source-specific SO2 visibility impact on 
the Grand Canyon.
    Response: Since EPA is not making a finding of reasonable 
attribution, is not determining the best available retrofit technology, 
and is not formally reviewing the effect of SO2 emission 
limits on future impairment, this rule does not constitute a final 
determination under Section 169A of the CAA with regard to these 
issues. Section 169A also remains applicable in this case because it 
includes other air pollutants which may affect existing or future 
visibility impairment. EPA believes that incorporating the requirements 
of the consent decree into the Nevada Visibility FIP addresses the 
existing impact of SO2 emissions from MGS on visibility 
impairment at GCNP, allows for reasonable progress toward the national 
visibility goal, and ensures the consent decree is federally 
enforceable.
    Comment 3: Two parties commented that this rule is not adequate to 
relieve EPA of its responsibility to conduct a comprehensive review of 
the Nevada

[[Page 6131]]

Visibility FIP's long-term strategy to protect visibility in Class I 
areas, and to ensure reasonable progress is being made to meet the 
national visibility goal. EPA's claim that it need not develop a long-
term strategy for a source unless it was specifically identified in a 
certification of impairment by the FLM is without support. The long-
term strategy in the proposed FIP is deficient for failing to 
acknowledge and remedy Class I visibility impacts due to Nevada sources 
other than MGS. EPA also should acknowledge the impact of non-Nevada 
sources of visibility impairing pollution on the Grand Canyon and take 
immediate action to ensure these sources are controlled.
    Response: As EPA noted in the notice of proposed rulemaking, we are 
not conducting a comprehensive review of the Nevada Visibility FIP at 
this time. We are revising the long-term strategy only for the purpose 
of addressing the DOI's certification of existing visibility impairment 
at GCNP by MGS, and evaluating whether the terms of the Mohave consent 
decree will make reasonable progress toward the national visibility 
goal. This revision to the FIP is specific to requirements for MGS and 
does not constitute the three-year review of the components of the 
long-term strategy. Regarding a more comprehensive and periodic review 
of the long-term strategy, we believe that implementation of the 
requirements of the regional haze rule (40 CFR 51.308 and 309) will 
result in a regional strategy for western States, including Nevada, 
that will provide for additional progress toward the national 
visibility goal.
    Comment 4: Visibility impairment at GCNP cannot reasonably be 
attributed to emissions from MGS. The proposed rule seems to suggest 
that the results of project MOHAVE could support a finding of 
reasonable attribution without supplying any explanation of the basis 
for such a conclusion. EPA should confirm that it has made no 
determinations as to the extent to which improvements in visibility at 
GCNP would be either perceptible or significant due to the 
implementation of this rule. Another party commented to the contrary 
that EPA should make an attribution decision at this point.
    Response: EPA is not making a finding of reasonable attribution in 
this rule. If EPA were to make a determination regarding visibility 
impairment, Project MOHAVE would not be the only source of information. 
Any improvement in visibility at GCNP that may be directly attributable 
to SO2 reductions at MGS will depend on many variables. 
However, the results of Project MOHAVE indicate there will likely be a 
noticeable improvement in visibility at GCNP during ten percent of the 
summer period as a result of reductions in SO2 emissions 
from MGS.
    Comment 5: The rule should be corrected to acknowledge that Project 
MOHAVE examined nitrogen oxides (NOX) and particulate matter 
emissions, and both were determined not to cause noticeable impairment. 
Despite the fact that visibility impact from these pollutants are not 
significant, the revision to the Nevada Visibility FIP should include 
NOX and particulate matter control requirements since they 
were established as part of a complete package in the consent decree.
    Response: EPA agrees that Project MOHAVE examined particulate 
matter and NOX to a limited extent. While the Project MOHAVE 
results indicate particulate matter and NOX do not appear to 
contribute to noticeable visibility impairment at GCNP, EPA believes 
the collective effect of reducing these emissions along with 
SO2 will further contribute to improved visibility. The rule 
includes NOX and particulate matter control requirements 
since they are part of the consent decree.
    Comment 6: The final rule should include the consent decree's 
section on stipulated penalties or EPA should clarify that it will 
apply the consent decree's method to determine violations and assess 
penalties.
    Response: By not including the stipulated penalties of the consent 
decree, EPA is preserving its authority to take enforcement action 
under the CAA that is not limited to the terms of the decree. This is 
consistent with EPA's policy when we are a party to a consent decree. 
EPA does not allow a private party to limit its penalty authority under 
the CAA.
    Comment 7: EPA should clarify the preamble language as follows. A 
90-day or 365-day rolling average is really a 90-day or 365-day 
``boiler-operating-day rolling average.'' An expedited compliance 
schedule is required only if the owners sell 100 percent of their 
interest in MGS ``to the same entity or entities acting in concert.'' 
Compliance with the interim opacity limit was intended to be met ``over 
the entire averaging period'' between entry of the consent decree and 
the date by which compliance is demonstrated with the final opacity 
limit.
    Response: EPA's intent in the preamble is consistent with the 
interpretation reflected in the comments above.
    Comment 8: EPA should clarify the final rule language in three 
areas to ensure consistency with the consent decree as follows. The 
interim emission limits and the beginning of the opacity averaging 
period in Sec. 52.1488(d)(5) should be initiated as of the date of 
entry of the consent decree on December 15, 1999, rather than 
referencing paragraph (d). Remove the brackets around the phrase ``[the 
end of the first calendar quarter for which the emissions limitations 
in paragraph (d)(2) of this section first take effect]'' in 
Sec. 52.1488(d)(6)(ii) because the date will not be known at the time 
the final rule is promulgated. Remove the brackets around ``[the first 
full 365 boiler-operating-days after the .150 pound SO2 
limit in paragraph (d)(2) of this section takes effect]'' in 
Sec. 52.1488(d)(6)(ii)(C) to incorporate the language since the date is 
unknown.
    Response: EPA made these clarifications to the final rule in this 
document.

IV. Final Action

    EPA is finalizing the revisions to the long-term strategy of the 
Nevada Visibility FIP with minor corrections to the final rule noted in 
section III. As discussed in the proposal, the final rule adopts the 
emission limits, compliance deadlines and other requirements of the 
consent decree between the Grand Canyon Trust, Sierra Club, National 
Parks and Conservation Association and the owners of the Mohave 
Generating Station (Southern California Edison, Nevada Power, Salt 
River Project, Los Angeles Department of Water and Power) as approved 
by the U.S. District Court of Nevada on December 15, 1999. Under the 
terms of the consent decree, MGS owners will install pollution control 
equipment by 2006 to reduce SO2 emissions by 85 percent, 
particulate matter emissions, and NOX. MGS must also meet an 
SO2 emission limit of .150 lb/mmbtu and an opacity limit of 
20 percent. EPA is promulgating these requirements at 40 CFR 52.1488. 
For more detailed information on emission controls and limitations, 
emission control construction deadlines, emission limitation compliance 
deadlines, interim emission limits, reporting, and force majeure 
provisions, please refer to the proposed rule.

V. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

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B. Executive Order 13211 (Energy Effects)

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

C. Executive Order 13045

    Executive Order 13045, entitled 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 does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13132

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

E. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements 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 not-for-profit enterprises, 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 that is a 
small industrial entity as defined in the U.S. Small Business 
Administration (SBA) size standards; (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. For 
small entities engaged in fossil fuel electric generation, the SBA 
defines small entities as those generating 4 million or fewer megawatts 
of electric output per year.
    After considering the potential for economic impacts of today's 
final rule on small entities, I certify that this action will not have 
a significant economic impact on a substantial number of small 
entities. The rule revises the Nevada Visibility FIP to incorporate the 
requirements of a consent decree entered into by the owners of MGS and 
the Grand Canyon Trust, the Sierra Club, and the National Parks and 
Conservation Association. Thus, the rule does not create any new 
requirements or impose any additional control costs beyond those 
created by the consent decree. Moreover, MGS, which has a generating 
capacity of 13.4 million megawatts per year, is not a small business. 
Therefore, because the FIP does not create any new requirements and 
applies only to one entity which does not meet the definition of a 
small entity, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

G. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal

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governments in the aggregate, or to the private sector. This Federal 
action acts on pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's action because it 
does not require the public to perform activities conducive to the use 
of VCS.

I. Submission to Congress and the Comptroller General

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

J. 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 April 8, 2002. 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 section 307(b)(2).)

K. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to 
identical...reporting or record keeping requirements imposed on ten or 
more persons...'' 44 U.S.C. 3502(3)(A). Because this final rule only 
revises the Nevada Visibility FIP to incorporate the requirements of 
the consent decree entered into by the owners of one company, the 
Paperwork Reduction Act does not apply.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxide.

    Dated: February 1, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons set out in the preamble title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

    1. The authority for part 52 continues to read as follows:

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

Subpart DD--Nevada

    2. Section 52.1488 is amended by adding paragraph (d) to read as 
follows:


Sec. 52.1488  Visibility protection.

* * * * *
    (d) This paragraph (d) is applicable to the Mohave Generating 
Station located in the Las Vegas Intrastate Air Quality Control Region 
(Sec. 81.80 of this chapter).
    (1) Definitions.
    Administrator means the Administrator of EPA or her/his designee.
    Boiler-operating-day shall mean any calendar day in which coal is 
combusted in the boiler of a unit for more than 12 hours. If coal is 
combusted for more than 12 but less than 24 hours during a calendar 
day, the calculation of that day's sulfur dioxide (SO2) 
emissions for the unit shall be based solely upon the average of hourly 
Continuous Emission Monitor System data collected during hours in which 
coal was combusted in the unit, and shall not include any time in which 
coal was not combusted.
    Coal-fired shall mean the combustion of any coal in the boiler of 
any unit. If the Mohave Generating Station is converted to combust a 
fuel other than coal, such as natural gas, it shall not emit pollutants 
in greater amounts than that allowed by paragraph (d) of this section.
    Current owners shall mean the owners of the Mohave Generating 
Station on December 15, 1999.
    Owner or operator means the owner(s) or operator(s) of the Mohave 
Generating Station to which paragraph (d) of this section is 
applicable.
    Rolling average shall mean an average over the specified period of 
boiler-operating-days, such that, at the end of the first specified 
period, a new daily average is generated each successive boiler-
operating-day for each unit.
    (2) Emission controls and limitations. The owner or operator shall 
install the following emission control equipment, and shall achieve the 
following air pollution emission limitations for each coal-fired unit 
at the Mohave Generating Station, in accordance with the deadlines set 
forth in paragraphs (d) (3) and (4) of this section.
    (i) The owner or operator shall install and operate lime spray 
dryer technology on Unit 1 and Unit 2 at the Mohave Generating Station. 
The owner or operator shall design and construct such lime spray dryer 
technology to comply with the SO2 emission limitations, 
including the percentage reduction and pounds per million BTU in the 
following requirements:
    (A) SO2 emissions shall be reduced at least 85% on a 90-
boiler-operating-day rolling average basis. This reduction efficiency 
shall be calculated by comparing the total pounds of SO2 
measured at the outlet flue gas stream after the baghouse to the total 
pounds of SO2 measured at the inlet flue gas stream to the 
lime spray dryer during the previous 90 boiler-operating-days.
    (B) SO2 emissions shall not exceed .150 pounds per 
million BTU heat input on a 365-boiler-operating-day rolling average 
basis. This average shall be calculated by dividing the total pounds of 
SO2 measured at the outlet flue gas stream after the 
baghouse by the total heat input for the previous 365 boiler-operating-
days.
    (C) Compliance with the SO2 percentage reduction 
emission limitation above shall be determined using continuous 
SO2 monitor data taken from the inlet flue gas stream to the 
lime spray dryer compared to continuous SO2 monitor data 
taken from the outlet flue gas stream after the baghouse for each unit 
separately. Compliance with the pounds per million BTU limit shall be 
determined using continuous SO2 monitor data taken from the 
outlet flue gas stream

[[Page 6134]]

after each baghouse. The continuous SO2 monitoring system 
shall comply with all applicable law (e.g., 40 CFR Part 75, or such 
other provisions as may be enacted). The inlet SO2 monitor 
shall also comply with the quality assurance-quality control procedures 
in 40 CFR part 75, appendix B.
    (D) For purposes of calculating rolling averages, the first boiler-
operating-day of a rolling average period for a unit shall be the first 
boiler-operating-day that occurs on or after the specified compliance 
date for that unit. Once the unit has operated the necessary number of 
days to generate an initial 90 or 365 day average, consistent with the 
applicable limit, each additional day the unit operates a new 90 or 365 
day (``rolling'') average is generated. Thus, after the first 90 
boiler-operating-days from the compliance date, the owner or operator 
must be in compliance with the 85 percent sulfur removal limit based on 
a 90-boiler-operating-day rolling average each subsequent boiler-
operating-day. Likewise, after the first 365 boiler-operating-days from 
the compliance date, the owner or operator must be in compliance with 
the .150 sulfur limit based on a 365-boiler-operating-day rolling 
average each subsequent boiler-operating-day.
    (E) Nothing in this paragraph (d) shall prohibit the owner or 
operator from substituting equivalent or superior control technology, 
provided such technology meets applicable emission limitations and 
schedules, upon approval by the Administrator.
    (ii) The owner or operator shall install and operate fabric filter 
dust collectors (also known as FFDCs or baghouses), without a by-pass, 
on Unit 1 and Unit 2 at the Mohave Generating Station. The owner or 
operator shall design and construct such FFDC technology (together with 
or without the existing electrostatic precipitators) to comply with the 
following emission limitations:
    (A) The opacity of emissions shall be no more than 20.0 percent, as 
averaged over each separate 6-minute period within an hour, beginning 
each hour on the hour, measured at the stack.
    (B) In the event emissions from the Mohave Generating Station 
exceed the opacity limitation set forth in paragraph (d) of this 
section, the owner or operator shall not be considered in violation of 
this paragraph if they submit to the Administrator a written 
demonstration within 15 days of the event that shows the excess 
emissions were caused by a malfunction (a sudden and unavoidable 
breakdown of process or control equipment), and also shows in writing 
within 15 days of the event or immediately after correcting the 
malfunction if such correction takes longer than 15 days:
    (1) To the maximum extent practicable, the air pollution control 
equipment, process equipment, or processes were maintained and operated 
in a manner consistent with good practices for minimizing emissions;
    (2) Repairs were made in an expeditious fashion when the operator 
knew or should have known that applicable emission limitations would be 
exceeded or were being exceeded. Individuals working off-shift or 
overtime were utilized, to the maximum extent practicable, to ensure 
that such repairs were made as expeditiously as possible;
    (3) The amount and duration of excess emissions were minimized to 
the maximum extent practicable during periods of such emissions;
    (4) All reasonable steps were taken to minimize the impact of the 
excess emissions on ambient air quality; and
    (5) The excess emissions are not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance.
    (C) Notwithstanding the foregoing, the owner or operator shall be 
excused from meeting the opacity limitation during cold startup 
(defined as the startup of any unit and associated FFDC system after a 
period of greater than 48 hours of complete shutdown of that unit and 
associated FFDC system) if they demonstrate that the failure to meet 
such limit was due to the breakage of one or more bags caused by 
condensed moisture.
    (D) Compliance with the opacity emission limitation shall be 
determined using a continuous opacity monitor installed, calibrated, 
maintained and operated consistent with applicable law (e.g., 40 CFR 
Part 60, or such other provisions as may be enacted).
    (iii) The owner or operator shall install and operate low-
NOX burners and overfire air on Unit 1 and Unit 2 at the 
Mohave Generating Station.
    (3) Emission control construction deadlines. The owner or operator 
shall meet the following deadlines for design and construction of the 
emission control equipment required by paragraph (d)(2) of this 
section. These deadlines and the design and construction deadlines set 
forth in paragraph (d)(4)(iii) of this section are not applicable if 
the emission limitation compliance deadlines of paragraph (d)(4) of 
this section are nonetheless met; or coal-fired units at the Mohave 
Generating Station are not in operation after December 31, 2005; or 
coal-fired units at the Mohave Generating Station are not in operation 
after December 31, 2005 and thereafter recommence operation in 
accordance with the emission controls and limitations obligations of 
paragraph (d)(2) of this section.
    (i) Issue a binding contract to design the SO2, opacity 
and NOX control systems for Unit 1 and Unit 2 by March 1, 
2003.
    (ii) Issue a binding contract to procure the SO2, 
opacity and NOX control systems for Unit 1 and Unit 2 by 
September 1, 2003.
    (iii) Commence physical, on-site construction of SO2 and 
opacity equipment for Unit 1 and Unit 2 by April 1, 2004.
    (iv) Complete construction of SO2, opacity and 
NOX control equipment and complete tie in for first unit by 
July 1, 2005.
    (v) Complete construction of SO2, opacity and 
NOX control equipment and complete tie in for second unit by 
December 31, 2005.
    (4) Emission limitation compliance deadlines. (i) The owner's or 
operator's obligation to meet the SO2 and opacity emission 
limitations and NOX control obligations set forth in 
paragraph (d)(2) of this section shall commence on the dates listed 
below, unless subject to a force majeure event as provided for in 
paragraph (d)(7) of this section:
    (A) For one unit, January 1, 2006; and
    (B) For the other unit, April 1, 2006.
    (ii) The unit that is to meet the emission limitations by April 1, 
2006 may only be operated after December 31, 2005 if the control 
equipment set forth in paragraph (d)(2) of this section has been 
installed on that unit and the equipment is in operation. However, the 
control equipment may be taken out of service for one or more periods 
of time between December 31, 2005 and April 1, 2006 as necessary to 
assure its proper operation or compliance with the final emission 
limits.
    (iii) If the current owners' entire (i.e., 100%) ownership interest 
in the Mohave Generating Station is sold either contemporaneously, or 
separately to the same person or entity or group of persons or entities 
acting in concert, and the closing date or dates of such sale occurs on 
or before December 30, 2002, then the emission limitations set forth in 
paragraph (d)(2) of this section shall become effective for one unit 
three years from the date of the last closing, and for the other unit 
three years and three months from the date of the last closing. With 
respect to interim construction deadlines, the owner or operator shall 
issue a binding contract to design the SO2, opacity and 
NOX control systems within six months of the last closing, 
issue a binding contract to procure such systems within 12 months of 
such

[[Page 6135]]

closing, commence physical, on-site construction of SO2 and 
opacity control equipment within 19 months of such closing, and 
complete installation and tie-in of such control systems for the first 
unit within 36 months of the last closing and for the second unit 
within 39 months of the last closing.
    (5) Interim emission limits. (i) For the period of time between the 
date of the consent decree (December 15, 1999) and the date on which 
each unit must commence compliance with the final emission limitations 
set forth in paragraph (d)(2) of this section (``interim period''), the 
following SO2 and opacity emission limits shall apply:
    (i) SO2: SO2 emissions shall not exceed 1.0 
pounds per million BTU of heat input calculated on a 90-boiler-
operating-day rolling average basis for each unit;
    (ii) Opacity: The opacity of emissions shall be no more than 30 
percent, as averaged over each separate 6-minute period within an hour, 
beginning each hour on the hour, measured at the stack, with no more 
than 375 exceedances of 30 percent allowed per calendar quarter 
(including any pro rated portion thereof), regardless of reason. If the 
total number of excess opacity readings from the date of the consent 
decree (December 15, 1999) to the time the owner or operator 
demonstrates compliance with the final opacity limit in paragraph 
(d)(2) of this section, divided by the total number of quarters in the 
interim period (with a partial quarter included as a fraction), is 
equal to or less than 375, the owner or operator shall be in compliance 
with this interim limit.
    (6) Reporting. (i) Commencing on January 1, 2001, and continuing on 
a bi-annual basis through April 1, 2006, or such earlier time as the 
owner or operator demonstrates compliance with the final emission 
limits set forth in paragraph (d)(2) of this section, the owner or 
operator shall provide to the Administrator a report that describes all 
significant events in the preceding six month period that may or will 
impact the installation and operation of pollution control equipment 
described in this paragraph, including the status of a full or partial 
sale of the Mohave Generating Station based upon non-confidential 
information. The owner's or operator's bi-annual reports shall also set 
forth for the immediately preceding two quarters: all opacity readings 
in excess of 30 percent, and all SO2 90-boiler-operating-day 
rolling averages in BTUs for each unit for the preceding two quarters.
    (ii) Within 30 days after the end of the first calendar quarter for 
which the emission limitations in paragraph (d)(2) of this section 
first take effect, but in no event later than April 30, 2006, the owner 
or operator shall provide to the Administrator on a quarterly basis the 
following information:
    (A) The percent SO2 emission reduction achieved at each 
unit during each 90-boiler-operating-day rolling average for each 
boiler-operating-day in the prior quarter. This report shall also 
include a list of the days and hours excluded for any reason from the 
determination of the owner's or operator's compliance with the 
SO2 removal requirement.
    (B) All opacity readings in excess of 20.0 percent, and a statement 
of the cause of each excess opacity reading and any documentation with 
respect to any claimed malfunction or bag breakage.
    (C) Each unit's 365-boiler-operating-day rolling average for each 
boiler-operating-day in the prior quarter following the first full 365 
boiler-operating-days after the .150 pound SO2 limit in 
paragraph (d)(2) of this section takes effect.
    (7) Force majeure provisions. (i) For the purpose of this paragraph 
(d), a ``force majeure event'' is defined as any event arising from 
causes wholly beyond the control of the owner or operator or any entity 
controlled by the owner or operator (including, without limitation, the 
owner's or operator's contractors and subcontractors, and any entity in 
active participation or concert with the owner or operator with respect 
to the obligations to be undertaken by the owner or operator pursuant 
to paragraph (d)), that delays or prevents or can reasonably be 
anticipated to delay or prevent compliance with the deadlines in 
paragraphs (d)(3) and (4) of this section, despite the owner's or 
operator's best efforts to meet such deadlines. The requirement that 
the owner or operator exercise ``best efforts'' to meet the deadline 
includes using best efforts to avoid any force majeure event before it 
occurs, and to use best efforts to mitigate the effects of any force 
majeure event as it is occurring, and after it has occurred, such that 
any delay is minimized to the greatest extent possible.
    (ii) Without limitation, unanticipated or increased costs or 
changed financial circumstances shall not constitute a force majeure 
event. The absence of any administrative, regulatory, or legislative 
approval shall not constitute a force majeure event, unless the owner 
or operator demonstrates that, as appropriate to the approval: they 
made timely and complete applications for such approval(s) to meet the 
deadlines set forth in paragraph (d)(3) of this section or paragraph 
(d)(4) of this section; they complied with all requirements to obtain 
such approval(s); they diligently sought such approval; they diligently 
and timely responded to all requests for additional information; and 
without such approval, the owner or operator will be required to act in 
violation of law to meet one or more of the deadlines in paragraph 
(d)(3) of this section or paragraph (d)(4) of this section.
    (iii) If any event occurs which causes or may cause a delay by the 
owner or operator in meeting any deadline in paragraphs (d) (3) or (4) 
of this section and the owner or operator seeks to assert the event is 
a force majeure event, the owner or operator shall notify the 
Administrator in writing within 30 days of the time the owner or 
operator first knew that the event is likely to cause a delay (but in 
no event later than the deadline itself). The owner or operator shall 
be deemed to have notice of any circumstance of which their contractors 
or subcontractors had notice, provided that those contractors or 
subcontractors were retained by the owner or operator to implement, in 
whole or in part, the requirements of paragraph (d) of this section. 
Within 30 days of such notice, the owner or operator shall provide in 
writing to the Administrator a report containing: an explanation and 
description of the reasons for the delay; the anticipated length of the 
delay; a description of the activity(ies) that will be delayed; all 
actions taken and to be taken to prevent or minimize the delay; a 
timetable by which those measures will be implemented; and a schedule 
that fully describes when the owner or operator proposes to meet any 
deadlines in paragraph (d) of this section which have been or will be 
affected by the claimed force majeure event. The owner or operator 
shall include with any notice their rationale and all available 
documentation supporting their claim that the delay was or will be 
attributable to a force majeure event.
    (iv) If the Administrator agrees that the delay has been or will be 
caused by a force majeure event, the Administrator and the owner or 
operator shall stipulate to an extension of the deadline for the 
affected activity(ies) as is necessary to complete the activity(ies). 
The Administrator shall take into consideration, in establishing any 
new deadline(s), evidence presented by the owner or operator relating 
to weather, outage schedules and remobilization requirements.
    (v) If the Administrator does not agree in her sole discretion that 
the delay or anticipated delay has been or will be

[[Page 6136]]

caused by a force majeure event, she will notify the owner or operator 
in writing of this decision within 20 days after receiving the owner's 
or operator's report alleging a force majeure event. If the owner or 
operator nevertheless seeks to demonstrate a force majeure event, the 
matter shall be resolved by the Court.
    (vi) At all times, the owner or operator shall have the burden of 
proving that any delay was caused by a force majeure event (including 
proving that the owner or operator had given proper notice and had made 
``best efforts'' to avoid and/or mitigate such event), and of proving 
the duration and extent of any delay(s) attributable to such event.
    (vii) Failure by the owner or operator to fulfill in any way the 
notification and reporting requirements of this Section shall 
constitute a waiver of any claim of a force majeure event as to which 
proper notice and/or reporting was not provided.
    (viii) Any extension of one deadline based on a particular incident 
does not necessarily constitute an extension of any subsequent 
deadline(s) unless directed by the Administrator. No force majeure 
event caused by the absence of any administrative, regulatory, or 
legislative approval shall allow the Mohave Generating Station to 
operate after December 31, 2005, without installation and operation of 
the control equipment described in paragraph (d)(2) of this section.
    (ix) If the owner or operator fails to perform an activity by a 
deadline in paragraphs (d)(3) or (4) of this section due to a force 
majeure event, the owner or operator may only be excused from 
performing that activity or activities for that period of time excused 
by the force majeure event.
[FR Doc. 02-3100 Filed 2-7-02; 8:45 am]
BILLING CODE 6560-50-P