This PDF is the current document as it appeared on Public Inspection on 08/27/2013 at 08:45 am.
Environmental Protection Agency (EPA).
The Environmental Protection Agency (EPA) is taking final action to extend the compliance date for NOX emission limits, under the Best Available Retrofit Technology (BART) requirements of the Regional Haze Rule, for Units 1, 2, and 3 at the Reid Gardner Generating Station (RGGS) by 18 months from January 1, 2015, to June 30, 2016. EPA's BART determination was promulgated in a Federal Implementation Plan (FIP) on August 23, 2012. On March 26, 2013, EPA granted reconsideration of the compliance date and proposed to extend the compliance date for the NOX emission limits applicable to Units 1, 2, and 3 at RGGS.Start Printed Page 53034
This rule is effective on September 27, 2013.
EPA established a docket for this action at EPA-R09-OAR-2013-0148. Generally, documents in the docket are available electronically at www.regulations.gov or in hard copy at the EPA Region 9 office. Documents from EPA's final BART determination and FIP for RGGS, promulgated on August 23, 2012, are generally available electronically in a different docket: EPA-R09-OAR-2011-0130. Please note that while many of the documents in the docket are available electronically at www.regulations.gov, some information may not be specifically listed in the index to the docket or may be publicly available only in hard copy at the EPA Region 9 office (e.g., copyrighted material, large maps, multi-volume reports, or otherwise voluminous materials), and some may not be publicly available in electronic or hard copy form (e.g., confidential business information). To view the hard copy materials, please schedule an appointment during normal business hours with the contact person listed in the FOR FURTHER INFORMATION CONTACT section.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Anita Lee, U.S. EPA, Region 9, 75 Hawthorne Street (AIR-2), San Francisco, CA 94105. Anita Lee can also be reached at (415) 972-3958, or via electronic mail at firstname.lastname@example.org.End Further Info End Preamble Start Supplemental Information
Throughout this document, “we”, “us”, and “our” refer to the United States Environmental Protection Agency (EPA).
Table of Contents
I. Background and Purpose
II. EPA Responses to Public Comments
III. Summary of EPA Action
IV. Statutory and Executive Order Reviews
EPA provided a detailed description of the BART requirements of the Regional Haze Rule and our analysis of the Nevada Division of Environmental Protection's (NDEP) BART determination for RGGS elsewhere. See 77 FR 21896 (April 12, 2012). EPA took final action on the BART determination for NOX emissions from Unit 1, 2, and 3 at RGGS on August 23, 2012 (77 FR 50936). On October 19, 2012, Nevada Energy (NV Energy, also known as Nevada Power Company), filed a petition to the EPA Administrator for reconsideration of the BART compliance date. On March 26, 2013, EPA granted the petition for reconsideration and also proposed to extend the BART compliance date for NOX for the affected units by 18 months, from January 1, 2015 to June 30, 2016. The notice of proposed rulemaking published on March 26, 2013, provides additional detail regarding the history of EPA actions related to BART for RGGS, the petition for reconsideration, a summary of supplemental information submitted by NV Energy to demonstrate that the extended compliance date of June 30, 2016, is as expeditious as practicable, and EPA's demonstration that the extension does not interfere with attainment, reasonable further progress, or any other applicable requirement of the Clean Air Act (CAA). This information is not restated here. See 78 FR 18280 (March 26, 2013).
II. EPA Responses to Public Comments
EPA provided a 60-day public comment period for our proposed rulemaking that was scheduled to close on May 28, 2013. On April 4, 2013, EPA provided notice in the Federal Register of a public hearing and a short extension of the comment period to May 30, 2013 (78 FR 20290). The public hearing was held on April 29, 2013, in Moapa, Nevada. EPA received oral comments from 12 individuals during the public hearing. Prior to the close of the public comment period, EPA also received three written comment letters.
Oral comments made during the public hearing are summarized below and are followed by EPA's responses to those comments. In general, comments made during the public hearing expressed concerns related to the health impacts on the Moapa community from RGGS and expressed opposition to the proposed extension of the BART compliance date for NOX. Members of the Moapa Band of Paiute Indians (Moapa Band) and the Sierra Club, as well as legal counsel representing the Moapa Band and the Sierra Club, provided oral testimony during the public hearing. Subsequent to the public hearing, and prior to the close of the comment period, the legal counsel representing the Moapa Band, the Sierra Club, and the National Parks Conservation Association, submitted a written comment letter stating that the groups took no position on the proposed compliance date extension. EPA also received comment letters in support of the proposed extension of the compliance date, from NV Energy and NDEP. NDEP noted that the extended compliance date would still result in the installation and operation of new NOX controls more than 1 year earlier than the 5-year maximum period allowed for BART under the Clean Air Act and the Regional Haze Rule.
In its comment letter to EPA dated May 14, 2013, NV Energy also provided additional information regarding an amendment to Senate Bill 123 introduced to the Nevada Legislature in April, 2013 (known as “NVision”). NVision proposed to retire some of the coal-fired units owned by NV Energy on an accelerated schedule and to replace retired generation with energy from new natural gas-fired units and renewable sources. NVision would require early retirement of Units 1, 2, and 3 at RGGS by the end of 2014, prior to the original compliance date in our August 23, 2012 final rulemaking and the extended compliance date we proposed on March 26, 2013. Because NV Energy must also file its plan to the Nevada Public Utilities Commission for review and approval, NV Energy states that the earliest date it would receive a decision on the plan would be in the first quarter of 2014. Given the current uncertainty regarding approval of NVision, NV Energy stated in its letter that it will continue to move forward on an expeditious schedule to comply with BART emission limits for NOX at RGGS by June 30, 2016.
All written comments submitted to EPA express either no position on, or are in support of, our proposed action to extend the BART compliance date. Because our final action extends the compliance date as proposed, we are not providing any further responses to those written comments. Oral comments made during the public hearing express additional concerns related to RGGS and the proposed compliance date extension. We respond below to the comments received during the public hearing that are relevant to our proposed action.
Comment 1: In general, the commenters opposed extending the compliance date for meeting the NOX emission limits at RGGS. A number of Start Printed Page 53035commenters indicated that the plant has been in operation for many years and should no longer be allowed to operate without controls. Some commenters stated that an extension is not necessary in light of the plan to shut the plant down next year, and one added that maintaining the current compliance schedule will give NV Energy added incentive to go through with the shutdown.
Response 1: EPA disagrees with the comment that RGGS is operating without controls. RGGS currently operates with SO2 and particulate matter controls, as well as older low-NOX burners with overfire air. Units 1, 2, and 3 at RGGS are subject to BART based on their age, emissions of visibility-impairing pollutants, and their impact on visibility at Class I areas. The CAA and the Regional Haze Rule require BART controls to be installed as expeditiously as practicable, but in no event later than five years from the date of the final rulemaking. As discussed in greater detail in our notice of reconsideration and proposed rulemaking, our proposed extension of the compliance date by 18 months, from January 1, 2015 to June 30, 2016, is consistent with the CAA and the Regional Haze Rule. The extension is justified by an expeditious schedule for the installation of multiple control technologies that require detailed engineering, procurement, construction, installation, and testing of new controls, as well as regulatory approvals from the Nevada Public Utilities Commission and the Nevada Division of Environmental Protection, with an average time of 14 months per unit to meet new BART emission limits. RGGS is following its plan to install new controls to comply with BART emission limits as expeditiously as practicable and within a timeframe that is less than five years from the final BART rulemaking.
As stated previously, although NV Energy plans to retire Units 1, 2, and 3 at RGGS by the end of 2014, NV Energy must also file its plan to the Nevada Public Utilities Commission for review and approval. NV Energy states that the earliest date it would receive a decision on the plan would be in the first quarter of 2014. Given the current uncertainty regarding the approval of NVision, NV Energy stated in its letter that it continues to move forward on its expeditious schedule to comply with BART emission limits for NOX at RGGS by June 30, 2016. Therefore, EPA's action is still necessary despite NV Energy's plans to retire Units 1, 2 and 3 at RGGS. This final action requires that in the event Units 1, 2, and 3 continue operation and are not retired by the end of 2014, these units must comply with BART emission limits by June 30, 2016, a date which is as expeditious as practicable and within five years of the final rule.
Comment 2: Some commenters expressed skepticism about NV Energy's pledge to retire its coal-fired boilers at RGGS and the passage of pending state legislation, which would codify the proposed retirement schedule. These commenters encouraged the EPA to follow through with the existing compliance schedule in the event that NV Energy does not retire the plant voluntarily or at the behest of state legislation.
Response 2: EPA understands that the NVision plan has been approved by the Nevada Legislature and signed by Governor Brian Sandoval on June 11, 2013. NV Energy must also file its plan that includes early retirement of Units 1, 2, and 3 at RGGS to the Nevada Public Utilities Commission for review and approval.
As stated in Response 1, EPA is taking final action to extend the compliance date by 18 months based on our determination that the schedule for compliance that provides approximately 14 months per unit for the procurement, installation, and testing of new BART controls, is reasonable and as expeditious as practicable. For this reason, the extended compliance date of June 30, 2016 is consistent with the CAA and the Regional Haze Rule.
Comment 3: Several commenters stated that residents of southern Nevada and the Moapa Band of Paiute Indians suffer from a variety of health issues, including asthma attacks, lung disease, cancer, and heart disease, which they believe are attributable to emissions from RGGS. A few commenters recounted their personal experiences with deteriorating health or the health problems of loved ones. Two commenters argued that emissions produced by the RGGS are not restricted to the area around the plant, but impact neighboring cities and states as well.
Response 3: EPA understands that the health of the Moapa community is an important issue. Our final BART determination for RGGS is expected to significantly reduce emissions of NOX. Ozone and fine particles are formed in the atmosphere from reactions between NOX and other pollutants. Nitrogen dioxide, or NO2, is a component of NOX. Ozone, fine particles and NO2 have all been associated with various effects on human health and the environment. As discussed in our proposed rulemaking, EPA has promulgated standards, known as the national ambient air quality standards (NAAQS), for seven pollutants, including NO2, ozone and particulate matter with a diameter less than or equal to 2.5 micrometers (PM2.5). The primary NAAQS standards protect public health, including the health of “sensitive” populations, such as asthmatics, children, and the elderly, while the secondary NAAQS standards protect public welfare, including damage to animals, crops, vegetation, and buildings. Using a process that considers air quality data and other factors, EPA designates areas as “nonattainment” if those areas cause or contribute to violations of a NAAQS.
RGGS is located in Clark County, Nevada. Portions of Clark County (the Las Vegas Valley) have previously been designated nonattainment for PM10, carbon monoxide, and the 1997 8-hour ozone standard. RGGS is not located in the portion of Clark County that was designated nonattainment for PM10. Additionally, Clark County is now in attainment with the NAAQS for carbon monoxide and ozone. This means that the air quality in the area surrounding RGGS is meeting all the NAAQS set by EPA to protect human health.
Comment 4: Two commenters urged the EPA to consider the broader ramifications of BART controls, warning that more stringent control of air emissions would lead to an increased waste stream and more contaminants flowing into wastewater ponds and eventually into nearby landfills that burden the Moapa community.
Response 4: EPA understands that impacts from the landfills near the Moapa community are important issues. However, EPA's proposed rulemaking addressed only the compliance date by which the affected units at RGGS must meet emission limits required under the BART provisions of the CAA and Regional Haze Rule. Therefore, comments related to additional waste resulting from emission control technologies are not relevant to our current action. Discussions and Start Printed Page 53036considerations of non-air quality environmental impacts of potential controls were addressed in the proposed rule dated April 12, 2012 (77 FR 21896) and in the final rulemaking dated August 23, 2012 (77 FR 50942).
Comment 5: Two commenters discussed how emissions from the RGGS have impacted local vegetation and wildlife, making it difficult for the tribal community to exercise its cultural practices (e.g., herbal medicine).
Response 5: EPA understands that the health of local vegetation and wildlife are important issues to the Moapa community. In addition to ozone production, emissions of NOX also contribute to acid and nutrient deposition. These processes can affect the health of terrestrial and aquatic ecosystems through acidification or eutrophication. Our final BART determination for RGGS is expected to significantly reduce emissions of NOX. In addition, EPA sets secondary standards to protect public welfare, including damage to animals and vegetation. In general, the secondary standards for the criteria pollutants are less stringent than, or equal to, the primary standards. Because RGGS is not located in an area that is designated nonattainment for any NAAQS, air quality in the area surrounding RGGS is meeting the NAAQS set by EPA to protect human health and public welfare, including animals and vegetation.
III. Summary of EPA Action
EPA is taking final action to extend the date by which Units 1, 2, and 3 at RGGS must comply with NOX emission limits under the BART requirement of the Regional Haze Rule, by 18 months, from January 1, 2015 to June 30, 2016.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review 13563
This final action extends the compliance date for a single source to comply with the emission limits in an existing FIP. This type of action is exempt from review under Executive Orders (EO) 12866 (58 FR 51735, October 4, 1993) and EO 13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This final action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). Because the action merely extends a compliance date, it does not impose an information collection burden and the Paperwork Reduction Act does not apply.
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 proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this final action on small entities, I certify that this final action will not have a significant economic impact on a substantial number of small entities. The owner of the affected units at Reid Gardner Generating Station, Nevada Energy, also known as Nevada Power Company, is not a small entity and the final extended compliance date is supported by this entity. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985).
D. Unfunded Mandates Reform Act (UMRA)
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.
This final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. This action merely finalizes an 18-month extension of a compliance date. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This final rule 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 does not impose regulatory requirements on any government entity.
E. Executive Order 13132: Federalism
This final 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 action finalizes an 18-month extension of a compliance date. Thus, Executive Order 13132 does not apply to this action. EPA further notes that we received a comment letter from the Nevada Division of Environmental Protection in support of the extended compliance date for RGGS.
F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
Under 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 final rule may have tribal implications because the Reid Gardner Generating Station is located adjacent to reservation lands of the Moapa Band of Paiute Indians. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law.
During a telephone call on March 15, 2013, and in a letter of the same date, Regional Administrator Blumenfeld invited Chairman William Anderson of the Moapa Band of Paiute Indians to Start Printed Page 53037consult on our proposed action to extend the compliance date for Reid Gardner. On April 29, 2013, EPA held a public hearing in the Administration Building of the Moapa Band of Paiute Indians, in Moapa, Nevada, to accept comment on the proposed action. During the public hearing, EPA received comments from 12 individuals, including Chairman Anderson, several members of the Moapa Band, and the Sierra Club. A letter from the attorney jointly representing the Moapa Band of Paiute Indians, the Sierra Club, and the National Parks Conservation Association, expressed no position on our action to extend the compliance date for RGGS by 18 months. EPA did not receive a response regarding government-to-government consultation from Chairman Anderson.
Additionally, for prior actions related to regional haze and the Reid Gardner Generating Station, EPA consulted with Chairman Anderson and other tribal representatives early in the process to allow the Moapa Band of Piute Indians to have meaningful and timely input into its development. During the comment period for those prior actions, the Moapa Band raised concerns to EPA about the environmental impacts of this facility. For those previous rulemakings, EPA consulted the Moapa Band regarding these concerns and visited the reservation and the facility. Additional details of our consultation with the Moapa Band are provided in section IV.F of our final rulemaking published on August 23, 2012 (77 FR 50936).
G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. This final action addresses regional haze and visibility protection.
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
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.
This final rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any VCS.
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, while the final rule provides an 18-month extension in the compliance date, the facility will still achieve significant reductions in NOX emissions. The new compliance date for reducing emissions is less than five years from the effective date of the final BART determination, consistent with the BART provisions under the CAA.
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 final action under section 801 because this is a rule of particular applicability and only applies to one facility, the Reid Gardner Generating Station.
L. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2013. 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)).Start List of Subjects
List of Subjects in 40 CFR Part 52End List of Subjects Start Signature
Dated: August 16, 2013.
For the reasons stated in the preamble, Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:Start Part
PART 52—[AMENDED]End Part Start Amendment Part
1. The authority citation for Part 52 continues to read as follows:End Amendment Part
Subpart DD—NevadaStart Amendment Part
2. Section 52.1488 is amended by revising paragraph (f)(3) to read as follows:End Amendment Part
(f) * * *
(3) Compliance date. The owners and operators subject to this section shall comply with the emission limitations Start Printed Page 53038and other requirements of this section by June 30, 2016, and thereafter.
1. The transcript for the April 29, 2013 public hearing is available as document 0014 in the docket for this rulemaking (EPA-R09-OAR-2013-0148).Back to Citation
2. See comment letter from Dan Galpern, Law Offices of Charles M. Tebbutt, on behalf of the Sierra Club, the National Parks Conservation Association, and the Moapa Band of Paiute Indians, to EPA, dated May 28, 2013, available as document 0013 in the docket for this rulemaking.Back to Citation
3. See comment letter from Starla Lacy, NV Energy, to EPA, dated May 14, 2013, available as document 0010 in the docket for this rulemaking. See also comment letter from Rob Bamford, NDEP, to EPA, dated May 15, 2013, available as document number 0009 in the docket for this rulemaking.Back to Citation
4. The schedule for compliance with BART emission limits for NOX is outlined in greater detail in the letter from Starla Lacy, NV Energy to Anita Lee, EPA, dated January 31, 2013, available as document 0004 in the docket for this rulemaking.Back to Citation
7. The other pollutants are sulfur dioxide, carbon monoxide, lead, and PM10.Back to Citation
8. See: “Determination of Attainment for PM10 for the Las Vegas Valley Nonattainment Area, NV,” 75 FR 45485 (August 3, 2012); “Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Nevada; Redesignation of Las Vegas Valley to Attainment for the Carbon Monoxide Standard,” 75 FR 59090 (September 27, 2010); and “Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Nevada; Redesignation of Clark County to Attainment for the 1997 8-Hour Ozone Standard,” 78 FR 1149 (January 8, 2013).Back to Citation
[FR Doc. 2013-20749 Filed 8-27-13; 8:45 am]
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