

[Federal Register: September 12, 2006 (Volume 71, Number 176)]
[Proposed Rules]               
[Page 53631-53639]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12se06-25]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R09-OAR-2006-0184; FRL-8218-5]

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

DATES: Any comments on this proposal must arrive by November 6, 2006.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0184, by one of the following methods:
    (1) Federal eRulemaking portal: http://www.regulations.gov. Follow 

the on-line instructions.
    (2) E-mail: rosen.rebecca@epa.gov.
    (3) Mail or deliver: Rebecca Rosen (AIR-2), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, 

including any personal information provided, unless the comment 
includes Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Information that you 
consider CBI or otherwise protected should be clearly identified as 
such and should not be submitted through the http://www.regulations.gov or e-

mail. http://www.regulations.gov is an ``anonymous access'' system, and EPA 

will not know your identity or contact information unless you provide 
it in the body of your comment. If you send e-mail directly to EPA, 
your e-mail address will be automatically captured and included as part 
of the public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA Region 

IX, 75 Hawthorne Street, San Francisco, California. While all documents 
in the docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available in either location (e.g., CBI). 
To inspect the hard copy materials, please schedule an appointment 
during normal business hours with the contact listed in the FOR FURTHER 
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Rebecca Rosen, EPA Region IX, (415) 
947-4152, rosen.rebecca@epa.gov.

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

Table of Contents

I. Background
    A. Action
    B. Facility
    C. Attainment Status
    D. Historical Overview of FCPP FIP Actions
II. Basis for Proposed Action
    A. EPA's Authority to Promulgate a FIP in Indian Country
    B. Relation to Regional Haze Rule
III. Four Corners Power Plant Facility Description
IV. Summary of FIP provisions
    A. Proposed FIP Standards
    B. Other Requirements
    C. Compliance Schedule
V. Solicitation of Comments
VI. Administrative Requirements
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    F. Executive Order 12875: Enhancing the Intergovernmental 
Partnership
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. National Technology Transfer and Advancement Act

I. Background

A. Action

    In today's action, EPA proposes to promulgate a FIP to establish 
federally enforceable emissions limitations for sulfur dioxide 
(SO2), nitrogen oxides (NOX), and total 
particulate matter (PM) applicable to the FCPP. The FIP also proposes 
federally enforceable emissions limitations for opacity and control 
measures for dust.

B. Facility

    FCPP is a privately owned and operated coal-fired power plant 
located on the Navajo Indian Reservation near Farmington, New Mexico. 
Based on lease agreements signed in 1960, FCPP was constructed and has 
been operating on real property held in trust by the Federal government 
for the Navajo Nation. The facility consists of five coal-fired 
electric utility steam generating units with a total capacity in excess 
of 2000 megawatts (MW).

C. Attainment Status

    FCPP is located in the Four Corners Interstate air quality control 
region (AQCR), which is designated attainment for all criteria 
pollutants under the Clean Air Act (CAA or ``the Act''). See 40 CFR 
81.332. The proposed FCPP FIP establishes federally enforceable 
emissions limitations that are more stringent than, or at least as 
stringent as, the emissions limitations with which FCPP has 
historically complied. Therefore, EPA believes that air quality in this 
area will be positively impacted by this action.

D. Historical Overview of FCPP FIP Actions

    When the Clean Air Act was amended in 1990, Congress included a new 
provision, Section 301(d), granting EPA authority to treat Tribes in 
the same manner as States where appropriate. See 40 U.S.C. 7601(d). In 
1998, EPA promulgated regulations known as the Tribal Authority Rule 
(TAR). See 40 CFR parts 9, 35, 49, 50 & 81, 63 FR 7254 (February 12, 
1998). EPA's promulgation of the TAR clarified, among other things, 
that State air quality regulations generally do not, under the Clean 
Air Act, apply to facilities located anywhere within the

[[Page 53632]]

exterior boundaries of Indian reservations. See 63 FR at 7254, 7258 
(noting that unless a state has explicitly demonstrated its authority 
and been expressly approved by EPA to implement Clean Air Act programs 
in Indian country, EPA is the appropriate entity to implement Clean Air 
Act programs prior to tribal primacy), Arizona Public Service Company 
v. E.P.A., 211 F.3d 1280 (DC Cir. 2000), cert. denied sub nom, Michigan 
v. E.P.A., 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).
    Prior to the addition of Section 301(d) and promulgation of the 
TAR, some States had mistakenly included emissions limitations in their 
State Implementation Plans (SIPs) which they believed could apply to 
private facilities operating on adjacent Indian reservations. Such was 
the case for FCPP. The State Implementation Plan for New Mexico 
contained emissions limitations purported to apply to FCPP and with 
which FCPP was complying.
    EPA recognized that New Mexico's SIP emissions limits could not 
apply to FCPP, and on September 8, 1999, EPA proposed a source-specific 
FIP for the FCPP. See 64 FR 48731 (September 8, 1999). The 1999 
proposed FIP stated: ``Although the facility has been historically 
regulated by New Mexico since its construction, the state lacks 
jurisdiction over the facility or its owners or operations for CAA 
compliance or enforcement purposes.'' See 64 FR 48733. EPA intended for 
the 1999 FCPP FIP to ``federalize'' the emissions limitations that New 
Mexico had erroneously included in its State Implementation Plan. Id. 
at 64 FR 48736. EPA received comments on the proposed 1999 FIP but did 
not take action finalizing the proposal.
    Since EPA's 1999 FIP proposal, Arizona Public Service (APS), the 
operating agent for FCPP, has been in negotiation with the Navajo 
Nation, EPA Region IX, the Environmental Defense, New Mexico Citizens 
for Clean Air and Water, Western Resources Advocates, and the National 
Park Service. Recently, APS agreed to install emission control devices 
and take other measures to significantly reduce the amount of 
SO2 that will be emitted from its various boilers.
    Today's FIP proposal, therefore, establishes a significantly lower 
emission limit for SO2 than the one set forth in the 1999 
proposed FIP, and also promulgates federally enforceable emissions 
limits for PM and NOX. EPA is also proposing to establish an 
emissions limitation for opacity and a requirement for control measures 
to limit dust emissions. NOX emissions are also further 
limited by the Federal Acid Rain Program. FCPP is subject to a 
plantwide averaging plan limit of 0.62 pounds per million British 
thermal unit (lbs/MMbtu) for NOX.

II. Basis for Proposed Action

A. EPA's Authority To Promulgate a FIP in Indian Country

    As mentioned above, States generally lack authority to administer 
Clean Air Act programs in Indian country. See Alaska v. Native Village 
of Venetie Tribal Government, 533 U.S. 520, 526 n.1 (1998). In the 
preamble to the proposed and final 1998 TAR, EPA discusses generally 
the legal basis under the CAA by which EPA is authorized to regulate 
sources of air pollution in Indian country. See 59 FR 43956; 63 FR 
7253. EPA concluded that the CAA authorizes EPA to protect air quality 
throughout Indian country. See 63 FR 7262; 59 FR 43960-43961 (citing, 
among other things, to CAA sections 101(b)(1), 301(a), and 301(d)). In 
fact, in promulgating the TAR, EPA specifically provided that, pursuant 
to the discretionary authority explicitly granted to EPA under sections 
301(a) and 301(d)(4) of the Act, EPA ``[s]hall promulgate without 
unreasonable delay such Federal implementation plan provisions as are 
necessary or appropriate to protect air quality, consistent with the 
provisions of sections 304(a) [sic] and 301(d)(4), if a tribe does not 
submit a tribal implementation plan meeting the completeness criteria 
of 40 CFR part 51, Appendix V, or does not receive EPA approval of a 
submitted tribal implementation plan.'' See 63 FR at 7273 (codified at 
40 CFR 49.11(a)).\1\
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    \1\ In the preamble to the final TAR, EPA explained that it was 
inappropriate to treat Tribes in the same manner as States with 
respect to section 110(c) of the Act, which directs EPA to 
promulgate a FIP within two years after EPA finds a state has failed 
to submit a complete state plan or within two years after EPA 
disapproval of a state plan. Although EPA is not required to 
promulgate a FIP within the two-year period for Tribes, EPA 
promulgated 40 CFR 49.11(a) to clarify that 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 7264-7265.
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    Since there is not currently an approved Implementation Plan 
covering FCPP, a regulatory gap exists with regard to this facility. 
EPA is thus proposing to remedy this gap with a source-specific FIP. 
This FIP will establish federally enforceable emissions limits for 
SO2, NOX, PM, and opacity, and control measures 
for dust.
    Therefore, in this proposed FIP, EPA is exercising its 
discretionary authority under sections 301(a) and 301(d)(4) of the CAA 
and 40 CFR 49.11(a) to promulgate a FIP to remedy an existing 
regulatory gap under the Act with respect to FCPP to provide for 
maintenance of the national ambient air quality standards and to 
advance the goal of visibility protection. Given the magnitude of the 
emissions from the plant, EPA believes that the proposed FIP provisions 
are necessary or appropriate to protect air quality on the Reservation.

B. Relation to Regional Haze Rule

    The Clean Air Act defines sources potentially subject to Best 
Available Retrofit Technology (BART) as major stationary sources with 
the potential to emit greater than 250 tons or more of any pollutant, 
and which were placed into operation between 1962 and 1977. See Clean 
Air Act sections 169(A)(b)(2)(A) and (g)(7). EPA promulgated 
regulations addressing regional haze in 1999. 64 FR 35714 (July 1, 
1999), codified at 40 CFR part 51, subpart P. These regulations require 
all States to submit implementation plans that, among other measures, 
contain either emission limits representing BART for certain sources 
constructed between 1962 and 1977, or alternative measures that provide 
for greater reasonable progress than BART. 40 CFR 51.308(e).
    As explained in the regional haze rulemaking, Tribes are not 
required to submit regional haze implementation plans but they may seek 
approval to develop a regional haze program under 40 CFR part 49. 64 FR 
at 35759. EPA noted that pursuant to its authority under section 
301(d)(4) of the CAA, EPA will promulgate FIPs within reasonable 
timeframes to protect air quality in Indian country and take on the 
responsibility of meeting the requirements of the regional haze rule 
consistent with the provisions of 40 CFR 49.11(a). Id.
    EPA notes that there are only two major sources of SO2 
on the Navajo Reservation that are potentially subject to the BART 
requirements under the regional haze rule at 40 CFR 51.308. As 
explained in a companion notice published elsewhere in this Federal 
Register, Navajo Generating Station (NGS), is at this time already 
required to meet an SO2 limit of 0.1 lb/MMbtu, which 
requires a greater than 90% reduction in SO2 emissions 
through the use of wet scrubbers. The wet scrubbers for NGS are new 
scrubbers that came

[[Page 53633]]

on-line between 1997 and 1999 for the three units at the source.
    APS, in partnership with the Navajo Nation, several environmental 
groups and Federal agencies, conducted a test program to determine if 
the efficiency of the existing scrubbers at FCPP could be improved from 
the recent historical level of 72% SO2 removal to 85%. The 
test program, which was completed in spring of 2005, was successful and 
the plant was able to achieve a plant-wide annual SO2 
removal of 88%. The parties involved in the test program have agreed 
that this rule should propose to require 88% efficiency for the FCPP.
    EPA believes that the SO2 controls proposed today for 
FCPP are close to or the equivalent of a regional haze BART 
determination for SO2. For example, the BART Guidelines 
published by EPA in 2005 establish a presumption for the control of 
SO2 from uncontrolled large utility boilers of either 95% 
control or 0.15 lbs/MMBtu, but suggest that for electric generating 
units with pre-existing post-combustion SO2 controls of at 
least 50% removal efficiency, States consider cost effective scrubber 
upgrades designed to improve the system's overall SO2 
removal efficiency. 70 FR 39104, 39171 (July 6, 2005). The conclusion 
that the SO2 controls proposed today are close to or the 
equivalent of BART takes into consideration not only the BART 
Guidelines but also the early reductions for Regional Haze that this 
action will achieve through the modifications to the existing 
SO2 scrubbers. As explained in today's companion notice for 
NGS published elsewhere in this Federal Register, EPA previously 
determined that the SO2 emission limits in the 1991 FIP for 
NGS provide for a greater degree of reasonable progress toward the 
Regional Haze national goal than would BART. See 56 FR 50172. As a 
result, EPA does not consider it necessary or appropriate to develop a 
regional haze plan to address the BART requirements under 40 CFR 51.308 
for the Navajo Reservation for SO2.
    This proposal addresses only the necessity or appropriateness of 
developing a regional haze plan to address the BART requirements for 
SO2 for the Navajo Reservation. EPA will evaluate emissions 
of NOX, PM, and other pollutants that contribute to 
visibility impairment for their impact on regional haze and determine 
in a future action whether it is necessary and appropriate to develop a 
regional haze plan to address the BART requirements with respect to 
these pollutants.

III. Four Corners Power Plant Facility Description

    The FCPP is a 2040 MW net coal-fired power plant located on the 
Navajo Indian Reservation near Farmington, New Mexico. The FCPP 
consists of two 170 MW net electric generating units, one 220 MW net 
unit and two 740 MW net units, all of which became operational between 
1963 and 1970. The APS is the operating agent for FCPP which is jointly 
owned by the APS, the Southern California Edison Company, the Salt 
River Project Agricultural Improvement and Power District (SRP), the 
Public Service Company of New Mexico, the El Paso Electric Company and 
the Tucson Electric Power Company. Existing pollution control equipment 
at FCPP units 4 and 5 includes baghouses for particulate matter 
control, lime spray towers for SO2 control, and burners for 
limiting NOX formation. Units 1, 2 and 3 each have venturi 
scrubbers for particulate matter and SO2 control, and 
burners for limiting NOX formation. None of these unit's 
burner designs are the latest technology for NOX control.

IV. Summary of FIP Provisions

A. Proposed FIP Standards

    1. FCPP's SO2 emissions are not allowed to exceed 12 
percent of the SO2 produced in the burning of sulfur-bearing 
coal (averaged over a daily rolling yearly average on a plant-wide 
basis) and not to exceed 17,900 pounds of total SO2 per hour 
averaged over any consecutive three-hour period, on a plant-wide basis.
    2. Particulate emissions are not to exceed 0.050 lbs/MMbtu of heat 
input, as averaged from at least three sampling runs, each at a minimum 
of 60 minutes in duration, each collecting a minimum sample of 30 dry 
standard cubic feet.
    3. Opacity is limited to 20%, averaged over a six-minute period, 
for Units 4 and 5. The opacity limit for Units 4 and 5 allows for one 
six-minute period per hour of not more than 27 percent opacity, 
excluding water vapor. The opacity limit is not being applied to Units 
1, 2, and 3. The scrubbers currently in operation on Units 1, 2, and 3 
were designed for control of particulate matter, and were later 
redesigned to also control SO2. However, FCPP cannot 
currently meet a continuous opacity limit of 20 percent at Units 1, 2, 
and 3. EPA is proposing that FCPP design and enact a plan to monitor 
operating parameters such as pressure drop and scrubber liquid flow for 
the scrubbers. This will yield information about continuous proper 
operation of the scrubbers for particulate control. This information 
could then be used to determine appropriate parameters, which could be 
included in FCPP's Title V permit as indicators for good particulate 
matter control practice. EPA requests comment on this proposal, 
including whether an opacity standard of 20% or 40% could be applied to 
Units 1, 2, and 3. It should be noted that even if this regulation 
adopts an opacity limit, continuous opacity monitors would not be 
required since the stack is continuously wet from water vapor from the 
scrubbers.
    4. Opacity is limited to 20 percent averaged over a six minute 
period for dust from emissions associated with coal transfer and 
storage and other dust-generating activities. APS is required to submit 
a description of the dust control measures.
    5. FCPP's nitrogen oxide emissions are not allowed to exceed 0.85 
lbs/MMbtu of input for Units 1 and 2, and 0.65 lbs/MMbtu of input for 
Units 3, 4, and 5, averaged over any successive 30 boiler operating day 
period; nor shall they exceed 335,000 lb per 24-hour period on a plant-
wide basis. When any one unit is not operating, the limits are reduced 
by 1542 pounds per hour for units 1, 2, and 3, and by 4667 pounds per 
hour for units 4 and 5.

B. Other Requirements

    1. All periods of excess emissions will be treated as violations of 
the emission limitation. This rule does, however, provide an 
affirmative defense to enforcement actions for penalties brought for 
excess emissions that arise during certain malfunction episodes. As 
explained in EPA's excess emissions policy,\2\ affirmative defenses 
must be restricted to malfunctions that are sudden, unavoidable, and 
unpredictable. In addition, all possible steps must have been taken to 
minimize excess emissions. The rule accordingly requires an owner or 
operator to meet several conditions to qualify for an affirmative 
defense. An affirmative defense is not available if, during the period 
of excess emissions, there was an exceedance of the relevant ambient 
air quality standard that could be attributed to the emitting source.
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    \2\ September 20, 1999, ``State Implementation Plans: Policy 
Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown'' (the Excess Emissions Policy).
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    2. APS will develop a plan to monitor, record and report operating 
parameters indicative of good operation of the scrubbers for control of 
particulate matter on Units 1, 2, and 3.

[[Page 53634]]

C. Compliance Schedule

    The EPA proposes that the requirements contained in this proposal 
become effective upon promulgation of these regulations, except where 
specified otherwise.

V. Solicitation of Comments

    The EPA solicits comments on all aspects of today's proposal to 
promulgate a FIP to regulate air emissions from FCPP. Interested 
parties should submit comments to the address listed in the front of 
this proposed rule. Public comments postmarked by November 6, 2006 will 
be considered in the final action taken by EPA.

VI. Administrative Requirements

A. Executive Order 12866

    Under Executive Order (E.O.) 12866, 58 FR 51735 (October 4, 1993), 
all ``regulatory actions'' that are ``significant'' are subject to 
Office of Management and Budget (OMB) review and the requirements of 
the Executive Order. A ``regulatory action'' is defined as ``any 
substantive action by an agency (normally published in the Federal 
Register) that promulgates or is expected to result in the promulgation 
of a final rule or regulation, including * * * notices of proposed 
rulemaking.'' A ``regulation or rule'' is defined as ``an agency 
statement of general applicability and future effect, * * *.''
    The proposed FIP is not subject to OMB review under E.O. 12866 
because it applies to only a single, specifically named facility and is 
therefore not a rule of general applicability. Thus, it is not a 
``regulatory action'' under E.O. 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. See 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify 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 government entities with jurisdiction over populations 
of less than 50,000. The Federal implementation plan for the Four 
Corners Power Plant proposed today does not impose any new requirements 
on small entities. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 
F.2d 327 (DC Cir. 1985) (agency's certification need only consider the 
rule's impact on entities subject to the requirements of the rule). 
Therefore, pursuant to 5 U.S.C. 605(b), EPA certifies that today's 
action does not have a significant impact on a substantial number of 
small entities within the meaning of those terms for RFA purposes.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed rules and for final rules for which EPA 
published a notice of proposed rulemaking, if those rules contain 
``federal mandates'' that may result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year. If section 202 
requires a written statement, section 205 of UMRA generally requires 
EPA to identify and consider a reasonable number of regulatory 
alternatives. Under section 205, EPA must adopt the least costly, most 
cost-effective, or least burdensome alternative that achieves the 
objectives of the rule, unless the Regional Administrator publishes 
with the final rule an explanation why EPA did not adopt that 
alternative. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Section 204 of UMRA requires EPA to 
develop a process to allow elected officers of state, local, and tribal 
governments (or their designated, authorized employees), to provide 
meaningful and timely input in the development of EPA regulatory 
proposals containing significant Federal intergovernmental mandates.
    EPA has determined that the proposed FIP contains no Federal 
mandates on state, local or tribal governments, because it will not 
impose any additional enforceable duties on any of these entities. EPA 
further has determined that the proposed FIP is not likely to result in 
the expenditure of $100 million or more by the private sector in any 
one year. Although the proposed FIP imposes enforceable duties on an 
entity in the private sector, the costs are expected to be minimal. 
Consequently, sections 202, 204, and 205 of UMRA do not apply to the 
proposed FIP.
    Before EPA establishes any regulatory requirements that might 
significantly or uniquely affect small governments, it must have 
developed under section 203 of UMRA a small government agency plan. The 
plan must provide for notifying potentially affected small governments, 
enabling officials of affected small governments to have meaningful and 
timely input in the development of EPA regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    EPA has determined that the proposed FIP will not significantly or 
uniquely affect small governments, because it imposes no requirements 
on small governments. Therefore, the requirements of section 203 do not 
apply to the proposed FIP. Nonetheless, EPA worked closely with 
representatives of the Tribe in the development of today's proposed 
action.

D. 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 recordkeeping requirements imposed on ten or 
more persons * * *.'' 44 U.S.C. 3502(3)(A). Because the proposed FIP 
only applies to one company, the Paperwork Reduction Act does not 
apply.

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

    The FCPP FIP is not subject to Executive Order 13045 because it 
implements previously promulgated health or safety-based Federal 
standards. Executive Order 13045 applies to any rule that: (1) Is 
determined to be ``economically significant'' as that term is defined 
in E.O. 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. EPA interprets E.O. 13045 as applying only to 
those regulatory actions that are based on health or safety risks, such 
that the analysis required under section 5-501 of the Order has the 
potential to influence the regulation.

F. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a

[[Page 53635]]

mandate upon a state, local or tribal government, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by those governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 12875 
requires EPA to provide to the Office of Management and Budget a 
description of the extent of EPA's prior consultation with 
representatives of affected State, local and tribal governments, the 
nature of their concerns, any written communications from the 
governments, and EPA's position supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of state, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    As stated above, the proposed FIP will not create a mandate on 
state, local or tribal governments because it will not impose any 
additional enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of Executive Order 12875 do not apply to 
this rule. Nonetheless, EPA worked closely with representatives of the 
Tribe during the development of today's proposed action.

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

    Under Executive Order 13175, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13175 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13175 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    The proposed FIP does not impose substantial direct compliance 
costs on the communities of Indian tribal governments. The proposed FIP 
imposes obligations only on the owner or operator of FCPP. Accordingly, 
the requirements of section 3(b) of Executive Order 13175 do not apply 
to this rule.

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

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 30, 2006.
Laura Yoshii,
Acting Regional Administrator, Region IX.
    Title 40, chapter I of the Code of Federal Regulations is proposed 
to be amended as follows:

PART 49--[AMENDED]

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

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

    2. Part 49 is proposed to be amended by adding Sec.  49.21 to read 
as follows:


Sec.  49.21  Federal Implementation Plan Provisions for Four Corners 
Power Plant, Navajo Nation.

    (a) Applicability. The provisions of this section shall apply to 
each owner or operator of the coal burning equipment designated as 
Units 1, 2, 3, 4, and 5 at the Four Corners Power Plant (``the Plant'') 
on the Navajo Nation located in the Four Corners Interstate Air Quality 
Control Region (see 40 CFR 81.121).
    (b) Compliance Dates. Compliance with the requirements of this 
section is required upon the effective date of this promulgation unless 
otherwise indicated by compliance dates contained in specific 
provisions.
    (c) Definitions. For the purposes of this section:
    (1) Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding.

[[Page 53636]]

    (2) Air pollution control equipment includes baghouses, particulate 
or gaseous scrubbers, and any other apparatus utilized to control 
emissions of regulated air contaminants which would be emitted to the 
atmosphere.
    (3) Daily average means the arithmetic average of the hourly values 
measured in a 24-hour period.
    (4) Excess emissions means the emissions of air contaminants in 
excess of an applicable emissions limitation or requirement.
    (5) Heat input means heat derived from combustion of fuel in a Unit 
and does not include the heat input from preheated combustion air, 
recirculated flue gases, or exhaust gases from other sources. Heat 
input shall be in accordance with 50 CFR part 75.
    (6) Malfunction means any sudden and unavoidable failure of air 
pollution control equipment or process equipment or of a process to 
operate in a normal or usual manner. Failures that are caused entirely 
or in part by poor maintenance, careless operation, or any other 
preventable upset condition or preventable equipment breakdown shall 
not be considered malfunctions. This rule provides an affirmative 
defense to actions for penalties brought for excess emissions that 
arise during certain malfunction episodes. An affirmative defense is 
not available if during the period of excess emissions, there was an 
exceedance of the relevant ambient air quality standard that could be 
attributed to the emitting source.
    (7) Owner or Operator means any person who owns, leases, operates, 
controls, or supervises the Plant or any of the coal burning equipment 
designated as Units 1, 2, 3, 4, or 5 at the Plant.
    (8) Oxides of nitrogen (NOX) means the sum of nitric 
oxide (NO) and nitrogen dioxide (NO2) in the flue gas, 
expressed as nitrogen dioxide.
    (9) Plant-wide basis means total stack emissions of any particular 
pollutant from all coal burning equipment at the Plant.
    (10) Regional Administrator means the Regional Administrator of the 
Environmental Protection Agency (EPA) Region 9 or his/her authorized 
representative.
    (11) Shutdown means the cessation of operation of any air pollution 
control equipment, process equipment, or process for any purpose. 
Specifically, for Units 1, 2, or 3, shutdown begins when the unit drops 
below 40 MW net load with the intent to remove the unit from service. 
For Units 4 or 5, shutdown begins when the unit drops below 300 MW net 
load with the intent to remove the unit from service.
    (12) Startup means the setting into operation of any air pollution 
control equipment, process equipment, or process for any purpose. 
Specifically, for Units 1, 2, or 3, startup ends when the unit reaches 
40 MW net load. For Units 4 or 5, startup ends when the unit reaches 
400 MW net load.
    (13) 24-hour period means the period of time between 12:01 a.m. and 
12 midnight.
    (d) Emissions Standards and Control Measures.
    (1) Sulfur Dioxide. No owner or operator shall discharge or cause 
the discharge of sulfur dioxide (SO2) into the atmosphere in 
excess of
    (i) 12.0% of that which is produced by the Plant's coal burning 
equipment, determined each day on a yearly plant-wide basis; and
    (ii) 17,900 pounds of total SO2 emissions per hour 
averaged over any consecutive three (3) hour period, determined on a 
plant-wide basis.
    (2) Particulate Matter. No owner or operator shall discharge or 
cause the discharge of particulate matter from any coal burning 
equipment into the atmosphere in excess of 0.050 pounds per million 
British thermal unit (lb/MMBtu) of heat input (higher heating value), 
as averaged from at least three sampling runs, each at minimum 60 
minutes in duration, each collecting a minimum sample of 30 dry 
standard cubic feet.
    (3) Dust. Each owner or operator shall operate and maintain the 
existing dust suppression methods for controlling dust from the coal 
handling and storage facilities. Within ninety (90) days after 
promulgation of this section, the owner or operator shall submit to the 
Regional Administrator a description of the dust suppression methods 
for controlling dust from the coal handling and storage facilities, fly 
ash handling and storage, and road sweeping activities. Each owner or 
operator shall not emit dust with an opacity greater than 20% from any 
crusher, grinding mill, screening operation, belt conveyor, or truck 
loading or unloading operation.
    (4) Opacity. No owner or operator shall discharge or cause the 
discharge of emissions from the stacks of Units 4 and 5 into the 
atmosphere exhibiting greater than 20% opacity, excluding water vapor, 
averaged over any six (6) minute period, except for one six (6) minute 
period per hour of not more than 27% opacity, excluding water vapor.
    (5) Oxides of nitrogen. No owner or operator shall discharge or 
cause the discharge of NOX into the atmosphere
    (i) From either Unit 1 or 2 in excess of 0.85 lb/MMBtu of heat 
input per unit, and from either Units 3, 4, or 5 in excess of 0.65 lb/
MMBtu of heat input per unit averaged over any successive thirty (30) 
boiler operating day period;
    (ii) In excess of 335,000 lb per 24-hour period when coal burning 
equipment is operating, on a plant-wide basis; for each hour when coal 
burning equipment is not operating, this limitation shall be reduced. 
If the unit which is not operating is Unit 1, 2, or 3, the limitation 
shall be reduced by 1,542 lb per hour for each unit which is not 
operating. If the unit which is not operating is Unit 4 or 5, the 
limitation shall be reduced by 4,667 lb per hour for each unit which is 
not operating.
    (e) Testing and Monitoring. Upon completion of the installation of 
continuous emissions monitoring systems (CEMS) software as required in 
this section, compliance with the emissions limits set for 
SO2 and NOX shall be determined by using data 
from a CEMS unless otherwise specified in paragraphs (e)(2) and (e)(4) 
of this section. Compliance with the emissions limit set for 
particulate matter shall be tested annually, or at such other time as 
requested by the Regional Administrator, based on data from testing 
conducted in accordance with 40 CFR part 60, Appendix A, Methods 1 
through 5, or any other method receiving prior approval from the 
Regional Administrator. Compliance with the emissions limits set for 
opacity shall be determined by using data from a Continuous Opacity 
Monitoring System (COMS) except during saturated stack conditions 
(condensed water vapor). If the baghouse is operating within its normal 
operating parameters, the baghouse is not fully closed, and a high 
opacity reading occurs, it will be presumed that the occurrence was 
caused by saturated stack conditions and shall not be considered a 
violation.
    (1) The owner or operator shall maintain and operate CEMS for 
SO2, NO or NOX, a diluent and, for Units 4 and 5 
only, COMS, in accordance with 40 CFR 60.8 and 60.13, and Appendix B of 
40 CFR Part 60. Within six (6) months of promulgation of this section, 
the owner or operator shall install CEMS and COMS software which 
complies with the requirements of this section. The owner or operator 
of the Plant may petition the Regional Administrator for extension of 
the six (6) month period for good cause shown. Completion of 40 CFR 
part 75 monitor certification requirements shall be deemed to satisfy 
the requirements under 40 CFR 60.8 and 60.13 and Appendix B of Part 60. 
The owner or operator shall comply with the quality assurance 
procedures for CEMS found in 40 CFR part 75, and all reports required 
there under shall be submitted

[[Page 53637]]

to the Regional Administrator. The owner or operator shall provide the 
Regional Administrator notice in accordance with 40 CFR 75.61.
    (2) Sulfur Dioxide. For the purpose of determining compliance with 
this section, the sulfur dioxide inlet concentration (in lb/MMBtu) 
shall be calculated using the daily average percent sulfur and Btu 
content of the coal combusted. The inlet sulfur concentration and Btu 
content shall be determined in accordance with American Society for 
Testing and Materials (ASTM) methods or any other method receiving 
prior approval from the Regional Administrator. A daily fuel sample 
shall be collected using the coal sampling tower conforming to the ASTM 
specifications. The analyses shall be done on the daily sample using 
ASTM methods or any other method receiving prior approval from the 
Regional Administrator.
    (i) The inlet sulfur dioxide concentration shall be calculated 
using the following formula:

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

Where:

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

    (ii) The total pounds of SO2 generated by burning the 
coal shall be calculated by multiplying the SO2 inlet 
concentration by the daily total heat input determined by the 40 CFR 
part 75 acid rain monitoring. This will determine the pounds of 
SO2 produced per day. The SO2 emitted from the 
stacks shall be determined by adding the daily SO2 emissions 
from each stack as determined by the 40 CFR part 75 acid rain monitors.


Compliance with the emission limit shall be determined for each day by 
adding that day's SO2 emissions and that day's 
SO2 produced to the previous 364 days and then dividing the 
365 days of emissions by the 365 days of SO2 produced. 
Compliance is demonstrated if this fraction, converted to a percent, is 
equal to or less than 12.0%. The data from the 40 CFR part 75 monitors 
shall not be bias adjusted. Missing hours of data shall be calculated 
by averaging the last prior valid hourly data with the next valid hour 
after the data gap.
    (3) Particulate Matter. Particulate matter emissions shall be 
determined by averaging the results of three test runs. Each test run 
shall be at least sixty (60) minutes in duration and shall collect a 
minimum volume of thirty (30) dry standard cubic feet. Particulate 
matter testing shall be conducted annually and at least six (6) months 
apart, with the equipment within 90% of maximum operation in accordance 
with 40 CFR 60.8 and Appendix A to 40 CFR part 60. The owner or 
operator shall submit written notice of the date of testing no later 
than 21 days prior to testing. Testing may be performed on a date other 
than that already provided in a notice as long as notice of the new 
date is provided either in writing or by telephone or other means 
acceptable to the Regional Administrator, and the notice is provided as 
soon as practicable after the new testing date is known, but no later 
than 7 days (or a shorter period as approved by the Regional 
Administrator) in advance of the new date of testing.
    (4) Oxides of nitrogen. The total daily plant-wide oxides of 
nitrogen emissions in pounds of NO2 per day shall be 
calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TP12SE06.021

Where:

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

    (5) Continuous emissions monitoring shall apply during all periods 
of operation of the coal burning equipment, including periods of 
startup, shutdown, and malfunction, except for CEMS breakdowns, 
repairs, calibration checks, and zero and span adjustments. Continuous 
monitoring systems for measuring SO2, NOX, and 
diluent gas shall complete a minimum of one cycle of operation 
(sampling, analyzing, and data recording) for each successive 15-minute 
period. The one-hour averages shall be calculated using these data 
points. At least two data points must be used to calculate the one-hour 
averages. When emission data are not obtained because of continuous 
monitoring system breakdowns, repairs, calibration checks, or zero and 
span adjustments, emission data must be obtained by using other 
monitoring systems approved by the EPA to provide emission data for a 
minimum of 18 hours in at least 22 out of 30 successive boiler 
operating days. NOX emissions rates and quantities shall be 
reported as NO2 concentrations. For reporting purposes, when 
CEMS data is not available because of malfunctions or other reasons, 
the unavailable data will be replaced with a calculated value based on 
the average of the last valid data point and the next valid data point 
for purposes of calculating total plant-wide emissions.
    (6) The owner or operator shall maintain two sets of opacity 
filters for each type of COMS, one set to be used as calibration 
standards and one set to be used as audit standards. At least one set 
of filters shall be on site at all times.
    (7) Nothing herein shall limit EPA's ability to ask for a test at 
any time under Section 114 of the Clean Air Act, 42 U.S.C. 7414, and 
enforce against any violation.
    (8) In order to provide reasonable assurance that the scrubbers for 
control of particulate matter from Units 1, 2, and 3 are being 
maintained and operated in a manner consistent with good air pollution 
control practice for minimizing emissions, the owner or operator shall 
comply with the following provisions:
    (i) The owner or operator shall develop a plan to monitor, record, 
and report parameter(s) indicative of the proper operation of the 
scrubbers to provide a reasonable assurance of compliance with the 
particulate matter limits in paragraph (d)(2) of this section. The 
owner or operator shall submit this plan to the Regional Administrator 
no later than sixty (60) days after the effective date of this FIP. The 
owner or operator shall implement this plan within 30 days of approval 
by the Regional Administrator and shall commence reporting the data 
generated pursuant to the monitoring plan in accordance with the 
schedule in paragraph (e)(8)(v) of this section. If requested by the 
Regional Administrator, this plan shall be revised and submitted to the 
Regional Administrator for approval within sixty (60) days of the 
request. The revised plan shall be implemented within sixty (60) days 
of the Regional Administrator's approval.
    (ii) In the event that the owner or operator is unable to develop 
the plan required in paragraph (e)(8)(i) of this section due to 
technical difficulties, fails to submit the plan within sixty (60) days 
of the effective date of this FIP, or the Regional Administrator 
disapproves the plan, the owner or operator shall install and operate 
devices to measure the pressure drop across each scrubber module and 
the total flow of scrubbing liquid to the venturi section of each 
scrubber module. The data from these instruments shall be monitored and 
recorded electronically. A minimum of

[[Page 53638]]

one reading every 15 minutes shall be used to calculate an hourly 
average which shall be recorded and stored for at least a five-year 
period. The owner or operator shall report in an electronic format 
either all hourly data, or one-hour averages deviating by more than 30% 
from the levels measured during the last particulate matter stack test 
that demonstrated compliance with the limit in this section. The owner 
or operator shall implement this requirement no later than one hundred 
twenty (120) days after the effective date of this FIP if it failed to 
submit the plan within sixty (60) days after the effective date of this 
FIP; or no later than 60 days after the Regional Administrator's 
disapproval of the plan.
    (iii) The monitoring required under paragraphs (e)(8)(i) and 
(e)(8)(ii) of this section shall apply to each Unit at all times that 
the Unit is operating, except for monitoring malfunctions, associated 
repairs, and required quality assurance or control activities 
(including, as applicable, calibration checks and required zero and 
span adjustments). A monitoring malfunction is any sudden, infrequent, 
not reasonably preventable failure of the monitoring to provide valid 
data. Monitoring failures that are caused in part by poor maintenance 
or careless operation are not malfunctions.
    (iv) The owner or operator may petition the Regional Administrator 
for an extension of the sixty (60) day deadline. Such extension shall 
be granted only if the owner or operator demonstrates to the 
satisfaction of the Regional Administrator that:
    (A) The delay is due to technical infeasibility beyond the control 
of the owner or operator; and
    (B) The requested extension, if granted, will allow the owner or 
operator to successfully complete the plan.
    (v) The owner or operator shall submit to the Regional 
Administrator reports of the monitoring data required by this section 
quarterly. The reports shall be postmarked within 30 days of the end of 
each calendar quarter.
    (vi) The owner or operator shall develop and document a quality 
assurance program for the monitoring and recording instrumentation. 
This program shall be updated or improved as requested by the Regional 
Administrator.
    (vii) In the event that a program for parameter monitoring on Units 
1, 2, and 3 is approved pursuant to the Compliance Assurance Monitoring 
rule, 40 CFR part 64, such program will supersede the provisions 
contained in paragraph (e)(8) of this section.
    (f) Reporting and Recordkeeping Requirements. Unless otherwise 
stated all requests, reports, submittals, notifications, and other 
communications to the Regional Administrator required by this section 
shall be submitted, unless instructed otherwise, to the Director, 
Navajo Environmental Protection Agency, P.O. Box 339, Window Rock, 
Arizona 86515, (928) 871-7692, (928) 871-7996 (facsimile), and to the 
Director, Air Division, U.S. Environmental Protection Agency, Region 
IX, to the attention of Mail Code: AIR-5, at 75 Hawthorne Street, San 
Francisco, California 94105, (415) 972-3990, (415) 947-3579 
(facsimile). For each unit subject to the emissions limitation in this 
section and upon completion of the installation of CEMS and COMS as 
required in this section, the owner or operator shall comply with the 
following requirements:
    (1) For each emissions limit in this section, comply with the 
notification and recordkeeping requirements for CEMS compliance 
monitoring in 40 CFR 60.7(c) and (d).
    (2) For each day, provide the 365-day percent SO2 
emitted, the total SO2 emitted that day, and the total 
SO2 produced that day. List the number of hours of 
substitute data used for each of the 5 units during that day.
    (3) Furnish the Regional Administrator with reports describing the 
results of the annual particulate matter emissions tests postmarked 
within sixty (60) days of completing the tests. Each report shall 
include the following information:
    (i) The test date;
    (ii) The test method;
    (iii) Identification of the coal burning equipment tested;
    (iv) Values for stack pressure, temperature, moisture, and 
distribution of velocity heads;
    (v) Average heat input;
    (vi) Emissions data, identified by sample number, and expressed in 
pounds per MMBtu;
    (vii) Arithmetic average of sample data expressed in pounds per 
MMBtu; and
    (viii) A description of any variances from the test method.
    (4) Excess Emissions Report. (i) For excess emissions (except in 
the case of saturated stack conditions), the owner or operator shall 
notify the Navajo Environmental Protection Agency Director and the U.S. 
Environmental Protection Agency Regional Administrator by telephone or 
in writing within one business day (``initial notification''). A 
complete written report of the incident shall be submitted to the 
Navajo Environmental Protection Agency Director and the U.S. 
Environmental Protection Agency Regional Administrator within ten (10) 
working days of the initial notification. This notification should be 
sent to the Director, Navajo Environmental Protection Agency, by mail 
to: P.O. Box 339, Window Rock, Arizona 86515, or by facsimile to: (928) 
871-7996 (facsimile), and to the Regional Administrator, U.S. 
Environmental Protection Agency, by mail to the attention of Mail Code: 
AIR-5, at 75 Hawthorne Street, San Francisco, California 94105, by 
facsimile to: (415) 947-3579 (facsimile), or by e-mail to: 
r9.aeo@epa.gov. The complete written report shall include:

    (A) The name and title of the person reporting;
    (B) The identity and location of the Plant and Unit(s) involved, 
and the emissions point(s), including bypass, from which the excess 
emissions occurred or are occurring;
    (C) The time and duration or expected duration of the excess 
emissions;
    (D) The magnitude of the excess emissions expressed in the units of 
the applicable emissions limitation and the operating data and 
calculations used in determining the magnitude of the excess emissions;
    (E) The nature of the condition causing the excess emissions and 
the reasons why excess emissions occurred or are occurring;
    (F) If the excess emissions were the result of a malfunction, the 
steps taken to remedy the malfunction and the steps taken or planned to 
prevent the recurrence of such malfunction;
    (G) For an opacity exceedance, the 6-minute average opacity 
monitoring data greater than 20% for the 24 hours prior to and during 
the exceedance for Units 4 and 5; and
    (H) The efforts taken or being taken to minimize the excess 
emissions and to repair or otherwise bring the Plant into compliance 
with the applicable emissions limit(s) or other requirements.
    For this reporting requirement, excess opacity due to saturated 
stack conditions is exempted.
    (ii) If the period of excess emissions extends beyond the submittal 
of the written report, the owner or operator shall also notify the 
Regional Administrator in writing of the exact time and date when the 
excess emissions stopped. Compliance with the excess emissions 
notification provisions of this section shall not excuse or otherwise 
constitute a defense to any violations of this section or of any law or 
regulation which such excess emissions or malfunction may cause.

[[Page 53639]]

    (g) Equipment Operations. At all times, including periods of 
startup, shutdown, and malfunction, the owner or operator shall, to the 
extent practicable, maintain and operate the Plant including associated 
air pollution control equipment in a manner consistent with good air 
pollution control practices for minimizing emissions. Determination of 
whether acceptable operating and maintenance procedures are being used 
will be based on information available to the Regional Administrator 
which may include, but is not limited to, monitoring results, opacity 
observations, review of operating and maintenance procedures, and 
inspection of the Plant. With regard to the operation of the baghouses 
on Units 4 and 5, placing the baghouses in service before coal fires 
are initiated will constitute compliance with this paragraph. (If the 
baghouse inlet temperature cannot achieve 185 degrees Fahrenheit using 
only gas fires, the owner or operator will not be expected to place 
baghouses in service before coal fires are initiated; however, the 
owner or operator will remain subject to the requirements of this 
paragraph.)
    (h) Enforcement. (1) Notwithstanding any other provision in this 
implementation plan, any credible evidence or information relevant to 
whether the Plant would have been in compliance with applicable 
requirements if the appropriate performance or compliance test had been 
performed, can be used to establish whether or not the owner or 
operator has violated or is in violation of any standard in the plan.
    (2) During periods of startup and shutdown the otherwise applicable 
emission limits or requirements for opacity and particulate matter 
shall not apply provided that:
    (i) At all times the facility is operated in a manner consistent 
with good practice for minimizing emissions, and the owner or operator 
uses best efforts regarding planning, design, and operating procedures 
to meet the otherwise applicable emission limit;
    (ii) The frequency and duration of operation in start-up or 
shutdown mode are minimized to the maximum extent practicable; and
    (iii) The owner or operator's actions during start-up and shutdown 
periods are documented by properly signed, contemporaneous operating 
logs, or other relevant evidence.
    (3) Emissions in excess of the level of the applicable emission 
limit or requirement that occur due to a malfunction shall constitute a 
violation of the applicable emission limit. However, it shall be an 
affirmative defense in an enforcement action seeking penalties if the 
owner or operator has met with all of the following conditions:
    (i) The malfunction was the result of a sudden and unavoidable 
failure of process or air pollution control equipment or of a process 
to operate in a normal or usual manner;
    (ii) The malfunction did not result from operator error or neglect, 
or from improper operation or maintenance procedures;
    (iii) The excess emissions were not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance;
    (iv) Steps were taken in an expeditious fashion to correct 
conditions leading to the malfunction, and the amount and duration of 
the excess emissions caused by the malfunction were minimized to the 
maximum extent practicable;
    (v) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality;
    (vi) All emissions monitoring systems were kept in operation if at 
all possible; and
    (vii) The owner or operator's actions in response to the excess 
emissions were documented by properly signed, contemporaneous operating 
logs, or other relevant evidence.

[FR Doc. E6-15097 Filed 9-11-06; 8:45 am]

BILLING CODE 6560-50-P
