

[Federal Register: September 12, 2006 (Volume 71, Number 176)]
[Proposed Rules]               
[Page 53639-53646]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12se06-26]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R09-OAR-2006-0185; FRL-8218-6]

 
Source-Specific Federal Implementation Plan for Navajo Generating 
Station; 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 Navajo Generating Station (NGS), a coal-
fired power plant located on the Navajo Indian Reservation near Page, 
Arizona.

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

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0185, 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. Visibility FIP
    E. Historical Overview of NGS FIP Actions
II. Basis for Proposed Action
    EPA's Authority to Promulgate a FIP in Indian Country
III. Navajo Generating Station Facility Description
IV. Summary of FIP Provisions
    A. Proposed FIP Standards
    B. Other Requirements
    C. Compliance Schedule
V. Other Requirements for NGS

[[Page 53640]]

    A. Visibility FIP
    B. Acid Rain Program Requirements
VI. Solicitation of Comments
VII. 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 total particulate 
matter (PM) and sulfur dioxide (SO2) applicable to the NGS. 
The FIP also proposes Federally enforceable emissions limitations for 
opacity and control measures for dust.

B. Facility

    NGS is a coal-fired power plant located on the Navajo Indian 
Reservation, just east of Page, Arizona, approximately 135 miles north 
of Flagstaff, that is owned and operated by Salt River Project (SRP). 
Through lease agreements, the facility utilizes real property held in 
trust by the Federal government for the Navajo Nation. The facility 
operates three units, each with a capacity of 750 megawatts (MW) net 
generation. The total capacity of the facility is 2250 MW. Operations 
at the facility produce emissions of sulfur dioxide, nitrogen dioxide, 
and particulate matter.

C. Attainment Status

    NGS is located in the Northern Arizona Intrastate air quality 
control region (AQCR), which is designated unclassifiable for all 
criteria pollutants under the Clean Air Act (CAA or ``the Act''). See 
40 CFR 81.303. The proposed NGS FIP establishes Federally enforceable 
emissions limitations that are more stringent than, or at least as 
stringent as, the emissions limitations with which NGS has historically 
complied. Therefore, EPA believes that air quality in this area will be 
positively impacted by this action.

D. Visibility FIP

    In 1987, EPA issued a visibility FIP for the state of Arizona 
addressing reasonably attributable visibility impairment.\1\ 52 FR 
45132 (November 24, 1987). Following a report issued by the National 
Park Service that identified NGS as a source of visibility impairment 
in the Grand Canyon National Park, EPA preliminarily determined that 
visibility impairment at the Grand Canyon was reasonably attributable 
to emissions of SO2 from NGS. See 54 FR 36948 (September 5, 
1989). Under the visibility regulations, such impairment must be 
addressed in accordance with 40 CFR 51.302(c), which sets forth 
measures for achieving reasonable progress, including best available 
retrofit technology (BART). Id. In 1991, EPA revised the visibility FIP 
for the state of Arizona to include an SO2 emission limit 
for NGS to remedy visibility impairment in the Grand Canyon National 
Park that was reasonably attributable to NGS. 56 FR 50172 (October 3, 
1991), codified at 40 CFR 52.145. Under the 1991 visibility FIP, NGS 
was required to phase-in compliance with the SO2 emission 
limit, by installing scrubbers in 1997, 1998, and 1999. 40 CFR 
52.145(d)(7). In establishing the SO2 emission limit for 
NGS, which includes a higher level of control than that proposed as 
BART, EPA determined that the FIP would provide for greater reasonable 
progress toward the national visibility goal than implementation of 
BART. 56 FR 50172.
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    \1\ On December 2, 1980, EPA issued regulations addressing 
visibility impairment that is traceable or ``reasonably 
attributable'' to a single source or small group of sources. 45 FR 
80084, codified at 40 CFR parts 300-307. These regulations required 
a number of States to submit State Implementation Plans (SIPs) no 
later than September 2, 1981. Most States, including Arizona, failed 
to submit SIPs as called for by the regulations.
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    The 1991 visibility FIP is not being amended or changed by today's 
action. The visibility FIP remains in full force and effect and this 
rulemaking does not provide an opportunity for public comment or 
judicial review of EPA's earlier actions promulgating the 1991 
visibility FIP.

E. Historical Overview of NGS 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 and 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 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 (D.C. 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 may have believed could 
apply under the Clean Air Act to private facilities operating on 
adjacent Indian reservations. Such was the case for NGS. The SIP for 
Arizona, and permits issued pursuant to the SIP, contained emissions 
limitations purported to apply to NGS and with which NGS was complying.
    However, EPA recognized that Arizona's SIP emissions limits do not 
apply to NGS under the Clean Air Act, and on September 8, 1999, EPA 
proposed a source-specific FIP for NGS. See 64 FR 48725 (September 8, 
1999). The 1999 proposed FIP stated: ``Although the facility has been 
historically regulated by Arizona since its construction, the state 
lacks jurisdiction over the facility or its owners or operations for 
CAA compliance or enforcement purposes.'' EPA intended for the 1999 NGS 
FIP to ``Federalize'' the emissions limitations that Arizona had 
erroneously included in its State Implementation Plan. 64 FR at 48727. 
EPA received comments on the proposed 1999 FIP but did not take action 
finalizing the proposal.
    Today's proposed rule would promulgate Federally enforceable 
emissions limits for PM and SO2. The 1991 visibility FIP 
includes an SO2 emission limit for the NGS that is more 
stringent than the emissions limitation for SO2 set out in 
today's proposed rule. However, the SO2 limit included in 
today's proposed rule is a short-term emissions limit, unlike the 
annual emissions limit in the 1991 visibility FIP.
    EPA is also proposing to establish an emissions limitation for 
opacity and a requirement for control measures to

[[Page 53641]]

limit dust emissions. In addition, the proposed FIP contains 
NOX and SO2 emissions limitations that apply to 
NGS as part of the Acid Rain program, which was also added when the 
Clean Air Act was amended in 1990.

II. Basis for Proposed Action

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)).\2\
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    \2\ 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 at 7264-7265.
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     Since there is not currently an approved Implementation Plan 
covering NGS, 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 PM, 
SO2, 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 NGS. EPA's FIP will 
establish Federally enforceable emissions limits applicable to NGS to 
provide for maintenance of the national ambient air quality standards. 
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.

III. Navajo Generating Station Facility Description

    NGS is a 2250 MW (net generation) coal-fired power plant located on 
the Navajo Indian Reservation near Page, Arizona. NGS is a baseload 
generating station consisting of three 750 MW (net generation) units 
which became operational between 1974 and 1976. SRP is the operating 
agent for NGS, which is jointly owned by SRP, the Los Angeles 
Department of Water and Power, the Arizona Public Service, the Nevada 
Power Company, and the Tucson Electric Power Company. Existing 
pollution control equipment at NGS includes electrostatic precipitators 
for PM removal and burners specifically designed for NOX 
control. Furthermore, to meet the emission limits in the 1991 
visibility FIP, NGS installed limestone wet scrubbers on each unit to 
reduce SO2 emissions by 90%. These scrubbers are now fully 
operational. Compliance with the SO2 emission limit in the 
1991 visibility FIP is determined on a plant-wide annual rolling 
average basis. See 40 CFR 52.145.

IV. Summary of FIP Provisions

A. Proposed FIP Standards

    1. EPA is proposing to limit particulate matter at 0.060 pounds per 
million british thermal units (lbs/MMbtu), determined by averaging the 
results of at least three sampling runs, each at minimum 60 minutes in 
duration, each collecting a minimum sample of 30 dry standard cubic 
feet, on a plant-wide basis. The Arizona particulate emissions standard 
was changed from 17.0 Q \0.4320\ pounds per hour (where Q is million 
BTU per hour) to 0.060 pounds per million BTU because this standard is 
a generally recognized form for the particulate standard and it is more 
reliably measured.\3\
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    \3\ Using EPA Region 9's policy of conducting emissions tests at 
90 percent to 100 percent of the facility's full load, the original 
equation in the Arizona State Implementation Plan (SIP) yields 
estimated allowable emissions of between 0.057 and 0.061 pounds per 
million BTU. Thus, a limit of 0.060 lb/MMbtu is appropriate.
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    The FIP we are proposing specifically states that the particulate 
standard will be measured on a plant-wide basis. Although the Arizona 
permit did not state this explicitly, this was the way that Arizona 
determined compliance at the NGS historically.
    2. Opacity from each unit is limited to 20% averaged over any 
normal six (6) minute period, excluding condensed water vapor, and 40% 
opacity, averaged over six (6) minutes, during absorber upset 
transition periods. The proposed opacity standard specifically excludes 
condensed water vapor. NGS has opacity monitors on each of its stacks; 
condensed water vapor, which will be present in all stacks because of 
the SO2 scrubbers, causes inaccurate excess emission 
readings on the opacity monitors. Therefore, excess opacity due to 
condensed water vapor in the stack does not constitute a reportable 
exceedance.
    3. SO2 emissions are limited to 1 lb/MMbtu averaged over 
a three-hour period, on a plant-wide basis.\4\ The method of compliance 
determination has been changed from one based on the sulfur content of 
coal to one based on continuous emission monitoring (CEM). We are 
making this change not only because the facility has experienced 
difficulty with the analysis of the sulfur content of coal, but because 
the Federal acid rain regulations require CEM monitoring, which is 
generally recognized as being more accurate and precise than monitoring 
the sulfur content of coal.
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    \4\ This emissions limit for SO2 was previously 
established in the Arizona State Implementation Plan.
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    NGS previously complied with the limit of 1 lb/MMbtu on a per-unit 
basis by using very low sulfur coal. Because NGS has now installed 
scrubbers to comply with the 1991 visibility FIP, however, NGS will be 
able to comply with its short-term limits by removing sulfur from the 
exhaust stream. This will allow NGS to purchase slightly higher sulfur 
coal; additionally, the plant-wide average allows one scrubber to be 
down for periodic maintenance (lasting usually 30 to 40 days) without 
requiring the purchase of specific low sulfur coal for use during the 
maintenance. Nevertheless, the actual SO2 emissions from NGS 
will remain 90% lower on an annual basis than they were before the 
scrubbers were installed to comply with the 1991 visibility FIP. To 
ensure, however, that NGS continues to meet this limit, we are 
proposing to include the 1 lb/MMbtu 3 hour average limit in today's 
FIP. With the scrubbers in place, the plantwide hourly

[[Page 53642]]

emissions (tons per hour) will always be less than under the prior 
state limit, since at least one unit with its scrubber operating and 
removing SO2 will be needed to meet the plantwide 
SO2 three hour limit.
    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. NGS is required to submit 
a description of the dust control measures.

B. Other Requirements

    All periods of excess emissions are violations of the emission 
limitation. This rule does, however, provide NGS with an affirmative 
defense to enforcement actions for penalties brought for excess 
emissions that arise during certain startup, shutdown, and malfunction 
episodes. As explained in EPA's excess emissions policy \5\, 
affirmative defenses must be restricted to malfunctions that are 
sudden, unavoidable, and unpredictable. In addition, NGS must have 
taken all possible steps to minimize excess emissions. This rule 
accordingly requires an owner or operator to meet several conditions to 
qualify for an affirmative defense. An affirmative defense is not 
available to NGS if, during the period of excess emissions, there was 
an exceedance of the relevant ambient air quality standard that could 
be attributed to NGS.
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    \5\ ``State Implementation Plans: Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown'' (September 
20, 1999)(the Excess Emissions Policy).
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C. Compliance Schedule

    EPA proposes that the requirements contained in this proposal 
become effective upon final promulgation of these regulations.

V. Other Requirements for NGS

A. Visibility FIP

    Under the 1991 visibility FIP, SO2 emissions are limited 
to 0.1 lb/MMbtu on a plant-wide (all units, either in operation or not) 
rolling annual basis. NGS installed scrubbers, operable on all three 
units, by February 1999.
    The SO2 scrubbers substantially lower the SO2 
emissions from NGS. When the scrubbers are operating, SO2 
emissions are less than 0.1 lbs/MMbtu. However, we note that compliance 
with the SO2 emission limits is determined based on an 
annual average, as this was determined to be protective of visibility 
in the Grand Canyon. These provisions are not being amended or changed 
by today's action.

B. Acid Rain Program Requirements

    NGS is subject to the Federal Acid Rain requirements under title IV 
of the Clean Air Act. NGS elected to comply early as a Phase I 
NOX facility which means NGS currently has a NOX 
limit of 0.45 lbs/MMbtu, per unit, on an annual basis. This limit 
applies until 2008, when it will be lowered to 0.40 lbs/MMbtu.

VI. Solicitation of Comments

    The EPA solicits comments on all aspects of today's proposal to 
promulgate a FIP to regulate air emissions from NGS. 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.

VII. 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 to assess 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 Navajo 
Generating Station proposed 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)(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

[[Page 53643]]

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 NGS 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 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 NGS. Accordingly, 
the requirements of section 3(b) of Executive Order 13175 do not apply 
to this rule. As discussed above, EPA worked closely with 
representatives of the Tribe during the development of today's proposed 
action.

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 (VCS) 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.
    EPA Performance Specification 1 (see 40 CFR part 60, Appendix B) 
for the opacity monitoring for this facility is a consensus standard. 
It was promulgated on August 10, 2000.
    With 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

[[Page 53644]]

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 5 or 17.
    Opacity--EPA Method 9 and Performance Specification Test 1 for 
Opacity Monitoring.
    SO2--EPA Method 6C and Performance Specification 2 for Continuous 
SO2 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.  49.20 to read 
as follows:


Sec.  49.20  Federal Implementation Plan Provisions for Navajo 
Generating Station, Navajo Nation.

    (a) Applicability. The provisions of this section shall apply to 
each owner or operator of the fossil fuel-fired, steam-generating 
equipment designated as Units 1, 2, and 3, and the two auxiliary steam 
boilers at the Navajo Generating Station (NGS) on the Navajo Nation 
located in the Northern Arizona Intrastate Air Quality Control Region 
(see 40 CFR 81.270).
    (b) Compliance Dates. Compliance with the requirements of this 
section is required upon the effective date of this section.
    (c) Definitions. For the purposes of this section:
    (1) Absorber upset transition period means the 24-hour period 
following an upset of an SO2 absorber mode.
    (2) 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. This rule provides an affirmative defense to 
actions for penalties brought for excess emissions that arise during 
certain malfunction episodes.
    (3) 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. 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.
    (4) Owner or Operator means any person who owns, leases, operates, 
controls or supervises the NGS, any of the fossil fuel-fired, steam-
generating equipment at the NGS, or the auxiliary steam boilers at the 
NGS.
    (5) Plant-wide means a weighted average of particulate matter and 
SO2 emissions for Units 1, 2, and 3 based on the heat input 
to each unit as determined by 40 CFR part 75.
    (6) Point source means any crusher, any conveyor belt transfer 
point, any pneumatic material transferring, any baghouse or other 
control devices used to capture dust emissions from loading and 
unloading, and any other stationary point of dust that may be observed 
in conformance with Method 9 (excluding stockpiles).
    (7) Regional Administrator means the Regional Administrator of the 
Environmental Protection Agency Region 9 or his/her authorized 
representative.
    (8) Startup shall mean the period from start of fires in the boiler 
with fuel oil, to the time when the electrostatic precipitator is 
sufficiently heated such that the temperature of the air preheater 
inlet reaches 400 degrees Fahrenheit and startup ends when a unit 
reaches 300 MW net load. Proper startup procedures shall include 
energizing the electrostatic precipitator prior to the combustion of 
coal in the boiler. This rule provides an affirmative defense to 
actions for penalties brought for excess emissions that arise during 
startup 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.
    (9) Shutdown shall be the period from cessation of coal fires in 
the boiler until the electrostatic precipitator is de-energized. 
Shutdown begins when the unit drops below 300 MW net load with the 
intent to remove the unit from service. The precipitator shall be 
maintained in service until boiler fans are disengaged. This rule 
provides an affirmative defense to actions for penalties brought for 
excess emissions that arise during shutdown 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.
    (10) Oxides of nitrogen (NOX) means the sum of nitrogen 
oxide (NO) and nitrogen dioxide (NO2) in the flue gas, 
expressed as nitrogen dioxide.
    (d) Emissions Limitations and Control Measures.
    (1) Sulfur Oxides. No owner or operator shall discharge or cause 
the discharge of sulfur oxides into the atmosphere from Units 1, 2 or 3 
in excess of 1.0 pound per million British thermal units (lb/MMBtu) 
averaged over any three (3) hour period, on a plant-wide basis.
    (2) Particulate Matter. No owner or operator shall discharge or 
cause the discharge of particulate matter into the atmosphere in excess 
of 0.060 lb/MMBtu, 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, on a plant-wide basis.
    (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 these regulations 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, truck loading or unloading operation, or railcar unloading 
station.
    (4) Opacity. No owner or operator shall discharge or cause the 
discharge of emissions from the stacks of Units 1, 2, or 3 into the 
atmosphere exhibiting greater than 20% opacity, excluding condensed 
water vapor, averaged over any normal six (6) minute period and 40% 
opacity, averaged over six (6) minutes, during absorber upset 
transition periods.
    (e) Testing and Monitoring. (1) Effective sixty (60) days after 
promulgation of this section, the owner or operator shall maintain and 
operate Continuous Emissions Monitoring Systems (CEMS) for 
NOX and SO2 and Continuous Opacity Monitoring 
Systems (COMS) on Units 1,2, and 3 in

[[Page 53645]]

accordance with 40 CFR 60.8 and 60.13(e), (f), and (h), and Appendix B 
of Part 60. The owner or operator shall comply with the quality 
assurance procedures for CEMS and COMS found in 40 CFR part 75, or 40 
CFR part 60, whichever is more stringent.
    (2) The owner or operator shall conduct annual mass emissions tests 
for particulate matter on Units 1, 2, and 3, operating at rated 
capacity, using coal that is representative of that normally used. The 
tests shall be conducted using the appropriate test methods in 40 CFR 
part 60, Appendix A.
    (3) Within 90 days after promulgation of this section, the owner or 
operator shall conduct initial mass emissions tests for sulfur dioxide, 
nitrogen oxides and particulate matter on the two auxiliary steam 
boilers, operating at rated capacity, using oil that is representative 
of that normally used. Thereafter, the tests shall be conducted 
annually from the promulgation date of this rule or after 720 hours of 
operation, whichever is later. The tests shall be conducted using the 
appropriate test methods in 40 CFR part 60, Appendix A. For particulate 
matter, testing shall consist 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.
    (4) 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.
    (5) All emissions testing and monitor evaluation required pursuant 
to this section shall be conducted in accordance with the appropriate 
method found in 40 CFR part 60, Appendices A and B.
    (6) The owner or operator shall install, maintain and operate 
ambient monitors at Glen Canyon Dam for particulate matter 
(PM2.5 and PM10), nitrogen dioxide, sulfur 
dioxide, and ozone. Operation, calibration and maintenance of the 
monitors shall be performed in accordance with 40 CFR part 58, 
manufacturer's specification, and ``Quality Assurance Handbook for Air 
Pollution Measurements Systems'', Volume II, U.S. EPA as applicable to 
single station monitors. Data obtained from the monitors shall be 
reported annually to the Regional Administrator. All particulate matter 
samplers shall operate at least once every six days, coinciding with 
the national particulate sampling schedule.
    (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. 7413, and 
enforce against any violation of the Clean Air Act or 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 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 limitations in this section the owner or operator shall:
    (1) Comply with the notification and recordkeeping requirements for 
testing found in 40 CFR 60.7. All data/reports of testing results shall 
be submitted to the Regional Administrator and postmarked within 60 
days of testing.
    (2) For excess emissions, 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. 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 Region 
9, 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. A complete written 
report of the incident shall be submitted to the Regional Administrator 
within ten (10) working days after the event. This notification shall 
include the following information:
    (i) The identity of the stack and/or other emissions points where 
excess emissions occurred;
    (ii) 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;
    (iii) The time and duration or expected duration of the excess 
emissions;
    (iv) The identity of the equipment causing the excess emissions;
    (v) The nature and cause of such excess emissions;
    (vi) 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; and
    (vii) The steps that were taken or are being taken to limit excess 
emissions.
    (3) Notify the Regional Administrator verbally within one business 
day of determination that an exceedance of the NAAQS has been measured 
by a monitor operated in accordance with this regulation. The 
notification to the Regional Administrator shall include the time, 
date, and location of the exceedance, and the pollutant and 
concentration of the exceedance. The verbal notification shall be 
followed within fifteen (15) days by a letter containing the following 
information:
    (i) The time, date, and location of the exceedance;
    (ii) The pollutant and concentration of the exceedance;
    (iii) The meteorological conditions existing 24 hours prior to and 
during the exceedance;
    (iv) For a particulate matter exceedance, the 6-minute average 
opacity monitoring data greater than 20% for the 24 hours prior to and 
during the exceedance; and
    (v) Proposed plant changes such as operation or maintenance, if 
any, to prevent future exceedances. Compliance with this paragraph 
(f)(3)(v) 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.
    (4) Submit quarterly excess emissions reports for sulfur dioxide 
and opacity as recorded by CEMS and COMS together with a CEMS data 
assessment report to the Regional Administrator no later than 30 days 
after each calendar quarter. The owner or operator shall complete the 
excess emissions reports according to the procedures in 40 CFR 60.7(c) 
and (d) and include the Quality Assurance assessment of Appendix F of 
part 60. Excess opacity due to condensed water vapor in the stack does 
not constitute a reportable exceedance, however, the length of time 
during which water vapor interfered with COMs readings should be 
summarized in the Sec.  60.7(c) report.
    (g) Compliance Certifications. Notwithstanding any other provision 
in this implementation plan, the owner or operator may use any credible 
evidence or information relevant to whether a source would have been in 
compliance with applicable requirements if the appropriate performance 
or compliance test had been performed, for the purpose of submitting 
compliance certifications.
    (h) Equipment Operations. The owner or operator shall operate all 
equipment

[[Page 53646]]

or systems needed to comply with this section in accordance with 40 CFR 
60.11(d) and consistent with good engineering practices to keep 
emissions at or below the emissions limitations in this section, and 
following outages of any control equipment or systems the control 
equipment or system will be returned to full operation as expeditiously 
as practicable.
    (i) Enforcement. (1) Notwithstanding any other provision in this 
implementation plan, any credible evidence or information relevant to 
whether a source 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 a person has 
violated or is in violation of any standard in the plan.
    (2) During periods of start-up 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 and did not 
result from inadequate design or construction of the process or air 
pollution control equipment;
    (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 immediately taken 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. E6-15086 Filed 9-11-06; 8:45 am]

BILLING CODE 6560-50-P
