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Federal Register / Vol. 86, No. 49 / Tuesday, March 16, 2021 / Proposed Rules of NOX further, pursuant to the requirements of the 2014 FIP.
C. Attainment Status The area around NGS is designated attainment, unclassifiable/attainment, or unclassifiable for all criteria pollutants under the Act.3
D. The EPAs Authority To Promulgate a FIP in Indian Country When the CAA was amended in 1990, Congress included a new provision, section 301d, granting the EPA
authority to treat tribes in the same manner as states where appropriate.4 In 1998, the EPA promulgated regulations known as the Tribal Authority Rule TAR.5 The EPAs promulgation of the TAR clarified, among other things, that state air quality regulations generally do not, under the CAA, apply to facilities located anywhere within the exterior boundaries of Indian reservations.6 Prior to the addition of section 301d and the promulgation of the TAR, some states had included emission limitations in their state implementation plans SIPs that they may have believed could apply under the CAA to private facilities operating on adjacent Indian reservations.
In the preambles to the proposed and final 1998 TAR, the EPA generally discussed the legal basis in the CAA
that authorizes the EPA to regulate sources of air pollution in Indian country.7 The EPA concluded that the CAA authorizes the EPA to protect air quality throughout Indian country.8 The TAR, therefore, provides that the EPA
shall promulgate without unreasonable delay such federal implementation plan provisions as are necessary or appropriate to protect air quality, consistent with the provisions of sections 301a and 301d4, if a tribe does not submit a tribal implementation plan meeting the 3 40

CFR 81.303.
U.S.C. 7601d.
5 40 CFR parts 9, 35, 49, 50, and 81. See also 63
FR 7254 February 12, 1998.
6 63 FR 7254 at 7258 noting that unless a state has explicitly demonstrated its authority and has been expressly approved by the EPA to implement CAA programs in Indian country, the EPA is the appropriate entity to implement CAA programs prior to tribal primacy, Arizona Public Service Company v. EPA., 211 F.3d 1280 D.C. Cir. 2000, cert. denied sub nom, Michigan v. EPA., 532 U.S.
970 2001 upholding the TAR; see also Alaska v.
Native Village of Venetie Tribal Government, 533
U.S. 520, 526 n.1 1998 primary jurisdiction over Indian country generally lies with federal government and tribes, not with states.
7 59 FR 43956 August 25, 1994; 63 FR 7253
February 12, 1998.
8 63 FR 7253 at 7262 February 12, 1998; 59 FR
43956 at 4396043961 August 25, 1994 citing, among other things, to CAA sections 101b1, 301a, and 301d.

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completeness criteria of 40 CFR part 51, Appendix V, or does not receive EPA
approval of a submitted tribal implementation plan. 9
E. Historical Overview of NGS FIP
Actions On December 2, 1980, EPA issued regulations addressing visibility impairment that is traceable or reasonably attributable to a single source or small group of sources.10
These regulations required a number of states to submit SIPs no later than September 2, 1981. Most states, including Arizona, failed to submit SIPs as called for by the regulations.
Accordingly, in 1987, the EPA issued visibility FIPs consisting of general plan requirements and long-term strategies for 29 states including Arizona.11
In 1989, based on a report submitted by the National Park Service, the EPA
proposed to find that a portion of the visibility impairment in Grand Canyon National Park was reasonably attributable to NGS.12 Under the 1991
FIP, NGS was required to phase-in compliance with the SO2 emissions limit by installing scrubbers in 1997, 1998, and 1999.13 In establishing the SO2 emissions limit for NGS in the final 1991 FIP, the EPA determined that the FIP would provide for greater reasonable progress toward the national visibility goal than implementation of best available retrofit technology BART.14
On September 8, 1999, the EPA
proposed a source-specific FIP for NGS.15 The 1999 proposed FIP stated:
Although the facility has been historically regulated by Arizona since its construction, the state lacks jurisdiction over the facility or its owners or operations for CAA
compliance or enforcement purposes.
The EPA intended for the proposed action in 1999 to federalize the 9 63 FR 7273, codified at 40 CFR 49.11a. In the preamble to the final TAR, the EPA explained that it was inappropriate to treat tribes in the same manner as states with respect to section 110c of the Act, which directs the EPA to promulgate a FIP
within 2 years after the EPA finds a state has failed to submit a complete state plan or within 2 years after the EPA disapproval of a state plan. Although the EPA is not required to promulgate a FIP within the 2-year period for tribes, the EPA promulgated 40 CFR 49.11a to clarify that the EPA will continue to be subject to the basic requirement to issue any necessary or appropriate FIP provisions for affected tribal areas within some reasonable time. See 63 FR 726465.
10 45 FR 80084 December 2, 1980, codified at 40
CFR 51.30051.307.
11 52 FR 45132 November 24, 1987.
12 56 FR 50172 October 3, 1991, codified at 40
CFR 52.145.
13 40 CFR 52.145d7.
14 56 FR 50172 October 3, 1991.
15 64 FR 48725 September 8, 1999.

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emission limitations that Arizona had erroneously included in its SIP.16 The EPA received comments on the proposed FIP but did not finalize the proposal.
The EPA published a new proposed rule to promulgate federally enforceable numerical emissions limitations for PM
and SO2 in 2006 and took action to finalize it in 2010.17 The 2010 FIP also established an opacity limit and a requirement for specific control measures to limit dust emissions. In the 2010 FIP, the EPA determined that the emissions limitations for PM and SO2
were more stringent than, or at least as stringent as, the emissions limitations that had historically applied at NGS
pursuant to an operating permit issued by Arizona. Therefore, the EPA
concluded that air quality in this area would be positively impacted by the 2010 FIP.18
On August 8, 2014, the EPA
promulgated a final rule that established emissions limitations for NOX emissions from NGS under BART provisions of the Regional Haze Rule.19 We finalized an alternative to BART based on agreedupon recommendations developed by a group of diverse stakeholders. The 2014
FIP limited emissions of NOX from NGS
by establishing a long-term facility-wide cap on total NOX emissions from 2009
to 2044 and required the implementation of one of several alternative operating scenarios to ensure that the 2009 to 2044 cap was met.
II. Basis for Proposed Action In 2017, due to the changing economics of the energy industry, the owners of NGS voted to permanently close the facility at the end of 2019.20
On November 27, 2019, consistent with the reporting requirements in the alternative to BART provisions of the NGS FIP, SRP notified the EPA that it would not implement any of the BART
alternatives in the FIP due to the permanent cessation of operations at NGS.21 In that letter, SRP noted that Unit 3 permanently ceased operations on September 19, 2019, and that Units 1 and 2 permanently ceased operations on November 18, 2019. This closure 16 64

FR 48725, 48727.
FR 10179 March 5, 2010 codified at 40 CFR
49.24a through i and redesignated to 40 CFR
49.5513a through i. See 76 FR 23879 April 29, 2011.
18 75 FR 10174 March 5, 2010.
19 79 FR 46514 August 8, 2014.
20 https www.powermag.com/utility-ownersvote-to-shut-down-coal-fired-2-2-gw-navajogenerating-station/.
21 Letter dated November 27, 2019, from Kenneth Joe Frazier, SRP, to Elizabeth Adams, EPA, regarding Navajo Generating StationNotification of BART Alternative.
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