

[Federal Register: May 7, 2007 (Volume 72, Number 87)]
[Rules and Regulations]               
[Page 25698-25708]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07my07-6]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R09-OAR-2006-0184; FRL-8308-6]
RIN 2009-AA01

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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating 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.

EFFECTIVE DATE: This rule is effective on June 6, 2007.

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

SUPPLEMENTARY INFORMATION: EPA has established a docket for this action 
under Docket ID No. R09-OAR-2006-0184. All documents in the docket are 
listed in the Federal eRulemaking portal index at http://www.regulations.gov
 and are available either electronically at 

http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California, 94105. 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. 
A reasonable fee may be charged for copies.
    Throughout this document, ``we,'' ``us'' and ``our'' refer to EPA.

Table of Contents

I. Background of the Final Rule
II. Analysis of Major Issues Raised by Commenters
    A. Jurisdictional and Authority Issues
    B. Concerns About the Scope of the FIP
    C. Comments on Emissions Limits
    D. Comments on Control Requirements
III. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Petitions for Judicial Review

I. Background of the Final Rule

    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).
    In 1999, EPA initially proposed to promulgate a FIP to regulate 
emissions from FCPP. At that time, FCPP had historically achieved 
certain emissions limits which had been approved by EPA into the New 
Mexico SIP. See 40 CFR 52.1640. However, because the New Mexico SIP is 
not approved to apply on the Navajo Indian Reservation, and because the 
Navajo Nation did not have a federally applicable tribal implementation 
plan (TIP), EPA proposed to promulgate a FIP to remedy the existing 
regulatory gap. 64 FR 48731 (September 8, 1999) (1999 proposed FIP). 
The proposed FIP would have, in essence, federalized the requirements 
contained in the New Mexico SIP which FCPP had historically followed. 
In explaining the basis for its proposed action, EPA stated that given 
the magnitude of emissions from the plant, the Agency believed the 
proposed FIP provisions were necessary and appropriate to ensure the 
protection of air quality on the Reservation. 64 FR at 48733.
    Before EPA took final action on the 1999 proposed FIP, a 
stakeholders group of environmental organizations (Environmental 
Defense, Western Resource Advocates, and New Mexico Citizens for Clean 
Air and Water), the National Park Service (NPS), and Arizona Public 
Service (APS), the operating agent for FCPP, convened to discuss the 
facility. The stakeholders group negotiated substantial additional 
sulfur dioxide (SO2) emissions reductions which FCPP 
believed it could achieve by enhancing the efficiency of its existing 
SO2 scrubbers. After testing the program, the Navajo Nation 
and the stakeholders group requested that EPA include these negotiated, 
additional SO2 emissions reductions in the FIP. FCPP agreed 
to increase the amount of SO2 emissions it was eliminating 
from its exhaust stream from 72% to 88%, thereby reducing its annual 
emissions of SO2 to the atmosphere by about 25,000 tons per 
year.
    EPA did not finalize the proposed 1999 FIP after the stakeholders 
group began negotiations. Instead, after the stakeholders group had 
finished its work, EPA proposed a new FIP in September, 2006. 71 FR 
53631 (September 12, 2006) (2006 proposed FIP).
    In the 2006 proposed FIP, EPA again explained that to remedy the 
regulatory gap that exists with regard to FCPP, the Agency was 
proposing to issue a source-specific FIP. EPA proposed to establish 
federally enforceable emission limits for SO2, 
NOX, PM, and opacity, and control measures for dust. For 
SO2, the 2006 proposed FIP included a requirement for FCPP 
to comply with a significantly lower emission limit than the one set 
forth in the 1999 proposed FIP. For NOX and PM emissions, 
EPA again proposed to federalize the emissions limits which FCPP has 
historically followed. In other words, the primary difference between 
EPA's 1999 proposed FIP and our 2006 proposed FIP is our inclusion of 
requirements for FCPP to comply with the more stringent SO2 
emissions limitation.
    EPA's objective at this time in promulgating a FIP for FCPP is to 
remedy the existing regulatory gap described above. Today's action will 
make federally enforceable the emission limitations which FCPP has 
historically followed as well as ensuring that FCPP continues to 
significantly reduce its emissions of SO2. This action will 
help to advance the goals of ensuring continued maintenance of the 
national ambient air quality standards and protecting visibility. Given 
the importance of these goals and the magnitude of emissions from the 
plant, EPA believes that making these limits federally enforceable is 
appropriate to protect air quality on the Reservation and is 
accordingly exercising its discretionary authority under sections 
301(a) and 301(d)(4) of the CAA and 40

[[Page 25699]]

CFR 49.11(a) to promulgate a FIP containing provisions to achieve these 
ends.

II. Analysis of Major Issues Raised by Commenters

    EPA received 43 comment letters on the proposal. The Navajo Nation 
EPA and one environmental organization provided comments in support of 
the proposed FIP. Other commenters raised concerns which focused on 
EPA's jurisdiction over FCPP and our exercise of FIP authority, general 
concerns about air quality and health in the Four Corners area, more 
specific comments about the emission limits and control requirements in 
the proposed FIP, and questions as to whether FCPP's SO2 
emissions reductions were close to or equivalent to that achievable 
through best available retrofit technology (BART).
    EPA held a public informational workshop and public hearing on the 
proposed FIP in Farmington, New Mexico, on October 5, 2006. EPA 
received approximately 36 written and e-mail comments and 7 oral 
comments. Many of those commenting at the public hearing also submitted 
their comments in writing.
    Our complete Response to Comments is contained in a separate 
document in the docket for this rulemaking. A summary of the 
significant comments and responses is provided below.

A. Jurisdictional and Authority Issues

    Comment: Several commenters raised issues regarding EPA's authority 
to promulgate a FIP for FCPP. Some commenters stated that EPA does not 
have the authority to promulgate the proposed FIP because FCPP's 
ongoing compliance with the emissions limits in the New Mexico SIP 
means that there is no regulatory gap for EPA to fill.
    Response: EPA's authority to promulgate a source-specific FIP is 
based on Clean Air Act (CAA) sections 301(a) and (d)(4) and the 
regulations implementing these provisions known as the Tribal Authority 
Rule (TAR) at 40 CFR Part 49. CAA section 301(d)(4) provides EPA with 
broad discretion to promulgate regulations directly for sources located 
in Indian country,\1\ including on Indian reservations if we determine 
such Federal regulations are ``necessary or appropriate'' and the Tribe 
has not promulgated a TIP. Specifically, in 40 CFR 49.11, EPA 
interpreted CAA section 301(d)(4) to authorize EPA to promulgate ``such 
Federal implementation plan provisions as are necessary or appropriate 
to protect air quality.''
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    \1\ ``Indian country'' is defined under 18 U.S.C. 1151 as: (1) 
All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through 
the reservation, (2) all dependent Indian communities within the 
borders of the United States, whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a State, and (3) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same. Under this definition, EPA treats 
as reservations trust lands validly set aside for the use of a Tribe 
even if the trust lands have not been formally designated as a 
reservation.
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    As explained in the 1999 and 2006 proposed FIPs, a regulatory gap 
exists with regard to FCPP. 64 FR at 43,955; 71 FR at 53,632. Although 
FCPP has historically followed the rules in the New Mexico SIP, EPA has 
not found that New Mexico had regulatory authority under the CAA on the 
Navajo Indian Reservation and has not approved the State's 
implementation plan for any area on the Reservation. It is EPA's 
position that, absent an explicit finding of jurisdiction and approval 
in Indian country, State and local governments lack authority under the 
CAA over air pollution sources, and the owners or operators of air 
pollution sources, throughout Indian country. See 63 FR 7254, 7259 
(February 12, 1998) (responding to comment that EPA should `` 
`grandfather' existing facility subject to state authority so that 
states continue to regulate those facilities until the affected parties 
all agree cooperatively to a transition from state to tribal 
jurisdiction''). Therefore, the New Mexico SIP does not apply to FCPP 
and there is a regulatory gap.
    EPA is exercising its discretion to promulgate emission limitations 
for FCPP to close this regulatory gap in light of the magnitude of the 
emissions of NOX, SO2, and PM from FCPP. This FIP 
will help to ensure maintenance of the NAAQS and progress towards 
meeting the national visibility goal and help to maintain consistent 
standards on the Navajo Indian Reservation and its neighboring States.
    The source-specific FIP published today is based on the same CAA 
authority that EPA has used elsewhere in rulemakings and that has been 
affirmed by the courts. EPA's interpretation of its authority in the 
TAR was affirmed by the U.S. Court of Appeals for the District of 
Columbia Circuit in Arizona Public Service Co. v. EPA, 211 F.3d 1280 
(D.C. Cir. 2000), cert. denied, 121 S. Ct. 1600 (2001). That court also 
upheld EPA's authority to issue operating permits to major stationary 
sources located in Indian country under Title V of the CAA, pursuant to 
regulations at 40 CFR Part 71. State of Michigan v. EPA, 268 F.3d 1075 
(D.C. Cir. 2001). In addition, in an unpublished opinion in December 
2006, the Ninth Circuit Court of Appeals found that EPA's promulgation 
of a FIP establishing agricultural burning rules that applied to some, 
but not all reservations in the Northwestern United States was not 
arbitrary and capricious. Safe Air for Everyone v. EPA, No. 05-73383 
(9th Cir., Dec. 8, 2005). A copy of the unpublished opinion is in our 
docket.
    EPA has used its authority in CAA sections 301(a) and (d), as 
implemented through 40 CFR Part 49, to issue a number of FIPs to 
address air pollution concerns at specific facilities located in Indian 
country. See, e.g., Federal Implementation Plan for Tri-Cities 
Landfill, Salt River Pima-Maricopa Indian Community, 40 CFR 49.22 (64 
FR 65663 (November 23, 1999)); Federal Implementation Plan for the 
Astaris-Idaho LLC Facility (formerly owned by FMC Corporation) in the 
Fort Hall PM10 Nonattainment Area, 40 CFR 49.10711 (65 FR 
51412 (August 23, 2000).
    Therefore, we disagree with those comments challenging EPA's 
authority to promulgate a FIP for FCPP.

B. Concerns About the Scope of the FIP

    Comment: The overwhelming majority of commenters indicated that in 
issuing a FIP for FCPP, EPA should go beyond merely federalizing the 
emission limits which FCPP has historically followed. Most commenters 
raised concerns about poor air quality, deteriorating visibility and 
high rates of cancer, asthma, and other respiratory problems in the 
Four Corners area, and a number requested that EPA prohibit any 
emissions from the facility rather than merely federalizing the limits 
the facility has historically followed. Other commenters urged EPA to 
take regulatory action to regulate or to further reduce emissions of 
SO2, NOX, PM, mercury, and ``toxic emissions.'' 
Commenters raised a variety of general concerns regarding health 
impacts associated with FCPP, including the public health and/or 
environmental impacts of fugitive dust from coal mining, mercury (Hg) 
and carbon dioxide (CO2, greenhouse gases). Another 
commenter argued that in issuing a FIP for FCPP, EPA must comply not 
only with the requirements of section 301 of the CAA but also ensure 
through the FIP process that FCPP is in compliance with all applicable 
federal and state ambient standards by complying with the requirements 
of section 110 of the CAA addressing State implementation plans.

[[Page 25700]]

    Response: EPA is taking action to close the regulatory gap that 
exists with respect to FCPP. As explained above, at present there is 
not currently an approved implementation plan covering FCPP. EPA's 
exercise of authority in issuing this FIP is based on the Agency's 
conclusion that it is appropriate to protect air quality on the 
Reservation by remedying the lack of federally enforceable limits 
applicable to this facility. As such, our action is limited to making 
enforceable those emissions limits which FCPP has historically 
followed, or in the case of SO2, an emission limit FCPP has 
achieved following a successful test program to determine if the 
existing scrubbers at FCPP could be improved.
    Today's action is an important step in protecting air quality on 
the Reservation. As noted in the proposal, this action will contribute 
towards ensuring continued maintenance of the NAAQS and towards 
protecting visibility. EPA acknowledges that additional regulatory 
actions by EPA may be necessary or appropriate in the future to further 
protect air quality on the Navajo Reservation, depending on, among 
other things, conditions on the Reservation and the decisions of the 
Navajo Nation to exercise its discretionary authority under the CAA.

C. Comments on Emissions Limits

1. Comments on Emissions Limits for Pollutants Other Than 
SO2
    Comment: Several commenters urged EPA to take regulatory action in 
addition to the proposed FIP to require reductions of NOX 
and PM emissions from FCPP. In particular, several commenters urged EPA 
to undertake a BART determination for FCPP's NOX emissions.
    Response: EPA agrees that it may be necessary or appropriate in a 
future rulemaking to require FCPP to reduce its NOX or PM 
emissions below those levels which were historically contained in the 
New Mexico SIP or which are necessary to comply with the Acid Rain 
program. Today's rule, however, does not address the requirements of 
EPA's nationally applicable Regional Haze rule, codified at 40 CFR 
51.308, which contains specific implementation plan requirements 
regarding BART determinations.\2\
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    \2\ Such implementation plans are not required from the States 
until December 17, 2007[0]. Tribes are not subject to any 
mandatory deadlines to submit regional have implementation plans. 
See 40 CFR 49.7(c); 64 FR at 35758 (``For example, unlike States, 
tribes are not required by the TAR to adopt and implement CAA plans 
or programs, thus tribes are not subject to mandatory deadlines for 
submittal of implementation plans.''
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    EPA intends to apply any requirements for FCPP to achieve a 
reduction in its NOX or PM emissions in a separate 
rulemaking. EPA will begin gathering information from FCPP to determine 
what measures, if any, are appropriate for the facility to implement to 
reduce its NOX and PM emissions to comply with the Regional 
Haze Rule's requirements for BART.
2. Comments on Emission Limit for SO2
    Comment: A number of commenters requested EPA to promulgate a FIP 
that would require FCPP to reduce its SO2 emissions to 
greater than 88% SO2 removal from the exhaust gas. Some 
comments questioned the method which EPA specified FCPP should use to 
determine how much SO2 was being removed or that removal 
efficiency should be determined by SO2 CEMs located before 
and after the scrubber. The commenters noted that FCPP should not be 
able to count as ``removed'' sulfur that is retained in bottom and 
flyash.
    Response: The removal efficiency that FCPP historically met (72%) 
and the increased efficiency required in this FIP (88%) are based on 
comparison of the percentage of sulfur in the coal that FCPP is 
combusting and the outlet concentration of sulfur expressed as 
SO2. The commenters are correct that some of the sulfur is 
retained in bottom and flyash. However, comparing coal sampling for 
sulfur content to the SO2 emitted at the stacks remains the 
most technically appropriate method of demonstrating compliance. FCPP 
uses a coal sampling tower that meets American Society of Testing and 
Materials (ASTM) specifications for obtaining a representative sample 
of the coal for sulfur analysis prior to combustion.
    EPA agrees with one commenter that the regulatory language 
establishing the 88% removal efficiency should be clarified in the 
final FIP. Instead of stating the limit as ``12 percent of that which 
is produced by the coal burning equipment * * * '', EPA will change the 
FIP to reflect that the SO2 limit is based on limiting 
emissions to 12% of the sulfur in the coal.
3. Comments on Whether FCPP's 88% Reduction of SO2 Emissions 
Is Close to or Equivalent to BART
    Comment: EPA received several comments regarding our statement in 
the preamble to the 2006 proposed FIP that ``EPA believes that the 
SO2 controls proposed today for FCPP are close to or the 
equivalent of a regional haze BART determination for SO2. 
This takes into consideration the early reductions that this action 
will achieve and the modifications to the existing SO2 
scrubbers.'' One commenter called upon EPA to conduct a full 
SO2 BART analysis before taking final action. Another 
commenter disagreed with our statement that 88% control of 
SO2 for FCPP is ``close to or the equivalent of'' BART and 
called upon EPA to require FCPP to meet what it characterized as the 
applicable presumptive BART requirement. In contrast, other comments 
supported EPA's statement or echoed the importance of achieving 
SO2 emissions reductions from FCPP now rather than on the 
schedule anticipated for BART determinations.
    Response: EPA is not making a BART determination for FCPP today. As 
noted in the preamble to the proposed FIP, the level of control in the 
FIP for FCPP is ``close to or the equivalent'' of BART for this source. 
EPA agrees that if the Agency were to undertake a case-by-case BART 
analysis, BART could potentially be determined to be a greater level of 
control than 88% SO2 removal.\3\ However, any case-by-case 
BART analysis would be subject to the timeframes needed to implement 
such controls. As explained above, under the TAR, EPA has the 
discretion to promulgate FIPs, as necessary or appropriate, within 
reasonable timeframes to protect air quality in Indian country. Id. In 
today's rulemaking EPA is exercising its discretion under 40 CFR 49.11 
to find that it is neither necessary or appropriate at this time to 
undertake a BART determination for SO2 for FCPP given the 
timing of the substantial SO2 reductions resulting from this 
FIP. Moreover, as explained in the preamble to the 2006 proposed FIP, 
there are only two major sources of SO2 on the Navajo 
Reservation that are potentially subject to the BART requirements--
Navajo Generating Station and FCPP. 71 FR at 53632. EPA determined 
previously that the SO2 emission limits in the 1991 FIP for 
the Navajo Generating Station provide for greater reasonable progress 
toward the national visibility goal than would BART. 71 FR at 53633. As 
explained above, given that the SO2

[[Page 25701]]

controls for FCPP immediately achieve significant reductions in 
SO2 comparable to what could ultimately be achieved through 
a formal BART determination, EPA believes that it will not be necessary 
or appropriate to develop a regional haze plan to address 
SO2 for the Navajo Nation in the near term.
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    \3\ EPA disagrees with the comment that the BART Guidelines, 70 
FR 39104, 39171 (July 6, 2005) established a presumption that BART 
at FCPP is 95% control for SO2. Although the BART 
Guidelines did establish a presumption of either 95% control for 
SO2 or 0.15 lbs/MMBtu for large power plants, this 
presumption applies only to power plants that are currently 
uncontrolled or achieving less than 50% control of SO2. 
Id. As indicated in the preamble to the proposed FIP, this 
presumption thus does not apply to power plants, such as FCPP, with 
existing SO2 controls achieving at least 50% removal 
efficiency. 71 FR at 53633; see also 70 FR at 39171.
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    The Navajo Nation EPA has specifically requested EPA to take this 
action, and in doing so stated: ``Given the results of the APS study, 
the Navajo Nation agrees that an 88% SO2 removal rate for 
SO2 at Four Corners Power Plant appears to be equivalent to 
BART, especially taking into account the early reductions that will be 
achieved.'' Letter from Stephen Etsitty, to Deborah Jordan, dated 
December 6, 2005. EPA generally agrees with the Navajo Nation's 
assessment and has, therefore, taken this step in regulating emissions 
on the Navajo Nation reservation.
4. Comments on Opacity Emission Limits
    Comment: One commenter objected to the lack of a 20% opacity 
standard for Units 1, 2, and 3. Other comments objected to the FIP's 
exemption of water vapor from the 20% opacity standard on Units 4 and 5 
and also criticized exempting the Units from compliance with the 
opacity limit during startup and shutdown when the units dropped below 
300 MW. In contrast, another commenter stated that the opacity 
requirements on these units are overly restrictive, especially as they 
pertain to periods of malfunction.
    Response: Opacity limits are generally applied to ensure a source 
is meeting its PM emissions limit. For Units 1, 2, and 3, however, an 
opacity limit (coupled with a continuous opacity monitors (COMS)) would 
not be an appropriate method for ensuring compliance with the PM 
emissions limits for these units. This is because Units 1, 2, and 3 use 
venturi scrubbers to reduce PM emissions; due to interference from 
steam in the exhaust, COMS can not be used to monitor opacity on these 
stacks. Given this, EPA finds that the use of opacity limits to ensure 
that FCPP is meeting its PM emissions limits is not appropriate for 
these units. EPA continues to find, and is finalizing in today's 
action, that parametric monitoring of each venturi scrubber is the best 
method of assuring proper operation to minimize the emissions of PM.
    Units 4 and 5 have always operated with an exemption from opacity 
limits during shutdown. The commenter has not provided any information 
demonstrating that exempting these units during shutdown harms the 
environment or public health.
    With regards to comments requesting an exemption from the opacity 
limit during malfunctions, EPA has explained below its reasons for 
providing an affirmative defense for these periods. With regards to the 
comment on the phrasing for exempting water vapor, EPA agrees that this 
should be changed to uncombined water droplets. With respect to the 
commenter requesting a demonstration that the opacity was caused by 
uncombined water droplets, EPA believes this is not necessary. The 
opacity limit for this facility is set to assure proper operation of 
the baghouse. The rule will require that the facility assure that there 
has been no bypass through the bypass damper during these periods of 
assumed water droplet interference. The facility will be required to 
report these as apparent excess emissions in their quarterly excess 
emissions report. If anything inappropriate shows up in the reports, 
EPA can follow up to get better clarification of the issue.

D. Comments on Control Requirements

    Comment: One commenter was concerned that the heat input for the 
FCPP Plant may have increased over a number of years as indicated from 
the ``EPA Acid Rain Scorecard'' and wanted to know if this increase 
constituted a major modification triggering permitting.
    Response: EPA is undertaking this rulemaking pursuant to our 
rulemaking authority established in CAA sections 301(a) and 301(d) to 
promulgate source-specific FIPs in Indian Country. EPA is not 
addressing in today's action the status of this source with respect to 
any need for major source permitting or whether or not a modification 
had occurred at the plant.
    We do note that changes in the heat input reflected by the ``EPA 
Acid Rain Scorecard'' do not necessarily indicate that an electric 
generating unit (EGU) has made a major modification. For example, the 
methodology for determining heat input to EGUs used in the Scorecard 
changed with the 1995 data. For the years before this, the Scorecard 
relied on coal consumption data provided to the EIA, while from 1995 on 
it was determined by flow measurements in the stack and calculated 
based on 40 CFR Part 60, Appendix A, Method 19.
    Comment: One commenter questions whether or not the current method 
of flyash disposal is safe.
    Response: The only regulatory action in this rule regarding flyash 
addresses the generation of dust while handling the flyash on site. The 
rule is imposing a 20% opacity limit on transfer points for flyash. 
This will cover the ash that is being sold for use as an additive to 
cement and the process for mixing of flyash and scrubber sludge for 
disposal at the mines. This regulation does not evaluate or control the 
method of disposal at the mine.
    Comment: One commenter questions whether or not the facility was 
ever exempted from opacity monitoring as required and then eligible for 
exemption under 40 CFR 75.10(a) and 40 CFR 75.14(b), respectively.
    Response: EPA is not aware that there was any specific exemption 
requested or granted to this facility. However, EPA has had extensive 
experience inspecting and negotiating with this plant since the early 
1990's. EPA has been aware that even to the extent FCPP has followed 
the New Mexico rules, the three venturi scrubbed units (1, 2, and 3) 
have had no opacity limit and no opacity monitoring in the stacks. 
These units have venturi scrubbers that cannot be bypassed while the 
unit is in operation and the stacks have an exhaust gas stream that is 
always saturated. If a specific exemption was required, EPA would grant 
it for these three units upon request by the facility.
    Comment: APS has commented that parametric monitoring should not be 
required by this rule, but that EPA should wait until Compliance 
Assurance Monitoring (CAM) is required by the facility's Title V 
permit. The commenter goes on to say if parametric monitoring is 
required that there should be a six month schedule for installation and 
shakedown of the equipment.
    Response: EPA disagrees with the comment that EPA should wait to 
require the parametric monitoring under CAM. EPA believes that newly 
created applicable requirements, such as the emissions limitations in 
the FCPP FIP, should establish adequate monitoring, recordkeeping, and 
reporting that will assure compliance. It would not be appropriate to 
establish new applicable requirements (in the form of FCPP FIP 
requirements) that lack compliance-assuring monitoring, recordkeeping, 
and reporting requirements. Therefore, FCPP should establish parametric 
monitoring, and recordkeeping and reporting requirements, in 
conjunction with this source-specific FIP rule.
    CAM is designed as a gap filling mechanism where the parametric 
monitoring required for an applicable requirement is insufficient to 
ensure compliance. All rules, such as the FCPP FIP, should have 
sufficient monitoring to assure compliance rather than rely on

[[Page 25702]]

the gap filling anticipated by CAM. EPA believes that the parametric 
monitoring is the most appropriate method to assure continuous 
compliance with the PM limits in this rule for Units 1, 2, and 3. EPA 
concurs that FCPP should be allowed a six month period to comply with 
this requirement and the final regulatory language reflects this.
    Comment: FCPP commented that its emissions during startup, shutdown 
and malfunction events should be exempt from the emissions limits, and 
therefore not considered violations, rather than subject to an 
affirmative defense for penalties.
    Response: EPA acknowledges the New Mexico SIP contained an 
exemption for these emissions. However, in our 1999 proposed FIP, EPA 
recognized that the New Mexico SIP's exemption of startup, shutdown and 
malfunction emissions from FCPP was in error. The 1999 proposed FIP 
contained a provision similar to the affirmative defense provision in 
the 2006 proposed FIP for malfunction events and alternate emissions 
limits for startup.
    EPA has set forth its position on numerous occasions stating that 
emissions during startup, shutdown and malfunction events are 
considered violations of the underlying emissions limitations. For 
startup and shutdown events, EPA may set alternate limits where it is 
technically infeasible for the equipment to meet the emissions limit 
for a defined period of time. Such alternate startup and shutdown 
limits are not exemptions. For excess emissions resulting from 
malfunctions, EPA's longstanding position, as reflected in numerous 
policy documents and rulemakings, is that those emissions are 
violations of the underlying requirement but that the regulatory agency 
may provide that the violator may assert an affirmative defense to a 
claim for penalties based on the affirmative defense language such as 
we proposed.
    FCPP's arguments on the issue, which are legal rather than 
technical, boil down to: (1) The CAA should only require excess 
malfunction emissions to be violations if those emissions would cause a 
violation of the NAAQS, (2) it is unfair to find a violation where the 
emissions are sudden and unavoidable, (3) the requirement to take all 
steps and to do everything possible renders the affirmative defense 
provision a ``nullity,'' and (4) the provision improperly usurps the 
judicial function of establishing the burden of proof. In response to 
the first point, the CAA contains numerous requirements that cannot be 
directly correlated with an exceedance of the NAAQS. (See, e.g. 40 
U.S.C. 7410(a)(2) (requirements for SIPs).) Furthermore, NAAQS 
violations are rarely based on emissions from just one source, but 
rather from emissions from several or many sources. As to FCPP's second 
point, EPA agrees that penalties may not be appropriate where a 
malfunction was beyond the source's control and the source has taken 
all necessary actions to minimize emissions during the malfunction and 
to quickly remedy the problem. However, EPA does not agree that it is 
unfair to allow for claims for injunctive relief where a malfunction 
has occurred. The criteria ensure that these conditions are met before 
a source may be relieved from paying penalties while also allowing for 
claims for injunctive relief to proceed. On the third point, we 
disagree. The criteria represent reasonable mechanisms that sources 
should have in place to minimize and mitigate any adverse effects from 
malfunctions. For the fourth point, we are unclear what the commenter 
means by saying the defense ``usurps the judicial function of 
establishing burden of proof.'' However, we think that each party bears 
the appropriate burden in any enforcement case. The party seeking to 
enforce a claim bears that burden of proving that excess emissions 
occurred to establish a violation. FCPP may raise as a defense to 
penalties that the violation was unavoidable and FCPP took appropriate 
preventive and corrective action. The court retains its function of 
determining whether each party has met its burden. Therefore, EPA is 
finalizing the language proposed in the FIP allowing an affirmative 
defense for excess emissions resulting from malfunctions.
    Comment: FCPP also commented that the FIP should not become 
effective until 18 months following promulgation because EPA's 2006 
proposed FIP contained a new 20% opacity requirement for certain dust-
generating activities.
    Response: EPA agrees that FCPP may have 18 months to develop the 
necessary controls to ensure it does not exceed 20% opacity from its 
dust generating activities. EPA also agrees that FCPP may have the 
requested additional time to develop a parametric monitoring plan and 
to install CEMS and collect adequate data to demonstrate compliance 
with the SO2 emission limit.
    Comment: FCPP commented that it did not agree with EPA's option in 
the proposed preamble to impose a 40% opacity limit for Units 1, 2, and 
3.
    Response: EPA agrees for the reasons discussed above concerning why 
EPA will not impose a 20% opacity limit on Units 1, 2, and 3.

III. Administrative Requirements

A. Executive Order 12866

Regulatory Planning and Review

    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 FIP is a ``significant regulatory action'' because it raises 
novel legal or policy issues. Nevertheless, after reviewing information 
regarding this action, the Office of Management and Budget waived 
review of this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Under the Paperwork Reduction Act, a ``collection of information'' is 
defined as a requirement for ``answers to * * * identical reporting or 
recordkeeping requirements imposed on ten or more persons * * *'' 44 
U.S.C. 3502(3)(A). Because the FIP applies to a single facility, FCPP, 
the Paperwork Reduction Act does not apply. See 5 CFR 1320(c).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control

[[Page 25703]]

numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final action on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The FIP for 
FCPP being finalized today does not impose any new requirements on 
small entities. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 
F.2d 327 (D.C. Cir. 1985)

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 04-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under UMRA section 202, 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 UMRA section 202 
requires a written statement, UMRA section 205 generally requires EPA 
to identify and consider a reasonable number of regulatory 
alternatives. Under UMRA 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 UMRA section 205 do not apply when they 
are inconsistent with applicable law. UMRA section 204 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 final 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 final FIP is not likely to result in the 
expenditure of $100 million or more by the private sector in any one 
year. Although the final FIP imposes enforceable duties on an entity in 
the private sector, the costs are expected to be minimal. Consequently, 
UMRA sections 202, 204, and 205 do not apply to the final FIP.
    Before EPA establishes any regulatory requirements that might 
significantly or uniquely affect small governments, it must have 
developed under UMRA section 203 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 final FIP will not significantly or 
uniquely affect small governments, because it imposes no requirements 
on small governments. Therefore, the requirements of UMRA section 203 
do not apply to the final FIP. Nonetheless, EPA worked closely with 
representatives of the Tribe in the development of today's action.

E. Executive Order 13132: Federalism

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

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires 
EPA to develop ``an accountable process to ensure meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' Under Executive Order 13175, to the 
extent practicable and permitted by law, EPA may not issue a regulation 
that has tribal implications, that imposes substantial direct 
compliance costs on Indian tribal governments, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay 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. In 
addition, to the extent practicable and permitted by law, EPA may not 
issue a regulation that has tribal

[[Page 25704]]

implications and pre-empts tribal law unless EPA consults with tribal 
officials early in the process of developing the proposed regulation 
and prepares a tribal summary impact statement.
    EPA has concluded that this final rule may have tribal implications 
because it will impose federally enforceable emissions limitation on a 
major stationary source located and operating on the Navajo 
reservation. However, this final rule will neither impose substantial 
direct compliance costs on tribal governments nor pre-empt Tribal law 
because the final FIP imposes obligations only on the owner or operator 
of FCPP.
    EPA has also consulted extensively with officials of the Navajo 
Nation in the process of developing this regulation. EPA had 
discussions with Tribal representatives during proposal of the FIP in 
1999. By letter dated December 5, 2005, the Navajo Nation EPA supported 
the action taken in this FIP. Tribal officials attended the public 
information workshop and public hearing on the proposed FIP. Therefore, 
EPA has allowed Navajo Nation to provide meaningful and timely input 
into development of this FIP.

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

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule 
implementing a Federal standard.

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

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub L. 104-113, 12 (10) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures and 
business practices) that are developed or adopted by the VCS bodies. 
The NTTAA directs EPA to provide Congress, through annual reports to 
OMB, with explanations when the Agency decides not to use available and 
applicable VCS.
    Consistent with the NTTAA, the Agency conducted a search to 
identify potentially applicable VCS. For the measurement of the sulfur 
in the coal for calculating the efficiency of the SO2 
scrubbers for FCCP, EPA proposes to require use of 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 VCS that appear to have possible use in lieu of the EPA 
test methods and performance specifications (40 CFR Part 60, Appendices 
A and B) noted next to the measurement requirements. It would not be 
practical to specify these standards in the current rulemaking due to a 
lack of sufficient data on equivalency and validation and because some 
are still under development. However, EPA's Office of Air Quality 
Planning and Standards is in the process of reviewing all available VCS 
for incorporation by reference into the test methods and performance 
specifications of 40 CFR Part 60, Appendices A and B. Any VCS so 
incorporated in a specified test method or performance specification 
would then be available for use in determining the emissions from this 
facility. This will be an ongoing process designed to incorporate 
suitable VCS as they become available.
    Particulate Matter Emissions--EPA Methods 1 though 5
    Opacity--EPA Method 9 and Performance Specification Test 1 for 
Opacity Monitoring
    SO2--EPA Method 6C and Performance Specification 2 for 
Continuous SO2 Monitoring
    NOX--EPA Method 7E and Performance Specification 2 for 
Continuous NOX Monitoring.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes 
Federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it strengthens 
the level of protection provided to human health or the environment. 
This final rule requires emissions reductions and makes emissions 
limitations federally enforceable for a major stationary source.

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. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
section 804(2). This rule will be effective June 6, 2007.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 6, 2007. 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

[[Page 25705]]

for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See CAA section 
307(b) (2)).

List of Subjects in 40 CFR Part 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Indians, Intergovernmental relations, Reporting 
and recordkeeping requirements.

    Dated: April 30, 2007.
Stephen Johnson,
Administrator.

0
Title 40, chapter I of the Code of Federal Regulations is amended as 
follows:

PART 49--[AMENDED]

0
1. The authority citation for part 49 continues to read as follows:

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


0
2. Section 49.23 is added to read as follows:


Sec.  49.23  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 Indian Reservation 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 rule 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.
    (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) Business Day. Business day means a normal working day, 
excluding weekends and Federal Holidays.
    (4) Daily average means the arithmetic average of the hourly values 
measured in a 24-hour period.
    (5) Excess emissions means the emissions of air contaminants in 
excess of an applicable emissions limitation or requirement.
    (6) 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 40 CFR Part 75.
    (7) 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.
    (8) 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.
    (9) Oxides of nitrogen (NOX) means the sum of nitric 
oxide (NO) and nitrogen dioxide (NO2) in the flue gas, 
expressed as nitrogen dioxide.
    (10) Plant-wide basis means total stack emissions of any particular 
pollutant from all coal burning equipment at the Plant.
    (11) Regional Administrator means the Regional Administrator of the 
Environmental Protection Agency (EPA) Region 9 or his/her authorized 
representative.
    (12) 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.
    (13) 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.
    (14) 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 percent of the potential combustion concentration assuming 
all of the sulfur in the coal is converted to SO2. This 
percent emitted is determined by a daily calculation of the plantwide 
heatinput weighted annual average.
    (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 three sampling runs, each at 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, 
flyash handling and storage, and road sweeping activities. Within 548 
days of promulgation of this section each owner or operator shall not 
emit dust with an opacity greater than 20 percent 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 uncombined 
water droplets, averaged over any six (6) minute period, except for one 
six (6) minute period per hour of not more than 27% opacity.
    (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

[[Page 25706]]

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 (uncombined water droplets). 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 thereunder shall be 
submitted 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 percent. The data from the 40 CFR Part 75 
monitors shall not be bias adjusted. If a valid SO2 pounds 
per hour or heat input is not available for any hour for a unit, that 
heat input and SO2 pounds per hour shall not be used in the 
calculation of the annual plant-wide average.
    (3) Particulate Matter. Particulate matter emissions shall be 
determined by averaging the results of three test runs. Each test run 
shall be sixty (60) minutes in duration and shall collect a minimum 
volume of thirty (30) dry standard cubic feet. Within six (6) months of 
promulgation of this section, particulate matter testing shall be 
conducted annually and at least six (6) months apart, with the 
equipment within 90 percent 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 Region 9 Enforcement Office, 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 Region 9 Enforcement 
Office) 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] TR07MY07.050

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. Hourly averages shall be computed using at least one data point 
in each fifteen minute quadrant of an hour. Notwithstanding this 
requirement, an hourly average may be computed from at least two data 
points separated by a minimum of 15 minutes (where the unit operates 
for more than one quadrant in an hour) if data are unavailable as a 
result of performance of calibration, quality assurance, preventive 
maintenance activities, or backups of data from data acquisition and 
handling system, and recertification events. When valid SO2 
pounds per hour, NO2 pounds per hour, or NO2 
pounds per million Btu emission data are not obtained because of 
continuous monitoring system breakdowns, repairs, calibration checks, 
or zero and span adjustments, emission data must be

[[Page 25707]]

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. If a parameter essential for 
determining either the SO2 pound per hour or the heat input 
is not valid or unavailable, that hour for that unit shall not be used 
in calculating the percent emissions of SO2 for the plant-
wide limit. The necessary software for determining compliance with the 
SO2 plantwide annual average shall be installed and 
operating within 180 days of the effective date of this rule. The first 
day for determining compliance with the plantwide SO2 limit 
shall be 365 days after the successful installation of the software.
    (6) The owner or operator shall maintain a set of opacity filters 
to be used as audit standards.
    (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 90 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 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 percent 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 eighty (180) 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 
semi-annually. 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). For Units 4 and 5, periods of 
excess opacity due to water droplets shall be reported in the summary 
report required by 40 CFR 60.7(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. For any hours on any unit where data 
for SO2 hourly pounds or heat input is missing, identify the 
unit number and monitoring device that did not produce valid data that 
caused the missing hour.
    (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

[[Page 25708]]

    (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 percent 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.
    (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. E7-8530 Filed 5-4-07; 8:45 am]

BILLING CODE 6560-50-P
