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25698 Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Rules and Regulations 

(b) [Reserved] 

Dated: April 26, 2007. 

Peter J. Probasco, 

Acting Chair, Federal Subsistence Board. 

Dated: April 26, 2007. 

Steve Kessler, 

Subsistence Program Leader, USDA—Forest 

Service. 

[FR Doc. 07–2205 Filed 5–4–07; 8:45 am] 

BILLING CODE 3410–11–P; 4310–55–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R09–OAR–2006–0184; FRL–8308–6] 

RIN 2009–AA01 

Source-Specific Federal 

Implementation Plan for Four Corners 

Power Plant; Navajo Nation 

AGENCY: Environmental Protection 


Agency. 


ACTION: Final rule. 


SUMMARY: The Environmental Protection 

Agency (EPA) is promulgating a sourcespecific 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 coalfired 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 sourcespecific 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 

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Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Rules and Regulations 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 

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 

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, 

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. 

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 AstarisIdaho 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. 

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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 

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.’’ 

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-bycase 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 

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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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 sourcespecific 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 complianceassuring 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 

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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 

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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 

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implications and pre-empts tribal law 

unless EPA consults with tribal officials 

early in the process of developing the 

proposed regulation and prepares a 

tribal summary impact statement. 

EPA has concluded that this final rule 

may have tribal implications because it 

will impose federally enforceable 

emissions limitation on a major 

stationary source located and operating 

on the Navajo reservation. However, this 

final rule will neither impose 

substantial direct compliance costs on 

tribal governments nor pre-empt Tribal 

law because the final FIP imposes 

obligations only on the owner or 

operator of FCPP. 

EPA has also consulted extensively 

with officials of the Navajo Nation in 

the process of developing this 

regulation. EPA had discussions with 

Tribal representatives during proposal 

of the FIP in 1999. By letter dated 

December 5, 2005, the Navajo Nation 

EPA supported the action taken in this 

FIP. Tribal officials attended the public 

information workshop and public 

hearing on the proposed FIP. Therefore, 

EPA has allowed Navajo Nation to 

provide meaningful and timely input 

into development of this FIP. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule also is not subject to 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it approves a 

state rule implementing a Federal 

standard. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Pub L. 104–113, 

12 (10) (15 U.S.C. 272 note) directs EPA 

to use voluntary consensus standards 

(VCS) in its regulatory activities unless 

to do so would be inconsistent with 

applicable law or otherwise impractical. 

VCS are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures and business 

practices) that are developed or adopted 

by the VCS bodies. The NTTAA directs 

EPA to provide Congress, through 

annual reports to OMB, with 

explanations when the Agency decides 

not to use available and applicable VCS. 

Consistent with the NTTAA, the 

Agency conducted a search to identify 

potentially applicable VCS. For the 

measurement of the sulfur in the coal 

for calculating the efficiency of the SO2 

scrubbers for FCCP, EPA proposes to 

require use of ASTM standards. FCCP 

would have the ability to choose an 

applicable ASTM standard for both the 

coal sample collection and the sulfur in 

coal analysis. 

In regard to the remaining 

measurement needs as listed below, 

there are a number of VCS that appear 

to have possible use in lieu of the EPA 

test methods and performance 

specifications (40 CFR Part 60, 

Appendices A and B) noted next to the 

measurement requirements. It would 

not be practical to specify these 

standards in the current rulemaking due 

to a lack of sufficient data on 

equivalency and validation and because 

some are still under development. 

However, EPA’s Office of Air Quality 

Planning and Standards is in the 

process of reviewing all available VCS 

for incorporation by reference into the 

test methods and performance 

specifications of 40 CFR Part 60, 

Appendices A and B. Any VCS so 

incorporated in a specified test method 

or performance specification would 

then be available for use in determining 

the emissions from this facility. This 

will be an ongoing process designed to 

incorporate suitable VCS as they 

become available. 

Particulate Matter Emissions—EPA 

Methods 1 though 5 

Opacity—EPA Method 9 and 

Performance Specification Test 1 for 

Opacity Monitoring 

SO2—EPA Method 6C and 

Performance Specification 2 for 

Continuous SO2 Monitoring 

NOX—EPA Method 7E and 

Performance Specification 2 for 

Continuous NOX Monitoring. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994), establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it 

strengthens the level of protection 

provided to human health or the 

environment. This final rule requires 

emissions reductions and makes 

emissions limitations federally 

enforceable for a major stationary 

source. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. section 804(2). This 

rule will be effective June 6, 2007. 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by July 6, 2007. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

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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 Federal Implementation Plan 

Provisions for Four Corners Power Plant, 

Navajo Nation. 

(a) Applicability. The provisions of 

this section shall apply to each owner 

or operator of the coal burning 

equipment designated as Units 1, 2, 3, 

4, and 5 at the Four Corners Power Plant 

(the Plant) on the Navajo Nation Indian 

Reservation located in the Four Corners 

Interstate Air Quality Control Region 

(see 40 CFR 81.121). 

(b) Compliance Dates. Compliance 

with the requirements of this section is 

required upon the effective date of this 

rule unless otherwise indicated by 

compliance dates contained in specific 

provisions. 

(c) Definitions. For the purposes of 

this section: 

(1) Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or defense put forward by a 

defendant, regarding which the 

defendant has the burden of proof, and 

the merits of which are independently 

and objectively evaluated in a judicial 

or administrative proceeding. 

(2) Air pollution control equipment 

includes baghouses, particulate or 

gaseous scrubbers, and any other 

apparatus utilized to control emissions 

of regulated air contaminants which 

would be emitted to the atmosphere. 

(3) Business Day. Business day means 

a normal working day, excluding 

weekends and Federal Holidays. 

(4) Daily average means the arithmetic 

average of the hourly values measured 

in a 24-hour period. 

(5) Excess emissions means the 

emissions of air contaminants in excess 

of an applicable emissions limitation or 

requirement. 

(6) Heat input means heat derived 

from combustion of fuel in a Unit and 

does not include the heat input from 

preheated combustion air, recirculated 

flue gases, or exhaust gases from other 

sources. Heat input shall be in 

accordance with 40 CFR Part 75. 

(7) Malfunction means any sudden 

and unavoidable failure of air pollution 

control equipment or process equipment 

or of a process to operate in a normal 

or usual manner. Failures that are 

caused entirely or in part by poor 

maintenance, careless operation, or any 

other preventable upset condition or 

preventable equipment breakdown shall 

not be considered malfunctions. This 

rule provides an affirmative defense to 

actions for penalties brought for excess 

emissions that arise during certain 

malfunction episodes. An affirmative 

defense is not available if during the 

period of excess emissions, there was an 

exceedance of the relevant ambient air 

quality standard that could be attributed 

to the emitting source. 

(8) Owner or Operator means any 

person who owns, leases, operates, 

controls, or supervises the Plant or any 

of the coal burning equipment 

designated as Units 1, 2, 3, 4, or 5 at the 

Plant. 

(9) Oxides of nitrogen (NOX) means 

the sum of nitric oxide (NO) and 

nitrogen dioxide (NO2) in the flue gas, 

expressed as nitrogen dioxide. 

(10) Plant-wide basis means total 

stack emissions of any particular 

pollutant from all coal burning 

equipment at the Plant. 

(11) Regional Administrator means 

the Regional Administrator of the 

Environmental Protection Agency (EPA) 

Region 9 or his/her authorized 

representative. 

(12) Shutdown means the cessation of 

operation of any air pollution control 

equipment, process equipment, or 

process for any purpose. Specifically, 

for Units 1, 2, or 3, shutdown begins 

when the unit drops below 40 MW net 

load with the intent to remove the unit 

from service. For Units 4 or 5, shutdown 

begins when the unit drops below 300 

MW net load with the intent to remove 

the unit from service. 

(13) Startup means the setting into 

operation of any air pollution control 

equipment, process equipment, or 

process for any purpose. Specifically, 

for Units 1, 2, or 3, startup ends when 

the unit reaches 40 MW net load. For 

Units 4 or 5, startup ends when the unit 

reaches 400 MW net load. 

(14) 24-hour period means the period 

of time between 12:01 a.m. and 12 

midnight. 

(d) Emissions Standards and Control 

Measures—(1) Sulfur Dioxide. No owner 

or operator shall discharge or cause the 

discharge of sulfur dioxide (SO2) into 

the atmosphere in excess of: 

(i) 12.0 percent of the potential 

combustion concentration assuming all 

of the sulfur in the coal is converted to 

SO2. This percent emitted is determined 

by a daily calculation of the plantwide 

heatinput weighted annual average. 

(ii) 17,900 pounds of total SO2 

emissions per hour averaged over any 

consecutive three (3) hour period, 

determined on a plant-wide basis. 

(2) Particulate Matter. No owner or 

operator shall discharge or cause the 

discharge of particulate matter from any 

coal burning equipment into the 

atmosphere in excess of 0.050 pounds 

per million British thermal unit (lb/ 

MMBtu) of heat input (higher heating 

value), as averaged from three sampling 

runs, each at 60 minutes in duration, 

each collecting a minimum sample of 30 

dry standard cubic feet. 

(3) Dust. Each owner or operator shall 

operate and maintain the existing dust 

suppression methods for controlling 

dust from the coal handling and storage 

facilities. Within ninety (90) days after 

promulgation of this section, the owner 

or operator shall submit to the Regional 

Administrator a description of the dust 

suppression methods for controlling 

dust from the coal handling and storage 

facilities, flyash handling and storage, 

and road sweeping activities. Within 

548 days of promulgation of this section 

each owner or operator shall not emit 

dust with an opacity greater than 20 

percent from any crusher, grinding mill, 

screening operation, belt conveyor, or 

truck loading or unloading operation. 

(4) Opacity. No owner or operator 

shall discharge or cause the discharge of 

emissions from the stacks of Units 4 and 

5 into the atmosphere exhibiting greater 

than 20% opacity, excluding 

uncombined water droplets, averaged 

over any six (6) minute period, except 

for one six (6) minute period per hour 

of not more than 27% opacity. 

(5) Oxides of nitrogen. No owner or 

operator shall discharge or cause the 

discharge of NOX into the atmosphere. 

(i) From either Unit 1 or 2 in excess 

of 0.85 lb/MMBtu of heat input per unit, 

and from either Units 3, 4, or 5 in excess 

of 0.65 lb/MMBtu of heat input per unit 

averaged over any successive thirty (30) 

boiler operating day period; 

(ii) In excess of 335,000 lb per 24-hour 

period when coal burning equipment is 

operating, on a plant-wide basis; for 

each hour when coal burning equipment 

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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: 

n m 

TE = ∑ ∑(Eij × Hi j) i=1 j=1 

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 

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Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Rules and Regulations 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 plantwide 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 onehour 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 

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25708 Federal Register / Vol. 72, No. 87 / Monday, May 7, 2007 / Rules and Regulations 

(viii) A description of any variances 

from the test method. 

(4) Excess Emissions Report. (i) For 

excess emissions (except in the case of 

saturated stack conditions), the owner 

or operator shall notify the Navajo 

Environmental Protection Agency 

Director and the U.S. Environmental 

Protection Agency Regional 

Administrator by telephone or in 

writing within one business day (initial 

notification). A complete written report 

of the incident shall be submitted to the 

Navajo Environmental Protection 

Agency Director and the U.S. 

Environmental Protection Agency 

Regional Administrator within ten (10) 

working days of the initial notification. 

This notification should be sent to the 

Director, Navajo Environmental 

Protection Agency, by mail to: P.O. Box 

339, Window Rock, Arizona 86515, or 

by facsimile to: (928) 871–7996 

(facsimile), and to the Regional 

Administrator, U.S. Environmental 

Protection Agency, by mail to the 

attention of Mail Code: AIR–5, at 75 

Hawthorne Street, San Francisco, 

California 94105, by facsimile to: (415) 

947–3579 (facsimile), or by e-mail to: 

r9.aeo@epa.gov. The complete written 

report shall include: 

(A) The name and title of the person 

reporting; 

(B) The identity and location of the 

Plant and Unit(s) involved, and the 

emissions point(s), including bypass, 

from which the excess emissions 

occurred or are occurring; 

(C) The time and duration or expected 

duration of the excess emissions; 

(D) The magnitude of the excess 

emissions expressed in the units of the 

applicable emissions limitation and the 

operating data and calculations used in 

determining the magnitude of the excess 

emissions; 

(E) The nature of the condition 

causing the excess emissions and the 

reasons why excess emissions occurred 

or are occurring; 

(F) If the excess emissions were the 

result of a malfunction, the steps taken 

to remedy the malfunction and the steps 

taken or planned to prevent the 

recurrence of such malfunction; 

(G) For an opacity exceedance, the 6-

minute average opacity monitoring data 

greater than 20 percent for the 24 hours 

prior to and during the exceedance for 

Units 4 and 5; and 

(H) The efforts taken or being taken to 

minimize the excess emissions and to 

repair or otherwise bring the Plant into 

compliance with the applicable 

emissions limit(s) or other requirements. 

For this reporting requirement, excess 

opacity due to saturated stack 

conditions is exempted. 

(ii) If the period of excess emissions 

extends beyond the submittal of the 

written report, the owner or operator 

shall also notify the Regional 

Administrator in writing of the exact 

time and date when the excess 

emissions stopped. Compliance with the 

excess emissions notification provisions 

of this section shall not excuse or 

otherwise constitute a defense to any 

violations of this section or of any law 

or regulation which such excess 

emissions or malfunction may cause. 

(g) Equipment Operations. At all 

times, including periods of startup, 

shutdown, and malfunction, the owner 

or operator shall, to the extent 

practicable, maintain and operate the 

Plant including associated air pollution 

control equipment in a manner 

consistent with good air pollution 

control practices for minimizing 

emissions. Determination of whether 

acceptable operating and maintenance 

procedures are being used will be based 

on information available to the Regional 

Administrator which may include, but 

is not limited to, monitoring results, 

opacity observations, review of 

operating and maintenance procedures, 

and inspection of the Plant. With regard 

to the operation of the baghouses on 

Units 4 and 5, placing the baghouses in 

service before coal fires are initiated 

will constitute compliance with this 

paragraph. (If the baghouse inlet 

temperature cannot achieve 185 degrees 

Fahrenheit using only gas fires, the 

owner or operator will not be expected 

to place baghouses in service before coal 

fires are initiated; however, the owner 

or operator will remain subject to the 

requirements of this paragraph.) 

(h) Enforcement. (1) Notwithstanding 

any other provision in this 

implementation plan, any credible 

evidence or information relevant to 

whether the Plant would have been in 

compliance with applicable 

requirements if the appropriate 

performance or compliance test had 

been performed, can be used to establish 

whether or not the owner or operator 

has violated or is in violation of any 

standard in the plan. 

(2) During periods of startup and 

shutdown the otherwise applicable 

emission limits or requirements for 

opacity and particulate matter shall not 

apply provided that: 

(i) At all times the facility is operated 

in a manner consistent with good 

practice for minimizing emissions, and 

the owner or operator uses best efforts 

regarding planning, design, and 

operating procedures to meet the 

otherwise applicable emission limit; 

(ii) The frequency and duration of 

operation in start-up or shutdown mode 

are minimized to the maximum extent 

practicable; and 

(iii) The owner or operator’s actions 

during start-up and shutdown periods 

are documented by properly signed, 

contemporaneous operating logs, or 

other relevant evidence. 

(3) Emissions in excess of the level of 

the applicable emission limit or 

requirement that occur due to a 

malfunction shall constitute a violation 

of the applicable emission limit. 

However, it shall be an affirmative 

defense in an enforcement action 

seeking penalties if the owner or 

operator has met with all of the 

following conditions: 

(i) The malfunction was the result of 

a sudden and unavoidable failure of 

process or air pollution control 

equipment or of a process to operate in 

a normal or usual manner; 

(ii) The malfunction did not result 

from operator error or neglect, or from 

improper operation or maintenance 

procedures; 

(iii) The excess emissions were not 

part of a recurring pattern indicative of 

inadequate design, operation, or 

maintenance; 

(iv) Steps were taken in an 

expeditious fashion to correct 

conditions leading to the malfunction, 

and the amount and duration of the 

excess emissions caused by the 

malfunction were minimized to the 

maximum extent practicable; 

(v) All possible steps were taken to 

minimize the impact of the excess 

emissions on ambient air quality; 

(vi) All emissions monitoring systems 

were kept in operation if at all possible; 

and 

(vii) The owner or operator’s actions 

in response to the excess emissions 

were documented by properly signed, 

contemporaneous operating logs, or 

other relevant evidence. 

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

BILLING CODE 6560–50–P