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###### Environmental Protection Agency

          - 40 CFR Part 49 
          - [EPA-R09-OAR-2006-0184; FRL-8308-6] 
          - RIN 2009-AA01 

# AGENCY:

Environmental Protection Agency. 

# ACTION:

Final rule. 

# 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 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                           ( print 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.”                

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.                           ( print 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] 

                    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      ( print 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.                 

                    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                           ( print 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                           ( print 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                           ( print 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                 

*SO*2                    —EPA Method 6C and Performance Specification 2 for Continuous SO2                     Monitoring                 

*NO*X                    —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                           ( print 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. 

Title 40, chapter I of the Code of Federal Regulations is 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. Section 49.23 is added to read as follows: 

§ 49.23 

                            (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 (NO*X*)*                             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                                   ( print 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 × 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:                         

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                                   ( print 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                                   ( print 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. 

# Footnotes

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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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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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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[FR Doc. E7-8530  Filed 5-4-07; 8:45 am]

BILLING CODE 6560-50-P