86988 Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Proposed Rules 

docket without change; this information 

will be available online at http://

www.regulations.gov. Therefore, the 

Agency cautions commenters about 

submitting information they do not 

want made available to the public, or 

submitting comments that contain 

personal information (either about 

themselves or others) such as Social 

Security numbers, birth dates, and 

medical data. 

OSHA requests comments on all 

issues related to this proposed rule, 

including whether these revisions will 

have any economic, paperwork, or other 

regulatory impacts on the regulated 

community. 

Docket. To read or download 

submissions or other material in the 

docket (including material referenced in 

the preamble), go to http://

www.regulations.gov, or contact the 

OSHA Docket Office at the address 

listed above. While the Agency lists all 

documents in the docket in the http:// 

www.regulations.gov index, some 

information (e.g., copyrighted material) 

is not publicly available to read or 

download through this Web site. All 

submissions, including copyrighted 

material, are accessible at the OSHA 

Docket Office. Contact the OSHA Docket 

Office for assistance in locating docket 

submissions. 

FOR FURTHER INFORMATION CONTACT: 

Press inquiries. Frank Meilinger, 

Director, OSHA Office of 

Communications, Room N–3647, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Washington, DC 20210; 

telephone: (202) 693–1999; email: 

meilinger.francis2@dol.gov. 

General and technical information. 

Blake Skogland, Office of Construction 

Standards and Guidance, OSHA 

Directorate of Construction, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Room N–3468, 

Washington, DC 20210; telephone: (202) 

693–2020; fax: (202) 693–1689; email: 

skogland.blake@dol.gov. 

Copies of this Federal Register notice. 

Electronic copies are available at http:// 

www.regulations.gov. This Federal 

Register notice, as well as news releases 

and other relevant information, also are 

available at OSHA’s Web page at http:// 

www.osha.gov. 

SUPPLEMENTARY INFORMATION: 

I. Extension of the Comment Period 

On October 4, 2016, at 81 FR 68504, 

OSHA published a Notice of Proposed 

Rulemaking (NPRM) titled ‘‘Standards 

Improvement Project-Phase IV.’’ In this 

NPRM, OSHA continues its efforts to 

remove or revise outdated, duplicative, 

unnecessary, and inconsistent 

requirements in its safety and health 

standards by proposing 18 revisions to 

existing standards in its recordkeeping, 

general industry, maritime, and 

construction standards, with most of the 

revisions to its construction standards. 

The NPRM provides an explanation of 

the rule and its economic analysis, and 

solicits comments from the public 

regarding the contents of the proposal. 

The period for submitting comments 

was to expire on December 5, 2016. 

However, two stakeholders have 

requested an extension of 45 days for 

submitting written comments and 

information. Both stakeholders noted 

that the NPRM addresses 18 separate 

standards that each require separate 

analysis of the proposed changes. 

OSHA believes that a 30 day 

extension is sufficient to facilitate the 

submission of thorough reviews and 

provide OSHA with a complete record 

for this proposed rule so that OSHA has 

all the information needed to develop a 

final rule. Accordingly, OSHA extends 

the comment period by 30 days, and 

written comments must be submitted by 

January 4, 2017. 

II. Submission of Comments and Access 

to the Docket 

OSHA invites comments on the 

proposed revisions described, and the 

specific issues raised, in the NPRM. 

These comments should include 

supporting information and data. OSHA 

will carefully review and evaluate these 

comments, information, and data, as 

well as any other information in the 

rulemaking record, to determine how to 

proceed. When submitting comments, 

parties must follow the procedures 

specified in the previous sections titled 

DATES and ADDRESSES. The comments 

must provide the name of the 

commenter and docket number (OSHA– 

2012–0007). The comments also should 

identify clearly the provision of the 

proposal each comment is addressing, 

the position taken with respect to the 

proposed provision or issue, and the 

basis for that position. Comments, along 

with supporting data and references, 

submitted on or before the end of the 

specified comment period will become 

part of the proceedings record, and will 

be available for public inspection and 

copying at http://www.regulations.gov. 

Authority and Signature 

David Michaels, Ph.D., MPH, 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, authorized the 

preparation of this notice pursuant to 

Sections 4, 6, and 8 of the Occupational 

Safety and Health Act of 1970 (29 U.S.C. 

653, 655, 657), 29 CFR part 1911, and 

Secretary’s Order 1–2012 (77 FR 3912). 

Signed at Washington, DC, on November 

28, 2016. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

[FR Doc. 2016–28924 Filed 12–1–16; 8:45 am] 

BILLING CODE 4510–26–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R09–OAR–2016–0339; FRL–9955–92– 

Region 9] 

Revisions to the Source-Specific 

Federal Implementation Plan for Four 

Corners Power Plant, Navajo Nation 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing limited 

revisions to the source-specific Federal 

Implementation Plan (FIP) that was 

promulgated to regulate air pollutant 

emissions from the Four Corners Power 

Plant (FCPP), a coal-fired power plant 

located on the reservation lands of the 

Navajo Nation, near Farmington, New 

Mexico. These limited revisions propose 

to make certain provisions of the FIP 

consistent with national actions and 

rulemakings promulgated since 2012; 

update the FIP to reflect recent 

operating changes; and add new 

provisions to the FIP to include the air 

pollution control requirements for FCPP 

of a Consent Decree entered in the 

United States District Court for the 

District of New Mexico on August 17, 

2015. 

DATES: Any comments on this proposal 

must arrive by January 3, 2017. 

ADDRESSES: Submit your comments, 

identified by Docket ID number EPA– 

R09–OAR–2016–0339, at http://

www.regulations.gov, or via email to 

lee.anita@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, the EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 


jstallworth on DSK7TPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Proposed Rules 86989 

1See 72 FR 25698 (May 7, 2007) and 77 FR 51620 

(August 24, 2012). 2See Consent Decree for Dine CARE v. Arizona 

Public Service Company and EPA v. Arizona Public 

Service Company, US District Court for the District 

of New Mexico, Case No. 1:11–cv–00889–JB–SCY 

(August 17, 2015). 

3See 72 FR 25705 (May 7, 2007) and 40 CFR 

49.5512(h)(2) and (h)(3), and 40 CFR 49.5512(c)(7). 

4See 80 FR 33840 (June 12, 2015). 

5See 77 FR 9303 (February 16, 2012) and 81 FR 

20172 (April 6, 2016) (Final Technical Corrections). 

6See 77 FR 51620 (August 24, 2012) and 40 CFR 

49.5512(i)(3). 

7FCPP is currently co-owned by Arizona Public 

Service, Public Service Company of New Mexico, 

Salt River Project, Tucson Electric Power, and El 

Paso Electric Company. 

8APS retired Units 1–3 (total capacity of 560 

MW) at FCPP in January 2014 as part of a ‘‘better 

than BART’’ alternative it suggested to the EPA. For 

more information on the EPA’s ‘‘better than BART’’ 

determination, please see 77 FR 51620 (August 24, 

2012). 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the Web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the EPA’s full public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit http://

www2.epa.gov/dockets/commentingepa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Anita Lee, EPA Region IX, (415) 972– 

3958, lee.anita@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Background 

A. Action 

B. Facility 

C. Attainment Status 

D. The EPA’s Authority To Promulgate a 

FIP in Indian Country 

E. Historical Overview of FCPP FIP Actions 

II. Basis for Proposed Action 

III. Summary of FIP Revisions 

A. Proposed FIP Revisions 

B. Justification for Proposed FIP Revisions 

C. Compliance Schedule 

IV. Proposed Action and Solicitation of 

Comments 

V. Environmental Justice Considerations 

VI. Administrative Requirements 

A. Executive Order 12866 

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 Executive Order 12875: 

Enhancing the Intergovernmental 

Partnership 

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 

I. Background 

A. Action 

In today’s action, the EPA is 

proposing limited revisions to the FIP 

for FCPP that we promulgated on May 

7, 2007 (‘‘2007 FIP’’) and August 24, 

2012 (‘‘2012 FIP’’).1 The 2007 and 2012 

regulations are codified in the Code of 

Federal Regulations (CFR) at 40 CFR 

49.5512, and we refer collectively to the 

provisions from the 2007 and 2012 

actions as the ‘‘FIP’’ or the ‘‘FCPP FIP.’’ 

The EPA established federally 

enforceable emission limitations for 

particulate matter (PM), sulfur dioxide 

(SO2), oxides of nitrogen (NOX), and 

opacity in the FCPP FIP. 

The EPA is proposing revisions to the 

FIP for several reasons: (1) To make 

certain provisions in the FIP consistent 

with national actions and rulemakings 

promulgated since 2012; (2) to update 

the FIP to reflect recent operating 

changes; and (3) to add new provisions 

to the FIP to include the air pollution 

control requirements for FCPP of a 

Consent Decree (‘‘Consent Decree’’) 

entered in the United States District 

Court for the District of New Mexico on 

August 17, 2015.2

To update the FCPP FIP for 

consistency with national actions and 

rulemakings, we are proposing to 

remove: (1) Emission limit exemptions 

that apply during periods of startup and 

shutdown; (2) a provision allowing for 

an affirmative defense during periods of 

malfunctions; and (3) exemptions for 

water vapor from the opacity standard 

and monitoring and reporting 

requirements.3 These revisions, if 

finalized, would make the FCPP FIP 

consistent with the EPA’s 

interpretations of Clean Air Act (CAA, 

or ‘‘the Act’’) requirements, as reflected 

in the Agency’s recent action 

concerning how provisions in state 

implementation plans (SIPs) treat excess 

emissions during startup, shutdown, 

and malfunctions (‘‘2015 SSM 

Action’’).4

The EPA is also proposing to update 

the testing requirements for PM in the 

FCPP FIP to be consistent with PM 

testing requirements promulgated 

nationally in the Mercury and Air 

Toxics Standards (MATS) Rule.5 The 

revisions to the PM testing 

requirements, if finalized, would 

increase the frequency of PM testing in 

the FIP to match the MATS Rule, allow 

the operator the option to demonstrate 

compliance using alternative methods, 

e.g., PM continuous emission 

monitoring systems (PM CEMS), and 

streamline the existing PM testing 

requirements. 

In order to update the FIP to reflect 

the current operation of FCPP, we are 

proposing to add a statement to the 

applicability section of the FIP to clarify 

that Units 1, 2 and 3 have been 

permanently retired, and to remove 

certain provisions related to Units 1, 2, 

and 3 from the FIP that are no longer 

applicable following the permanent 

retirement of those units. The operator 

of FCPP removed those units from 

service by January 1, 2014 to comply 

with the requirements in the 2012 FIP 

that the EPA promulgated to address the 

Best Available Retrofit Technology 

(BART) provisions of the Regional Haze 

Rule for NOX.6 These revisions, if 

finalized, would enhance regulatory 

clarity by removing requirements that 

apply to emission units that have 

permanently ceased operation. 

The final changes in this proposed 

rulemaking are to add new provisions to 

the FCPP FIP to reflect requirements in 

the Consent Decree. Generally, the 

Consent Decree requires greater 

emission reductions of SO2, NOX, and 

PM by establishing lower emission 

limitations than the existing limitations 

in the FIP for these pollutants. The 

Consent Decree requires the operator of 

the facility to request that the EPA 

amend the FCPP FIP to incorporate the 

requirements and limitations from the 

Consent Decree. These proposed 

revisions, if finalized, would make the 

emission limitations and other 

requirements from the Consent Decree 

federally enforceable. 

B. Facility 

FCPP is a coal-fired power plant 

located on the Navajo Nation Indian 

Reservation, just west of Farmington, 

New Mexico, and it is co-owned by 

several entities and operated by Arizona 

Public Service (APS).7 The facility 

includes two units, Units 4 and 5, each 

with a capacity of 770 megawatts (MW) 

net generation, providing a total 

capacity of 1540 MW.8 Operations at the 

facility produce emissions of air 

pollutants, including SO2, NOX, and 

PM. Existing pollution control 

equipment on Units 4 and 5 include 


jstallworth on DSK7TPTVN1PROD with PROPOSALS
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9See 40 CFR 81.332. 

10See 40 U.S.C. 7601(d). 

11See 40 CFR parts 9, 35, 49, 50 and 81. See also 

63 FR 7254 (February 12, 1998). 

12See 63 FR 7254 at 7258 (noting that unless a 

state has explicitly demonstrated its authority and 

has been expressly approved by the EPA to 

implement CAA programs in Indian country, the 

EPA is the appropriate entity to implement CAA 

programs prior to tribal primacy), Arizona Public 

Service Company v. EPA., 211 F.3d 1280 (D.C. Cir. 

2000), cert. denied sub nom, Michigan v. EPA., 532 

U.S. 970 (2001) (upholding the TAR); see also 

Alaska v. Native Village of Venetie Tribal 

Government, 533 U.S. 520, 526 n.1 (1998) (primary 

jurisdiction over Indian country generally lies with 

federal government and tribes, not with states). 

13See 59 FR 43956 (August 25, 1994); 63 FR 7253 

(February 12, 1998). 

14See 63 FR 7253 at 7262 (February 12, 1998); 59 

FR 43956 at 43960–43961 (August 25, 1994) (citing, 

among other things, to CAA sections 101(b)(1), 

301(a), and 301(d)). 

15See 63 FR at 7273 (codified at 40 CFR 49.11(a)). 

In the preamble to the final TAR, the EPA explained 

that it was inappropriate to treat Tribes in the same 

manner as states with respect to section 110(c) of 

the Act, which directs the EPA to promulgate a FIP 

within 2 years after the EPA finds a state has failed 

to submit a complete state plan or within 2 years 

after the EPA disapproval of a state plan. Although 

the EPA is not required to promulgate a FIP within 

the 2-year period for tribes, the EPA promulgated 

40 CFR 49.11(a) to clarify that the EPA will 

continue to be subject to the basic requirement to 

issue any necessary or appropriate FIP provisions 

for affected tribal areas within some reasonable 

time. See 63 FR at 7264–65. 

16See 64 FR 48731 (September 8, 1999). 

17 Id. at 48733. 

18See 72 FR 25698 (May 7, 2007), codified at 40 

CFR 49.5512(a)–(h). 

19See 77 FR 51620 (August 24, 2012). 

20For additional information regarding the EPA’s 

analyses regarding BART and the alternative 

emission control strategy, see the EPA’s BART 

proposal (75 FR 64221, October 29, 2010), 

supplemental proposal (76 FR 10530, February 25, 

2011) and final rule (77 FR 51620, August 24, 2012). 

21The 2007 FIP was originally codified at 40 CFR 

49.23. On April 29, 2011, the FCPP FIP was 

redesignated to 40 CFR 49.5512 at 76 FR 23879 

(April 29, 2011). 

baghouses for PM control, lime spray 

towers (‘‘scrubbers’’) for SO2 control, 

and low-NOX burners for limiting NOX

formation during the combustion 

process. FCPP is in the process of 

installing selective catalytic reduction 

(SCR) on Units 4 and 5 for additional 

NOX emission reductions to comply 

with the ‘‘better than BART’’ provisions 

of the 2012 FIP (under 40 CFR 

49.5512(i)(3)) and with the Consent 

Decree. 

C. Attainment Status 

FCPP is located in the Four Corners 

Interstate air quality control region, 

which is designated attainment for all 

criteria pollutants under the CAA.9

D. The EPA’s Authority To Promulgate 

a FIP in Indian Country 

When the CAA was amended in 1990, 

Congress included a new provision, 

section 301(d), granting the EPA 

authority to treat tribes in the same 

manner as states where appropriate.10 In 

1998, the EPA promulgated regulations 

known as the Tribal Authority Rule 

(TAR).11 The EPA’s promulgation of the 

TAR clarified, among other things, that 

state air quality regulations generally do 

not, under the CAA, apply to facilities 

located anywhere within the exterior 

boundaries of Indian reservations.12

Prior to the addition of section 301(d) 

and promulgation of the TAR, some 

states had mistakenly included emission 

limitations in their SIPs that they may 

have believed could apply under the 

CAA to private facilities operating on 

adjacent Indian reservations. 

In the preambles to the proposed and 

final 1998 TAR, the EPA generally 

discusses the legal basis in the CAA that 

authorizes the EPA to regulate sources 

of air pollution in Indian country.13 The 

EPA concluded that the CAA authorizes 

the EPA to protect air quality 

throughout Indian country.14 In fact, in 

promulgating the TAR, the EPA 

specifically provided that, pursuant to 

the discretionary authority explicitly 

granted to the EPA under sections 

301(a) and 301(d)(4) of the Act, the EPA 

‘‘[s]hall promulgate without 

unreasonable delay such federal 

implementation plan provisions as are 

necessary or appropriate to protect air 

quality, consistent with the provisions 

of sections 304(a) [sic] and 301(d)(4), if 

a tribe does not submit a tribal 

implementation plan meeting the 

completeness criteria of 40 CFR part 51, 

Appendix V, or does not receive EPA 

approval of a submitted tribal 

implementation plan.’’ 15

E. Historical Overview of FCPP FIP 

Actions 

On September 8, 1999, the EPA 

proposed a source-specific FIP for 

FCPP.16 The 1999 proposed FIP stated: 

‘‘Although the facility has been 

historically regulated by New Mexico 

since its construction, the state lacks 

jurisdiction over the facility or its 

owners or operations for CAA 

compliance or enforcement purposes.’’ 

The EPA intended for the 1999 FIP to 

‘‘federalize’’ the emission limitations 

that New Mexico had erroneously 

included in its SIP.17 The EPA received 

comments on the proposed 1999 FIP. 

However, at that time, concurrent 

negotiations between an environmental 

non-governmental organization, APS, 

and the Navajo Nation resulted in an 

agreement by APS to voluntarily 

increase the SO2 removal efficiency 

from the scrubbers at FCPP. The EPA 

did not take final action on the 1999 

proposal. 

In 2006, the EPA proposed a new 

source-specific FIP for FCPP and took 

action to finalize it in 2007.18 This new 

FIP imposed federally enforceable 

emission limitations for SO2, based on 

the increased scrubber SO2 removal 

efficiency (72 to 88 percent), and for 

PM, based on the PM emission 

limitation from the New Mexico SIP. 

The 2006 proposed FIP also established 

an emission limitation for opacity and a 

requirement for control measures to 

limit dust emissions from coal handling 

and storage facilities, flyash handling 

and storage facilities, and from roadsweeping activities. In addition, the 

2006 proposed FIP contained NOX

emission limitations that already 

applied to FCPP as part of the Acid Rain 

Program created in the 1990 CAA 

Amendments. 

On August 24, 2012, the EPA 

promulgated a final rule that established 

limits for NOX emissions from FCPP 

under the BART provision of the 

Regional Haze Rule, as well as control 

measures to limit emissions of dust.19

The final rule required the owners of 

FCPP to choose between two strategies 

for BART compliance: (1) Compliance 

with a plant-wide BART emission 

limitation of 0.11 pounds of NOX per 

million British thermal units of heat 

input (lb/MMBtu) by October 23, 2017, 

or (2) retirement of Units 1, 2, and 3 by 

January 1, 2014 and compliance with a 

BART emission limitation for NOX of 

0.098 lb/MMBtu on Units 4 and 5 by 

July 31, 2018. The second BART 

compliance strategy, involving 

retirement of Units 1, 2, and 3, was 

based on a plan originally put forth by 

APS. This compliance strategy was 

proposed and finalized as an alternative 

emission control strategy that achieved 

greater reasonable progress than BART 

(‘‘better than BART’’).20 APS 

permanently ceased operation of Units 

1, 2, and 3 at FCPP by January 1, 2014, 

and is currently engaged in the process 

of installing SCR on Units 4 and 5 to 

meet the applicable NOX emission 

limitations. 

The provisions of the 2007 FIP are 

codified at 40 CFR 49.5512(a)–(h).21 The 

BART provisions of the 2012 FIP are 

codified at 40 CFR 49.5512(i), and the 

dust control measures from the 2012 FIP 

are codified at 40 CFR 49.5512(j). 

II. Basis for Proposed Action 

In this proposed FIP revision, the EPA 

is exercising its discretionary authority 

under sections 301(a) and 301(d)(4) of 

the CAA and 40 CFR 49.11(a). The EPA 

is proposing to find that it is ‘‘necessary 

or appropriate’’ to revise the FCPP FIP, 

because it contains certain provisions 


jstallworth on DSK7TPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Proposed Rules 86991 

22See ‘‘Request to Include Consent Decree in 

Four Corners Federal Implementation Plan’’ from 

Thomas H. Livingston, Fossil Plant Manager and 

Responsible Official, to Elizabeth Adams, Acting 

Director, Air Division, EPA Region IX, dated June 

9, 2016. 

23See document titled ‘‘2016_1118 FCPP FIP 

existing reg text RLSO’’ in the docket for this 

proposed rulemaking. 

that are inconsistent with more recent 

actions and rulemakings promulgated 

by the EPA in the MATS Rule and the 

statutory requirements of the CAA, as 

reflected in the 2015 SSM Action. Thus, 

these provisions of the current FCPP FIP 

are inconsistent with current 

requirements and need to be revised to 

make them consistent with regulatory 

and statutory requirements. The EPA is 

also concerned that that these 

inconsistencies create confusion and 

could lead to regulatory uncertainty by 

the source, regulators, courts, or affected 

members of the public. Additionally, 

the Consent Decree requires APS to 

submit a request to the EPA to amend 

its FIP to include requirements of the 

Consent Decree. APS submitted its 

request on June 9, 2016.22 The EPA is 

also proposing to find that it is 

‘‘necessary or appropriate’’ to revise the 

FIP at this time to include the Consent 

Decree provisions. For the reasons set 

forth above, we are proposing to find 

that limited revisions to the FIP for 

FCPP are ‘‘necessary or appropriate’’ to 

further protect air quality on the Navajo 

Nation. 

III. Summary of Proposed FIP 

Revisions 

A. Proposed FIP Revisions 

The EPA is proposing limited 

revisions to the FCPP FIP at 40 CFR 

49.5512 described as follows. We have 

included a document in the docket for 

this rulemaking that shows the original 

text of 40 CFR 49.5512 and the EPA’s 

proposed revisions to that text.23

1. Revisions to 40 CFR 49.5512(a) 

In the applicability section of the FIP, 

the EPA is proposing to add a statement 

that Units 1, 2, and 3 at FCPP 

permanently ceased operation by 

January 1, 2014 pursuant to the 

requirements of 40 CFR 49.5512(i)(3). 

2. Revisions to 40 CFR 49.5512(c) 

The EPA is proposing to: (1) Specify 

that the definitions in paragraph (c) of 

40 CFR 49.5512(c) apply to paragraphs 

(a) through (j) of 40 CFR 49.5512; (2) 

delete the definition of affirmative 

defense at 40 CFR 49.5512(c)(1); and (3) 

delete the portion of the definition of 

malfunction that provides for an 

affirmative defense for malfunctions at 

40 CFR 49.5512(c)(7). We are also 

proposing to delete portions of the 

definitions for shutdown (at 40 CFR 

49.5512(c)(12)) and startup (at 40 CFR 

49.5512(c)(13)) that relate to Units 1, 2, 

and 3. 

3. Revisions to 40 CFR 49.5512(d) 

The EPA is proposing to add a 

statement that the emission limitations 

under 40 CFR 49.5512(d) apply to FCPP 

at all times. Under 40 CFR 

49.5512(d)(2), we are proposing to 

delete the portion of the PM emission 

limitation that provides detailed 

specifications, i.e., test duration and 

minimum collection volume, related to 

PM testing. The EPA is also proposing 

to delete the dust provisions in 40 CFR 

49.5512(d)(3). Under 40 CFR 

49.5512(d)(4), we are proposing to 

delete the exclusion of uncombined 

water droplets from the opacity 

standard and to add a provision stating 

that any unit for which the owner or 

operator installs, calibrates, maintains, 

and operates a PM CEMS to demonstrate 

compliance with emission limitations 

for PM will be exempt from the opacity 

standard. Finally, the EPA is proposing 

to delete the portion of the emission 

limitation for NOX under 40 CFR 

49.5512(d)(5)(i) that applied to Units 1, 

2, and 3. 

4. Revisions to 40 CFR 49.5512(e) 

Paragraph (e) of 40 CFR 49.5512 

addresses testing and monitoring and 

generally uses sub-paragraphs (e)(1)– 

(e)(8) to outline pollutant-specific 

requirements to ensure compliance with 

the emission limitations in paragraph 

(d). Under 40 CFR 49.5512(e), the EPA 

is proposing to delete specific 

provisions for PM testing and move 

revised provisions for PM testing to 40 

CFR 49.5512(e)(3). Also under 40 CFR 

49.5512(e), we are proposing to remove 

provisions that exempt units from 

opacity monitoring requirements during 

periods when the stack is saturated and 

also to remove a presumption that high 

opacity readings that occur when the 

baghouse is operating within normal 

parameters are caused by water vapor 

and shall not be considered a violation. 

In addition, we are proposing to move 

the opacity monitoring requirements 

from 40 CFR 49.5512(e) to 40 CFR 

49.5512(e)(6). In paragraph 

49.5512(e)(1), we are proposing to delete 

provisions that specify the compliance 

deadline for installing CEMS for SO2

and NOX because CEMS for those 

pollutants have already been installed at 

FCPP. In paragraph (e)(3), we are 

proposing to revise the testing 

requirements for PM to be consistent 

with the three options for PM testing 

under the MATS Rule in 40 CFR part 63 

subpart UUUUU. In paragraph (e)(6), we 

are proposing to clarify that (e)(6) 

applies if the opacity standard in 

paragraph (d)(4) is applicable, i.e., if the 

owner or operator has not elected to 

install and certify PM CEMS for 

demonstrating compliance with PM 

emission limitations. In addition, we are 

revising the opacity monitoring 

requirements in (e)(6) to provide three 

options for determining compliance 

with the opacity standard, if the opacity 

standard applies. Because Units 1, 2, 

and 3 at FCPP have permanently ceased 

operation, the EPA is also proposing to 

delete the testing requirements for those 

units in paragraph (e)(8). 

5. Revisions to 40 CFR 49.5512(f) 

The EPA is proposing revisions to the 

reporting and recordkeeping 

requirements to provide additional 

clarity that all reports and notifications 

required in paragraph (f), (f)(4), and 

(f)(4)(ii) should be reported to the 

Navajo Nation Environmental Protection 

Agency (NNEPA) and the EPA. We are 

also revising paragraph (f) to require 

that the Air Division and the 

Enforcement Division within the Region 

IX office of the EPA be provided reports 

and notifications. Paragraph (f)(1) 

includes CEMS notification and 

recordkeeping requirements, and we are 

proposing to add notification and 

recordkeeping requirements for the 

Continuous Opacity Monitoring 

Systems (COMS) and visible emission 

testing. In addition, we are also 

proposing to delete the water vapor 

exemptions in paragraphs (f)(4)(i) and 

(f)(4)(i)(H). Finally, paragraph (f)(4)(i)(G) 

requires written reports to include 

opacity exceedances from the COMS, 

and we are proposing to also require 

reporting of opacity exceedances from 

the visible emission performance tests. 

6. Revisions to 40 CFR 49.5512(h) 

The EPA is proposing to delete the 

startup and shutdown exemptions for 

opacity and PM at paragraph (h)(2), and 

to delete the provisions related to an 

affirmative defense for malfunctions in 

paragraph (h)(3). 

7. Revisions to 40 CFR 49.5512(i) 

The EPA is proposing to delete the 

technical specifications in paragraph 

(i)(1) for annual PM testing and require 

that PM testing be performed in 

accordance with paragraph (e)(3) of 

49.5512, which requires either testing 

using procedures in accordance with the 

MATS Rule at 40 CFR part 63 subpart 

UUUUU, or the installation, calibration, 

maintenance, and operation of a 

continuous parametric monitoring 

system (CPMS) or a CEMS for PM. In 


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24See 40 CFR 49.5512(i)(2) and (3). See also 77 

FR 51620 (August 24, 2012). 

25See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 

2014). 

26See February 4, 2013 Memorandum to Docket 

EPA–HQ–OAR–2012–0322: ‘‘State Implementation 

Plans: Response to Petition for Rulemaking; 

Findings of Substantial Inadequacy; and SIP Calls 

to Amend Provisions Applying to Excess Emissions 

During Periods of Startup, Shutdown, and 

Malfunction; Statutory, Regulatory, and Policy 

Context for this Rulemaking.’’ 

27See, e.g., Sierra Club v. Johnson, 551 F.3d 1019 

(D.C. Cir. 2008); US Magnesium, LLC v. EPA, 690 

F.3d 1157 (10th Cir. 2012). This issue is discussed 

at length in ‘‘Memorandum to Docket EPA–HQ– 

OAR–2012–0322, Statutory, Regulatory, and Policy 

Context for this Rulemaking,’’ February 4, 2013. 

addition, under paragraph (i)(2)(iii), we 

are proposing to correct a typographical 

error. 

8. Addition of 40 CFR 49.5512(k) 

The EPA is proposing to promulgate 

paragraph (k) to add emission 

limitations and other provisions from 

the Consent Decree to the FCPP FIP. 

B. Justification for Proposed FIP 

Revisions 

1. Revisions to 40 CFR 49.5512(a) 

The EPA is proposing to add a 

statement to the applicability paragraph 

of the FIP that Units 1, 2, and 3 at the 

Four Corners Power Plant permanently 

ceased operation by January 1, 2014 

pursuant to the requirements of 40 CFR 

49.5512(i)(3). This proposed revision is 

intended to update the FIP to reflect 

current operation at FCPP. 

The EPA’s 2012 FIP for Regional Haze 

required FCPP to comply with either 

emission limitations for BART, 

achievable with the installation of SCR 

on all five units at FCPP, or a ‘‘better 

than BART’’ alternative.24 The operator 

of FCPP elected to comply with the 

alternative. Under the alternative, the 

operator retired Units 1, 2, and 3 by 

January 1, 2014, and has begun the 

process to install SCR on the Units 4 

and 5. 

Units 1, 2, and 3 have not been 

operated since January 1, 2014, and the 

operator has been begun the process to 

dismantle those units. Accordingly, it is 

reasonable to add a statement regarding 

the status of those units. This revision, 

if finalized as proposed, would not relax 

any requirement or affect the stringency 

of the FIP. This proposed change to 

update the FIP would not have any 

effect on air quality in the area 

surrounding FCPP. 

2. Revisions to 40 CFR 49.5512(c) 

Paragraph (c) defines certain terms 

used in the FIP. As discussed elsewhere, 

the EPA is proposing to add a new 

paragraph (k) that includes provisions, 

including a separate set of definitions, 

from the Consent Decree. Therefore, to 

avoid confusion associated with slight 

differences that may exist between 

terms common to both sets of 

definitions, we are proposing to specify 

that the definitions in paragraph (c) 

apply to paragraph (a) through (j). This 

revision, if finalized as proposed, would 

not relax any requirement or affect the 

stringency of the FIP, and would not 

have any effect on air quality in the area 

surrounding FCPP. 

Consistent with the proposed 

revisions to paragraph (a), the EPA is 

proposing to remove portions of 

definitions for shutdown and startup (at 

paragraph (c)(12) and (13)), related to 

Units 1, 2, and 3, in order to update the 

FIP to reflect current operating 

conditions. Because these units were 

retired by January 1, 2014, these 

revisions, if finalized as proposed, 

would not relax any requirements or 

affect the stringency of the FIP as 

contemplated by CAA section 110(l). 

These proposed changes to update the 

FIP would not have any effect on air 

quality in the area surrounding FCPP. 

The EPA is also proposing to remove 

definitions and provisions in paragraph 

49.5512(c) that provide an affirmative 

defense for malfunction episodes. After 

the EPA’s promulgation of the 2007 FIP, 

the United States Court of Appeals for 

the District of Columbia (‘‘D.C. Circuit’’) 

ruled that CAA sections 113 (federal 

enforcement) and 304 (citizen suits) 

preclude EPA from creating affirmative 

defense provisions in the Agency’s own 

regulations imposing emission 

limitations on sources.25 The D.C. 

Circuit found that such affirmative 

defense provisions purport to alter the 

jurisdiction of federal courts to assess 

liability and impose penalties for 

violations of those limits in private civil 

enforcement cases. The D.C. Circuit’s 

holding makes clear that the CAA does 

not authorize promulgation of such a 

provision by the EPA. In particular, the 

D.C. Circuit’s decision turned on an 

analysis of CAA sections 113 and 304. 

These provisions apply with equal force 

to a civil action brought to enforce the 

provisions of a FIP. The logic of the D.C. 

Circuit’s decision thus applies to the 

promulgation of a FIP, and precludes 

the EPA from including an affirmative 

defense provision in a FIP.26 For these 

reasons, the EPA is proposing to delete 

the provision in the FIP that provides an 

affirmative defense for exceedances of 

emission limitations that occur during 

malfunctions at FCPP. This proposed 

revision, if finalized, will not relax any 

requirements in the FIP and would not 

have any adverse effects on air quality 

in the area. Additionally, by removing 

an inconsistency between the FIP and 

the EPA’s more recently promulgated 

regulations and the 2015 SSM Action, 

the proposed revision provides more 

clarity and certainty. 

3. Revisions to 40 CFR 49.5512(d) 

The EPA is proposing to add a 

statement to make clear that the 

emission limitations under 40 CFR 

49.5512(d) apply continuously and at all 

times. Exemptions from emission 

limitations during any mode of source 

operation are contrary to CAA 

requirements. CAA section 110(a)(2)(A) 

requires SIPs to include, among other 

requirements, ‘‘enforceable emission 

limitations.’’ Section 302(k) of the CAA 

defines an emission limitation as: ‘‘a 

requirement established by the State or 

the Administrator which limits the 

quantity, rate, or concentration of 

emissions of air pollutants on a 

continuous basis, including any 

requirement relating to the operation or 

maintenance of a source to assure 

continuous emission reduction, and any 

design, equipment, work practice or 

operational standard promulgated under 

this Act.’’ The courts have held that the 

plain meaning of the term ‘‘continuous’’ 

does not allow exemptions from 

emission limitations.27 For these 

reasons, the EPA is proposing to add a 

statement to clarify in 40 CFR 

49.5512(d) that the emission limitations 

in that paragraph apply at all times. 

This proposed revision, if finalized, 

would strengthen the existing emission 

limitations by clarifying that the limits 

are applicable at all times, including 

during periods of startup and shutdown. 

Under paragraph (d)(2), the EPA is 

proposing to delete the portion of the 

PM emission limitation that specifies 

requirements related to the test duration 

and minimum collection volume for PM 

testing. Generally, the testing 

requirements for PM and other 

pollutants are found in paragraph (e). To 

improve clarity of the regulation, the 

EPA is proposing to delete the 

provisions in paragraph (d)(2) that relate 

to testing and rely solely on paragraph 

(e) to specify the requirements for test 

methods. This proposed revision, if 

finalized, would not relax any 

requirements and would not affect air 

quality in the area surrounding FCPP. 

Under paragraph (d)(3), we are 

proposing to delete the requirements for 

dust control. The EPA promulgated 

paragraph (d)(3) as part of the 2007 FIP. 

Following final action on the 2007 FIP, 

the operator of FCPP filed a petition for 

review, claiming, among other things, 


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28Arizona Public Service Company v. EPA et al., 

562 F.3d 1116, Case No. 07–9546, (10th Circuit, 

Apr. 14, 2009). 

29See 73 FR 67107 (November 13, 2008). 

30See 75 FR 64211 (October 19, 2010) and 77 FR 

51620 (August 12, 2012). 

31See 40 CFR part 60 subpart Da at 60.42Da(b). 

Subpart Da to part 60 is the ‘‘Standard of 

Performance for Electric Utility Steam Generating 

Units’’ and applies to units that are capable of 

combusting more than 73 MW heat input of fossil 

fuel and for which construction, modification, or 

reconstruction commenced after September 18, 

1978. The units at FCPP were constructed prior to 

1978 and are not subject to part 60 subpart Da. 

32See 40 CFR part 60 subpart Da 60.49Da(a). 

33See 40 CFR part 75 subpart B at 75.14. 

34See 72 FR 25698 at 25701 (May 7, 2007). 

35We note that the Consent Decree requires the 

operator to modify the existing ductwork at FCPP 

to withstand saturated conditions in order to 

eliminate the bypass. See proposed regulatory text 

at 40 CFR 49.5512(k)(3)(ii). 

36See document titled ‘‘Opacity Exceedances due 

to Saturated Stack.docx,’’ in the docket for this 

rulemaking, showing three opacity exceedances 

from Units 4 and 5 combined due to wet stack 

conditions over 2011–2015, generally resulting from 

equipment malfunction. 

37See also 77 FR 9304 (February 16, 2012). 

38See, e.g., discussion of opacity in the 2007 FIP 

for FCPP, 72 FR 25698 at 25701 (May 7, 2007), 

stating that opacity limits are generally applied to 

ensure a unit is meeting its PM limit. 

that the EPA had not provided an 

adequate explanation for promulgating 

the dust control requirements.28 In the 

litigation, the EPA agreed that the dust 

control requirements should be 

remanded and vacated because the 2007 

FIP did not contain an adequate 

explanation of its rationale. On 

November 13, 2008, the EPA issued a 

final rule to stay the effectiveness of the 

dust control requirements at paragraph 

(d)(3).29 In the EPA’s 2012 action to 

implement the BART requirements for 

FCPP, the EPA proposed and finalized 

dust control measures in the FCPP FIP 

at paragraph (j) that were consistent 

with the requirements in paragraph 

(d)(3) requiring submission of a dust 

control plan and compliance with a 20- 

percent opacity limit.30 The proposal 

provided the EPA’s rationale for 

establishing dust control requirements, 

and these requirements were not 

challenged in the final 2012 FIP. 

Because the requirements in paragraph 

(d)(3) were stayed in 2008 and replaced 

by paragraph (j) in 2012, which remains 

in effect, the EPA’s proposal to remove 

the dust control requirements at 

paragraph (d)(3) would not relax any 

requirements and would not have any 

effects on air quality in the area 

surrounding FCPP. 

Paragraph (d)(4) establishes a 

requirement that the discharge of 

emissions from the stacks of Units 4 and 

5 shall not exhibit greater than 20 

percent opacity, excluding uncombined 

water droplets. We are proposing to 

delete the exclusion of uncombined 

water droplets from the opacity 

standard. This specific exclusion of 

water vapor is inconsistent with the 

2015 SSM Action. The exclusion is also 

inconsistent with the EPA’s treatment of 

opacity in other rulemakings. For 

example, although FCPP is not subject 

to the New Source Performance 

Standard (NSPS) for electric generating 

units at 40 CFR part 60 subpart Da, the 

subpart Da standard does not include a 

specific exclusion for water vapor in the 

opacity standard.31 However, it does 

include provisions for addressing 

interference of water vapor with the 

COMS by providing alternative 

monitoring requirements to assure 

continuous monitoring of baghouse 

performance.32 In addition, subpart B to 

40 CFR part 75 includes an exemption 

from the opacity monitoring 

requirements of part 75 (i.e., COMS) for 

units with wet flue gas pollution control 

systems where it is demonstrated that 

condensed water is present and impedes 

the accuracy of opacity measurements.33

Generally, these alternatives for 

addressing water vapor interference 

would be invoked for systems that 

consistently experience saturated stack 

conditions. 

The EPA promulgated the exclusion 

of uncombined water droplets in the 

2007 FIP to address the technical 

challenge at FCPP associated with the 

use of COMS to monitor opacity when 

the stacks are saturated.34 Currently, the 

scrubbers for SO2 control at FCPP 

operate with a bypass specifically to 

avoid saturated stack conditions given 

the physical limitations of the existing 

unlined stacks.35 Furthermore, we 

understand from the operator of FCPP 

that Units 4 and 5 infrequently 

experience high opacity readings as a 

result of water vapor interference, and 

the limited instances generally resulted 

from equipment or process issues.36

The EPA is proposing to remove the 

provisions exempting water vapor from 

the opacity standard and the associated 

monitoring and reporting requirements 

because these exemptions are 

inconsistent with the 2015 SSM Action, 

stating that emission standards must 

apply at all times, including periods of 

malfunction. Our proposal, to remove 

the water vapor exemption from the 

opacity standard and monitoring 

requirements, represents a strengthening 

of the FIP. Therefore, we anticipate that 

this proposed revision would not have 

any adverse effects on air quality in the 

surrounding area. 

Under paragraph (d)(4), we are also 

proposing to add a provision that any 

unit for which the owner or operator 

installs, calibrates, maintains, and 

operates a PM CEMS to demonstrate 

compliance with a PM emission 

limitation shall be exempt from the 

opacity standard in paragraph (d)(4), 

and the associated monitoring and 

recordkeeping requirements in 

paragraphs (e) and (f). This provision is 

consistent with the provisions of the 

NSPS at 60.42Da(b)(1) and the Acid 

Rain Program requirements at 40 CFR 

75.14(e), which generally provides that 

any owner or operator that elects to 

install, calibrate, maintain, and operate 

a CEMS for measuring PM emissions is 

exempt from the opacity standard and 

monitoring requirements.37 The PM 

CEMS is a monitoring system that 

provides a continuous assessment of 

compliance with a PM limit. Generally, 

opacity standards and COMS have been 

used as a surrogate to ensure continuous 

compliance with a PM emission 

standard that would otherwise be 

subject to periodic source testing.38 As 

noted above, FCPP is not subject to the 

NSPS at 60.42Da. However, we are 

proposing to follow the same rationale 

from Subpart Da to exempt any unit 

from the opacity standard and COMS 

requirement if a PM CEMS is installed 

on that unit and used for determining 

continuous compliance with its PM 

emission limitation. 

As discussed elsewhere in this 

proposed rule, the Consent Decree 

requires the operator of FCPP, by early 

2017, to install PM CEMS and, by mid2018, to make modifications to the 

stacks to withstand saturated conditions 

to allow greater SO2 removal efficiency 

(by reducing or eliminating the existing 

scrubber bypass). After these stack 

modifications are made in 2018, we 

anticipate that the units at FCPP will 

more consistently experience saturated 

stack conditions that may impede the 

accuracy of opacity measurements. We 

consider the use of PM CEMS to be an 

improvement upon the use of an opacity 

standard and COMS as a surrogate for 

measuring continuous compliance with 

PM limits, particularly for wet stacks. 

Therefore, the EPA does not consider 

these revisions to relax any 

requirements or to result in any adverse 

effects on air quality in the surrounding 

area. 

The last proposed revision under 

paragraph (d) is to remove the emission 

limitation for NOX that applied to Units 

1, 2, and 3 at FCPP under 40 CFR 

49.5512(d)(5)(i). The owner or operator 

permanently ceased operation of Units 

1, 2, and 3 by January 1, 2014; therefore, 

removal of the emission limitations for 

these retired units specified in 


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39See 40 CFR 60.49Da(2)(i) and 60.49Da(a)(4)(ii). 

40Under 40 CFR 60.13(h)(3)(i), the Administrator 

may approve alternatives to any monitoring 

procedures or requirements of part 60. 

paragraph (d)(5)(i) would not relax any 

requirements or have any effect on air 

quality in the area surrounding FCPP. 

4. Revisions to 40 CFR 49.5512(e) 

Paragraph (e) of 40 CFR 49.5512 

generally relates to testing and 

monitoring requirements that follow in 

subparagraphs (e)(1)–(e)(8). Under 

paragraph (e), prior to subparagraph 

(e)(1), we are proposing to remove 

specific provisions for particulate matter 

testing and to move revised provisions 

for PM to subparagraph (e)(3). The EPA 

is proposing this revision to improve the 

clarity of the regulatory requirements. 

Therefore, this proposed revision, to 

address testing and monitoring 

requirements elsewhere, within specific 

sub-paragraphs in paragraph (e), would 

not relax any requirements or affect air 

quality in the surrounding area. We 

address the specific provisions related 

to revisions to the PM testing and 

monitoring provisions in a separate 

discussion on paragraph (e)(3). 

In paragraph (e), we are also 

proposing to remove provisions related 

to opacity and move revised opacity 

monitoring requirements to paragraph 

(e)(6). We are proposing to remove the 

existing opacity monitoring exemption 

for periods when the stack is saturated 

and to remove the presumption that 

high opacity readings that occur when 

the baghouse is operating within normal 

parameters is caused by water vapor and 

shall not be considered a violation. As 

outlined in our justification for 

proposed revisions to paragraph (d)(4), 

the existing exemptions for opacity 

monitoring for periods of saturated 

stacks are inconsistent with the EPA’s 

interpretation of CAA requirements to 

prohibit emission limitation exemptions 

and affirmative defenses applicable to 

excess emissions during malfunctions. 

The proposed revisions to the opacity 

standard and monitoring requirements 

strengthen the FIP and therefore, these 

changes would not affect air quality in 

the surrounding area. 

In paragraph (e)(1), we are proposing 

to remove the provision specifying a 

compliance deadline for installing 

CEMS for SO2, NOX, and a diluent 

because the CEMS for those pollutants 

have already been installed. The EPA is 

not revising the provisions related to the 

required operation, maintenance, or 

certification of the CEMS. Because we 

are proposing to delete a requirement 

that merely establishes a compliance 

date that has already been met, this 

proposed revision would not relax any 

requirements or affect air quality in the 

surrounding area. 

In paragraph (e)(3), the EPA is 

proposing to revise the annual PM 

testing requirements to require the 

owner or operator to either: Conduct PM 

testing in accordance with the quarterly 

testing specifications in the MATS Rule 

(see Table 5, 40 CFR part 63, subpart 

UUUUU); to install, calibrate, maintain, 

and operate a CPMS on each unit in 

accordance with the MATS Rule (see 40 

CFR part 63, subpart UUUUU); or to 

install, calibrate, maintain, and operate 

a PM CEMS on each unit, in accordance 

with the MATS Rule (see 40 CFR part 

63, subpart UUUUU). Currently, 

paragraph (e)(3) requires annual PM 

testing. We are proposing to align the 

PM testing requirement in the 2007 FIP 

with the testing requirements in the 

MATS Rule, which includes either 

quarterly testing or continuous 

monitoring. Therefore, this proposed 

revision would increase the frequency 

of PM testing required in the FIP from 

an annual basis to either a quarterly or 

a continuous basis. In addition, the 

testing provisions in the MATS Rule 

generally refer to the same test methods 

as those already referenced elsewhere in 

the FCPP FIP in paragraphs (e) and 

(i)(1), e.g., 40 CFR part 60 Appendices 

A–1 through A–3, Methods 1 through 4, 

and Method 5. Therefore, this proposed 

revision streamlines testing for PM, does 

not relax any other requirements, and 

makes the testing requirements for PM 

under the FIP consistent with the PM 

testing requirements in a recent national 

rulemaking. This proposed revision 

would not have adverse impacts on air 

quality in the surrounding area. 

In paragraph (e)(6), we are proposing 

to clarify that this opacity monitoring 

provision applies only to units at FCPP 

that are subject to the opacity standard 

at paragraph (d)(4). As discussed 

elsewhere in this proposed rule, we are 

proposing that the opacity standard 

would apply only if the owner or 

operator does not elect to monitor 

compliance with the PM limit using PM 

CEMS. If the opacity standard applies, 

under paragraph (e)(6) we are proposing 

three options for determining 

compliance with the opacity standard. 

The first option specifies separate 

compliance demonstrations for the 

opacity standard under dry and wet 

conditions. When the stack is dry 

(unsaturated), we are proposing to 

continue to require use of the existing 

COMS. However, during periods of wet 

(saturated) stack conditions, which are 

currently infrequent, the condensed 

water vapor may impede the accuracy of 

opacity measurements. Therefore, 

anticipating that saturated stack 

conditions at FCPP may occur more 

frequently in the future, we are 

proposing to require the owner or 

operator to demonstrate compliance 

with the opacity standard during 

saturated stack conditions using visible 

emission performance testing. We 

consider the visible emission 

compliance demonstrations to provide 

reasonable demonstrations of 

compliance with the opacity standard 

during these infrequent occurrences. 

However, when the stacks at FCPP are 

lined to eliminate the scrubber bypass 

and result in consistently saturated 

stacks, continuous visible emission 

performance tests may be impractical. 

Therefore, we are proposing two 

additional options for determining 

compliance with the opacity standard. 

Both options are provided in 40 CFR 

part 60 subpart Da as alternatives to 

COMS for units experiencing 

interference from water vapor.39 In 

paragraph (e)(6)(ii), we are proposing a 

second option that requires the 

installation and maintenance of a 

CPMS, in accordance with the MATS 

Rule at 40 CFR part 63 subpart UUUUU, 

combined with periodic visible 

emission testing in accordance with 40 

CFR 60.49Da(a)(3). In paragraph 

(e)(6)(iii), we are proposing a third 

option that requires monitoring 

performance of the existing baghouses 

using a bag leak detection system in 

accordance with 40 CFR 60.48Da(o)(4), 

or an alternative bag leak detection 

system approved by the EPA, combined 

with periodic visible emission testing in 

accordance with 40 CFR 

60.49Da(a)(3).40 As discussed elsewhere 

in this notice, the proposed revisions to 

the opacity standard and monitoring 

requirements would strengthen the FIP 

and benefit air quality in the 

surrounding area because they remove 

existing exemptions in the FIP and 

provide reasonable alternatives to 

address saturated stack conditions in a 

manner that is consistent with other 

national rulemakings. 

Because Units 1, 2, and 3 have 

permanently ceased operation, we are 

proposing to delete the testing 

requirements for those units in 

paragraph (e)(8). Removal of the testing 

requirements for these retired units 

would not relax any requirements or 

have any effect on air quality in the area 

surrounding FCPP. 

5. Revisions to 40 CFR 49.5512(f) 

The EPA is proposing revisions to the 

reporting and recordkeeping 

requirements to provide additional 

clarity that all reports and notifications 


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required in paragraph (f), (f)(4), and 

(f)(4)(ii) must be submitted to the 

NNEPA and the EPA. Within the 

recordkeeping and reporting 

requirements in paragraph (f), we are 

proposing changes to clarify that any 

reports that are required to be submitted 

to the Regional Administrator or the 

Administrator must be submitted to the 

Director of NNEPA and to the Air 

Division Director at Region IX office of 

the EPA. We are also revising paragraph 

(f) to require that the Director of the 

Enforcement Division, in addition to the 

Director of the Air Division, at the 

Region IX office of the EPA, be provided 

reports and notifications. These 

proposed revisions do not relax any 

requirements or have any effect on air 

quality in the area surrounding FCPP. 

Paragraph (f)(1) requires notification 

and recordkeeping requirements for the 

CEMS. The EPA is proposing to add the 

COMS and visible emission testing to 

the notification and recordkeeping 

requirements in this paragraph. These 

proposed revisions do not relax any 

requirements and would not adversely 

affect air quality in the area surrounding 

FCPP. 

In paragraph (f)(3), we are proposing 

to delete the specification related to the 

frequency of particulate matter testing 

but are not proposing to modify any 

provisions related to PM testing reports 

to the EPA. As discussed elsewhere, we 

are proposing modifications to the PM 

testing requirements to align with the 

MATS Rule, which provides three 

options for demonstrating compliance 

with the PM emission limitations: 

Quarterly stack tests, CPMS, or PM 

CEMS. Deleting the specification in 

paragraph (f)(3) that PM testing occurs 

annually is consistent with the 

proposed revision to align the PM 

testing and monitoring requirements for 

FCPP with those of the MATS Rule. 

In addition, in paragraphs (f)(4)(i) and 

(f)(4)(ii), we are proposing to delete the 

mailing addresses and other details 

related to reporting requirements, as 

they are redundant to the provisions in 

paragraph (f). All reports and 

notifications under paragraph (f) must 

be submitted to the NNEPA and the 

EPA, and we are proposing to clarify 

under paragraph (f) that all references to 

the Regional Administrator in that 

paragraph mean the Directors of the 

NNEPA and two divisions within the 

EPA Region IX office. Paragraph (f)(4) 

repeats addresses and other details 

already stated in paragraph (f). The EPA 

is proposing to delete these redundant 

provisions in paragraph (f)(4). We 

anticipate this revision would improve 

regulatory clarity and would have no 

impact on air quality in the surrounding 

area. 

Consistent with the proposed 

revisions to the opacity standard and 

COMS requirement in paragraphs (d) 

and (e), we are proposing to delete 

references to saturated stack conditions 

in paragraphs (f)(4)(i) and (f)(4)(i)(H). In 

paragraph (f)(4)(i)(G), we are also 

proposing to require the owner or 

operator to report opacity exceedances 

determined from the visible emission 

performance tests. As discussed 

elsewhere in this notice, because 

provisions in the existing FCPP FIP 

exempt the units from the opacity limit 

during periods where the stacks were 

saturated, the removal of the exemption 

represents a strengthening of the FIP 

and would not relax other requirements 

in the FCPP FIP. 

6. Revisions to 40 CFR 49.5512(h) 

The EPA is proposing to delete the 

startup and shutdown exemptions for 

the opacity and PM emission limitations 

at paragraph (h)(2) and to delete the 

provisions related to an affirmative 

defense for malfunctions in paragraph 

(h)(3). As discussed previously, 

exemptions from emission limitations 

and provisions that allow an affirmative 

defense are inconsistent with CAA 

requirements. Using the same rationale 

we provided elsewhere in this notice, 

for the proposed revisions to 40 CFR 

52.5512(c) and (d), the EPA is proposing 

to delete the provisions at paragraph 

(h)(2) that provide an exemption from 

emission limitations during periods of 

startup and shutdown and also to delete 

the provisions in the paragraph (h)(3) 

that provide an affirmative defense for 

malfunctions at FCPP. The proposed 

removal of these provisions strengthens 

the FIP and does not relax any other 

requirements in the FIP. Therefore, the 

removal of these revisions would not 

adversely affect air quality in the 

surrounding area. 

7. Revisions to 40 CFR 49.5512(i) 

Under paragraph (i)(1), promulgated 

in the 2012 FIP, the EPA is proposing 

to delete the existing provisions related 

to annual PM testing and add a 

provision that PM testing shall be 

performed in accordance with 

paragraph (e)(3), which requires 

quarterly PM testing, or installation, 

calibration, and operation of CPMS, or 

PM CEMS, in accordance with the 

MATS Rule. This proposed revision 

would increase the frequency of PM 

testing from an annual basis to either a 

quarterly or continuous basis. The 

testing provisions in the MATS Rule 

generally refer to the same test methods 

already referenced in the FIP in 

paragraphs (e) and (i)(1), e.g., 40 CFR 

part 60 Appendices A–1 through A–3, 

Methods 1 through 4, and Method 5. 

This proposed revision would not relax 

any requirements and would make the 

testing requirements for PM under the 

FIP consistent with the PM testing 

requirements in recent national 

rulemakings. Therefore, this revision 

would not have adverse impacts on air 

quality in the surrounding area. 

In addition, under paragraph (i)(2)(iii) 

of the 2012 FIP, we are proposing to 

correct a typographical error in a 

citation. Paragraph (i)(2)(iii) provides 

the schedule for the installation of addon post-combustion NOX controls and 

refers to interim emission limitations for 

NOX at paragraph (i)(2)(ii)(A). However, 

the interim emission limitations are 

found in paragraph (i)(2)(ii), and 

subparagraph (A) to paragraph (i)(2)(ii) 

does not exist. Although the interim 

limits under paragraph (i)(2)(ii) do not 

apply because the owner or operator 

elected to implement paragraph (i)(3) in 

lieu of paragraph (i)(2) for NOX, the EPA 

is proposing to correct this error in 

order to improve regulatory clarity. This 

proposed revision would have no effect 

on air quality in the surrounding area. 

8. Addition of 40 CFR 49.5513(k) 

The EPA is proposing to add 

paragraph (k) to include provisions 

required for compliance with the 

Consent Decree. The EPA is not 

revisiting or opening for comment any 

of the specific requirements of the 

Consent Decree and is requesting 

comment only on whether the EPA has 

incorporated all appropriate 

requirements from the Consent Decree 

into the FIP. Generally, the Consent 

Decree established emission limitations 

and other requirements to reduce 

emissions of SO2, NOX and PM. The 

Consent Decree requires the owner or 

operator to modify the existing 

ductwork and stacks for Units 4 and 5 

to accommodate a wet stack in order to 

eliminate the need to bypass flue gas 

around the scrubbers and to achieve and 

maintain an SO2 removal efficiency of at 

least 95 percent, which is more stringent 

than the requirement to achieve an 88 

percent removal efficiency in paragraph 

(d)(1)(i). The Consent Decree also 

established an emission limitation for 

NOX of 0.080 lb/MMBtu, which is more 

stringent than the NOX limit of 0.098 lb/ 

MMBtu in 40 CFR 49.5512(i)(3) from the 

2012 FIP. Finally, the Consent Decree 

established a PM emission limitation of 

0.0150 lb/MMBtu for Units 4 and 5, 

which is more stringent than the PM 

limit of 0.015 lb/MMBtu that was 

applied to those units in the 2012 FIP. 

Because the Consent Decree set more 


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stringent emission limitations, the 

proposed revision to incorporate the 

provisions of the Consent Decree into 

the FIP for FCPP strengthens the FIP 

and would not relax any existing 

requirements. In this action, the EPA is 

merely proposing to incorporate the 

existing Consent Decree requirements 

into the FIP for FCPP and is requesting 

comment only on whether the EPA has 

incorporated all appropriate 

requirements from the Consent Decree 

into the FIP. The Consent Decree is 

anticipated to benefit air quality, and 

the proposed inclusion of the Consent 

Decree requirements in the FIP would 

make those requirements continue to be 

federally enforceable after the Consent 

Decree is terminated. 

C. Compliance Schedule 

The EPA proposes that the 

requirements contained in this proposal 

will become enforceable on the effective 

date following final promulgation of this 

FIP revision unless otherwise provided 

in a specific provision of the FIP. 

IV. Proposed Action and Solicitation of 

Comments 

As described above, the EPA proposes 

revisions to the FCPP FIP for several 

reasons: (1) To make certain provisions 

in the FIP consistent with national 

rulemakings and other actions since 

2012; (2) to update the FIP to reflect 

recent operating changes; and (3) to add 

new provisions to the FIP to include the 

requirements of the Consent Decree. 

The EPA solicits comments on the 

limited revisions of the FCPP FIP that 

we are proposing in this rulemaking. We 

are also soliciting comment on whether 

the EPA has accurately incorporated the 

requirements from the Consent Decree 

into paragraph (k) of the FIP. We are not 

accepting comment on any provisions of 

the FCPP FIP that we are not proposing 

to revise, and we are not accepting 

comment on the specific requirements 

of the Consent Decree. Accordingly, 

please limit your comments to those 

specific provisions recited above that 

we are proposing to revise in today’s 

action. 

V. Environmental Justice 

Considerations 

The Four Corners Power Plant is 

located on the reservations lands of the 

Navajo Nation, and the EPA recognizes 

there is significant community interest 

in the emissions and environmental 

effects of this facility. As discussed 

elsewhere in this document, the 

proposed revisions to the FCPP FIP 

would: Strengthen the FIP by removing 

emission limitation exemptions for 

periods of startup, shutdown, and 

saturated stacks; remove an affirmative 

defense applicable to excess emissions 

during malfunctions; and codify more 

stringent emission limitations for SO2, 

NOX, and PM from a Consent Decree 

dated August 17, 2015. Additional 

revisions to the FCPP FIP proposed in 

this notice, including to streamline 

certain testing requirements to be 

consistent with national rulemakings 

promulgated since 2008 and to remove 

requirements for units that have 

permanently ceased operation, would 

not relax any condition in the FCPP FIP. 

Therefore, the EPA considers this 

proposed action to be beneficial for 

human and environmental health, and 

to have no potential disproportionately 

high and adverse effects on minority, 

low-income, or indigenous populations. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. This rule 

applies to only one facility. Therefore, 

its recordkeeping and reporting 

provisions do not constitute a 

‘‘collection of information’’ as defined 

under 44 U.S.C. 3502(3) and 5 CFR 

1320.3(c). 

C. Regulatory Flexibility Act (RFA) 

I certify that this proposed action will 

not have a significant economic impact 

on a substantial number of small 

entities. This action will not impose any 

requirements on small entities. Firms 

primarily engaged in the generation, 

transmission, and/or distribution of 

electric energy for sale are small if, 

including affiliates, the total electric 

output for the preceding fiscal year did 

not exceed four million megawatt-hours. 

Each of the owners of the facility (i.e., 

Arizona Public Service, Salt River 

Project, Tucson Electric Power, and El 

Paso Electric) affected by this rule 

exceed this threshold. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It 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. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175. Although this proposed 

action affects a facility located in Indian 

country, the proposed limited revisions 

to existing provisions in the FIP for 

FCPP, and the incorporation of 

provisions into the FIP from a Consent 

Decree, which has already undergone 

public review and was the subject of 

tribal consultation, will not have 

substantial direct effects on any Indian 

tribes, on the relationship between the 

federal government and Indian tribes, or 

on the distribution of power and 

responsibilities between the federal 

government and Indian tribes. Thus, 

Executive Order 13175 does not apply 

to this action. However, we note that we 

have engaged in numerous discussions 

with the NNEPA during the 

development of this proposed rule and 

continue to invite consultation on this 

proposed action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 as applying 

only to those regulatory actions that 

concern health or safety risks that EPA 

has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This action involves technical 

standards. The technical standards in 

this action are based on the technical 

standards used in other rulemakings 

promulgated by the EPA. We refer to the 


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discussion of the technical standards 

and voluntary consensus standards in 

the final rule for 40 CFR part 60 subpart 

Da and 40 CFR part 63 subpart UUUUU 

at 77 FR 9304 at 9441 (February 16, 

2012). 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. If this rule is finalized as 

proposed, we expect that the limited 

revisions to the FIP will strengthen 

requirements for periods of startup, 

shutdown, and malfunction and will not 

relax any other existing requirements. 

Additional revisions related to 

streamlining of PM testing and 

providing options for PM and opacity 

testing that are in accordance with other 

rulemakings from the EPA will not 

affect air quality in the area surrounding 

FCPP. 

List of Subjects in 40 CFR Part 49 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Indians, Intergovernmental 

relations, Reporting and recordkeeping 

requirements, Startup shutdown and 

malfunction. 

Dated: November 22, 2016. 

Alexis Strauss, 

Acting Regional Administrator, Region IX. 

Chapter I, title 40, of the Code of 

Federal Regulations is proposed to be 

amended as follows: 

PART 49—INDIAN COUNTRY: AIR 

QUALITY PLANNING AND 

MANAGEMENT 

■ 1. The authority citation for part 49 

continues to read as follows: 

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

Subpart L—Implementation Plans for 

Tribes—Region IX 

■ 2. Section 49.5512 is amended by: 

■ a. Revising paragraph (a); 

■ b. Revising paragraph (c) introductory 

text; 

■ c. Removing and reserving paragraph 

(c)(1); 

■ d. Revising paragraph (c)(7); 

■ e. Revising paragraph (c)(12); 

■ f. Revising paragraph (c)(13); 

■ g. Revising paragraph (d) introductory 

text; 

■ h. Revising paragraph (d)(2); 

■ i. Removing and reserving paragraph 

(d)(3); 

■ j. Revising paragraph (d)(4); 

■ k. Revising paragraph (d)(5); 

■ l. Revising paragraph (e) introductory 

text; 

■ m. Revising paragraph (e)(1); 

■ n. Revising paragraph (e)(3); 

■ o. Revising paragraph (e)(6); 

■ p. Removing and reserving paragraph 

(e)(8); 

■ q. Revising paragraph (f) introductory 

text; 

■ r. Revising paragraph (f)(1); 

■ s. Revising paragraph (f)(3) 

introductory text; 

■ t. Revising paragraphs (f)(4)(i) 

introductory text, (f)(4)(i)(G) and (H) and 

(f)(4)(ii); 

■ u. Removing and reserving paragraphs 

(h)(2) and (3); 

■ v. Revising paragraph (i)(1); 

■ w. Revising paragraph (i)(2)(iii)(A); 

and 

■ x. Adding paragraph (k). 

The text to read as follows: 

§ 49.5512 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). Units 1, 2, and 3 

at the Four Corners Power Plant 

permanently ceased operation by 

January 1, 2014, pursuant to the 

requirements of paragraph (i)(3). 

* * * * * 

(c) Definitions. For the purposes of 

paragraphs (a)–(j): 

(1) [Reserved] 

* * * * * 

(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. 

* * * * * 

(12) Shutdown means the cessation of 

operation of any air pollution control 

equipment, process equipment, or 

process for any purpose. 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. For Units 4 or 

5, startup ends when the unit reaches 

400 MW net load. 

* * * * * 

(d) Emissions Standards and Control 

Measures. The following emission limits 

shall apply at all times. 

* * * * * 

(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). 

(3) [Reserved]. 

(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 percent opacity, averaged over 

any six (6) minute period, except for one 

six (6) minute period per hour of not 

more than 27 percent opacity. Any unit 

for which the owner or operator installs, 

calibrates, maintains, and operates 

particulate matter CEMS under 

paragraph (e)(3) of this section shall be 

exempt from this opacity standard in 

this paragraph (d)(4) and associated 

requirements in paragraphs (e) and (f) to 

demonstrate compliance with the 

opacity standard. 

(5) Oxides of nitrogen. No owner or 

operator shall discharge or cause the 

discharge of NOX into the atmosphere in 

excess of the amounts specified below. 

(i) 0.65 lb/MMBtu of heat input per 

unit averaged over any successive thirty 

(30) boiler operating-day period from 

Units 4 and 5; 

(ii) 335,000 lb per 24-hour period 

when coal-burning equipment is 

operating, on a plant-wide basis; for 

each hour when coal-burning 

equipment is not operating, this 

limitation shall be reduced. If the unit 

which is not operating is Unit 1, 2, or 

3, the limitation shall be reduced by 

1,542 lb per hour for each unit which 

is not operating. If the unit which is not 

operating is Unit 4 or 5, the limitation 

shall be reduced by 4,667 lb per hour for 

each unit which is not operating. 

(e) Testing and Monitoring. 

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. 

(1) The owner or operator shall 

maintain and operate CEMS for SO2, NO 

or NOX, and 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. 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 


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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. 

* * * * * 

(3) To assure continuous compliance 

with the particulate matter limits in 

paragraph (d)(2), the owner or operator 

shall either conduct particulate matter 

testing in accordance with the testing 

specifications outlined in Table 5 of 40 

CFR part 63 subpart UUUUU, or install, 

calibrate, operate, and maintain a 

continuous parametric monitoring 

system (CPMS) for that unit in 

accordance with 40 CFR part 63 subpart 

UUUUU, or install, calibrate, maintain, 

and operate particulate matter CEMS in 

accordance with 40 CFR part 63 subpart 

UUUUU. The owner or operator shall 

submit a written notification, in 

accordance with paragraph (f), of intent 

to demonstrate compliance with this 

paragraph by using a CPMS or PM 

CEMS. This notification shall be sent at 

least 30 calendar days before the initial 

startup of the monitor for compliance 

determination purposes. The owner or 

operator may discontinue operation of 

the monitor and instead return to 

demonstration of compliance with this 

paragraph using quarterly PM testing by 

submitting written notification, in 

accordance with paragraph (f), of such 

intent at least 30 calendar days before 

shutdown of the monitor for compliance 

determination purposes. Nothing in this 

paragraph replaces or supersedes the 

requirements for PM CEMS in the 

August 17, 2015 Consent Decree under 

paragraph (k). 

* * * * * 

(6) If the opacity standard in 

paragraph (d)(4) applies, the owner or 

operator shall demonstrate compliance 

with the opacity standard using one of 

the following options: 

(i) Operate Continuous Opacity 

Monitoring Systems (COMS) and 

maintain a set of opacity filters to be 

used as audit standards. Compliance 

with the opacity standard during 

periods of dry (unsaturated) stack 

conditions shall be determined using 

COMS. Compliance with the opacity 

standard during periods of wet 

(saturated) stack conditions shall be 

determined using visible emission 

performance testing specified in 40 CFR 

part 60 appendix A–4 Method 9 during 

the duration of the saturated stack 

condition, or 

(ii) Install, calibrate, operate, and 

maintain a continuous parametric 

monitoring system (CPMS) for that unit 

in accordance with 40 CFR part 63 

subpart UUUUU, including the 

requirements for the development of 

site-specific monitoring plans and 

recordkeeping and reporting; and 

conduct periodic performance testing of 

visible emissions using the procedures 

specified in paragraphs 40 CFR 

60.49Da(a)(3), or 

(iii) monitor performance of the 

baghouses using a bag leak detection 

system in accordance with 40 CFR 

60.48Da(o)(4), or an alternative bag leak 

detection system approved by the EPA, 

including requirements for the 

development of site-specific monitoring 

plans and recordkeeping and reporting; 

and conduct periodic performance 

testing of visible emissions using the 

procedures specified in paragraphs 40 

CFR 60.49Da(a)(3). 

* * * * * 

(8) [Reserved] 

(f) Reporting and Recordkeeping 

Requirements. All requests, reports, 

submittals, notifications, and other 

communications to the Regional 

Administrator or Administrator required 

by this paragraph (f) and references 

therein shall be submitted to the 

Director, Navajo Nation Environmental 

Protection Agency, P.O. Box 339, 

Window Rock, Arizona 86515, (928) 

871–7692, (928) 871–7996 (facsimile); to 

the Director, Air Division, U.S. 

Environmental Protection Agency, 

Region IX, to the attention of Mail Code: 

AIR–3, at 75 Hawthorne Street, San 

Francisco, California 94105, (415) 972– 

397490, (415) 947–3579 (facsimile); and 

to the Director, Enforcement Division, 

U.S. Environmental Protection Agency, 

to the attention of Mail Code ENF–2–1, 

at 75 Hawthorne Street, San Francisco, 

California, 94105, (415) 972–3982, or by 

email to r9.aeo@epa.gov. 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 and COMS compliance 

monitoring in 40 CFR 60.7(c) and (d), 

and for visible emissions testing, if 

applicable under paragraph (e)(6), 

record and report results of the test in 

accordance with 40 CFR 60.7(d). 

* * * * * 

(3) Furnish the Regional 

Administrator with reports describing 

the results of the particulate matter 

emissions tests postmarked within sixty 

(60) days of completing the tests. Each 

report shall include the following 

information: 

* * * * * 

(4) * * * 

(i) For excess emissions, the owner or 

operator shall notify the Regional 

Administrator by telephone or in 

writing within one business day (initial 

notification). A complete written report 

of the incident shall be submitted 

within ten (10) working days of the 

initial notification. The complete 

written report shall include: 

* * * * * 

(G) For an opacity exceedance, the 6- 

minute average opacity monitoring data 

or visible emission performance test 

results greater than 20 percent opacity 

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. 

(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. 

* * * * * 

(i) * * * 

(1) Particulate Matter from Units 4 

and 5 shall be limited to 0.015 lb/ 

MMBtu for each unit. Particulate matter 

testing shall be performed in accordance 

with paragraph (e)(3) of this section. 

(2) * * * 

(iii) * * * 

(A) Within 4 years of the effective 

date of this rule, FCPP shall have 

installed add-on post-combustion NOX

controls on at least 750 MW (net) of 

generation to meet the interim emission 

limit in paragraph (i)(2)(ii) of this 

section. 

* * * * * 

(k) Emission limitations from August 

17, 2015 Consent Decree. The emission 

limitations and other requirements from 

this paragraph (k), originally contained 

in a Consent Decree filed on August 17, 

2015 in the United States District Court 

for the District of New Mexico, are in 

addition to the requirements in 

paragraphs (a) through (j) of this section. 

(1) Definitions. Every term expressly 

defined in this paragraph (k) shall have 

the meaning given that term herein. 

Every other term used in this paragraph 


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(k) that is also a term used under the Act 

or in a federal regulation implementing 

the Act shall mean what such term 

means under the Act or those 

regulations. 

(i) A ‘‘30-Day Rolling Average NOX

Emission Rate’’ for a Unit shall be 

expressed in lb/MMBtu and calculated 

in accordance with the following 

procedure: First, sum the total pounds 

of NOX emitted from the Unit during the 

current Unit Operating Day and the 

previous twenty nine (29) Unit 

Operating Days; second, sum the total 

heat input to the Unit in MMBtu during 

the current Unit Operating Day and the 

previous twenty-nine (29) Unit 

Operating Days; and third, divide the 

total number of pounds of NOX emitted 

during the thirty (30) Unit Operating 

Days by the total heat input during the 

thirty (30) Unit Operating Days. A new 

30-Day Rolling Average NOX Emission 

Rate shall be calculated for each new 

Unit Operating Day. Each 30-Day 

Rolling Average NOX Emission Rate 

shall include all emissions that occur 

during all periods within any Unit 

Operating Day, including emissions 

from startup, shutdown, and 

Malfunction. 

(ii) A ‘‘30-Day Rolling Average SO2

Removal Efficiency’’ means the percent 

reduction in the mass of SO2 achieved 

by a Unit’s FGD system over a thirty (30) 

Unit Operating Day period and shall be 

calculated as follows: Step one, sum the 

total pounds of SO2 emitted as 

measured at the outlet of the FGD 

system for the Unit during the current 

Unit Operating Day and the previous 

twenty-nine (29) Unit Operating Days as 

measured at the outlet of the FGD 

system for that Unit; step two, sum the 

total pounds of SO2 delivered to the 

inlet of the FGD system for the Unit 

during the current Unit Operating Day 

and the previous twenty-nine (29) Unit 

Operating Days as measured at the inlet 

to the FGD system for that Unit (this 

shall be calculated by measuring the 

ratio of the lb/MMBtu SO2 inlet to the 

lb/MMBtu SO2 outlet and multiplying 

the outlet pounds of SO2 by that ratio); 

step three, subtract the outlet SO2

emissions calculated in step one from 

the inlet SO2 emissions calculated in 

step two; step four, divide the 

remainder calculated in step three by 

the inlet SO2 emissions calculated in 

step two; and step five, multiply the 

quotient calculated in step four by 100 

to express as a percentage of removal 

efficiency. A new 30-Day Rolling 

Average SO2 Removal Efficiency shall 

be calculated for each new Unit 

Operating Day, and shall include all 

emissions that occur during all periods 

within each Unit Operating Day, 

including emissions from startup, 

shutdown, and Malfunction. 

(iii) ‘‘Annual Tonnage Limitation’’ 

means the limitation on the number of 

tons of the pollutant in question that 

may be emitted from FCPP during the 

relevant calendar year (i.e., January 1 

through December 31), and shall 

include all emissions of the pollutant 

emitted during periods of startup, 

shutdown and Malfunction. 

(iv) ‘‘Baghouse’’ means a full stream 

(fabric filter) particulate emissions 

control device. 

(v) ‘‘Clean Air Act’’ and ‘‘the Act’’ 

mean the federal Clean Air Act, 42 

U.S.C. 7401–7671q, and its 

implementing regulations. 

(vi) ‘‘CEMS’’ and ‘‘Continuous 

Emission Monitoring System,’’ mean, 

for obligations involving the monitoring 

of NOX and SO2 emissions under this 

paragraph (k), the devices defined in 40 

CFR 72.2, and the SO2 monitors 

required by this paragraph (k) for 

determining compliance with the 30- 

Day Rolling Average SO2 Removal 

Efficiency requirement set forth in this 

paragraph (k). 

(vii) ‘‘Continuous Operation,’’ 

‘‘Continuously Operate,’’ and 

‘‘Continuously Operating’’ mean that 

when a pollution control technology or 

combustion control is required to be 

used at a Unit pursuant to this 

paragraph (k) (including, but not limited 

to, SCR, FGD, or Baghouse), it shall be 

operated at all times such Unit is in 

operation, consistent with the 

technological limitations, 

manufacturers’ specifications, good 

engineering and maintenance practices, 

and good air pollution control practices 

for minimizing emissions (as defined in 

40 CFR 60.11(d)) for such equipment 

and the Unit. 

(viii) ‘‘Day’’ means calendar day 

unless otherwise specified in this 

paragraph (k). 

(ix) ‘‘Emission Rate’’ means, for a 

given pollutant, the number of pounds 

of that pollutant emitted per million 

British thermal units of heat input (‘‘lb/ 

MMBtu’’), measured in accordance with 

this paragraph (k). 

(x) ‘‘Flue Gas Desulfurization System’’ 

and ‘‘FGD’’ mean a pollution control 

device that employs flue gas 

desulfurization technology, including 

an absorber utilizing lime slurry, for the 

reduction of SO2 emissions. 

(xi) ‘‘Fossil Fuel’’ means any 

hydrocarbon fuel, including coal, 

petroleum coke, petroleum oil, or 

natural gas. 

(xii) ‘‘lb/MMBtu’’ means one pound of 

a pollutant per million British thermal 

units of heat input. 

(xiii) ‘‘Make-Right Vendor Guarantee’’ 

means, for an SCR, a guarantee offered 

by an SCR vendor that covers the SCR, 

including the catalyst, ammonia 

injection system, and support structure, 

under operating conditions (excluding 

any Malfunctions) above minimum 

operating temperature for the SCR, the 

achievement of which is demonstrated 

solely during two performance tests: 

One performance test no later than 90 

Days after initial operation of the SCR, 

and one performance test after no fewer 

than 16,000 hours of SCR operation, but 

no later than December 31, 2020 

regardless of the number of operating 

hours achieved. If the SCR does not 

meet the guarantee in one of these two 

performance tests, a Make-Right Vendor 

Guarantee requires the SCR vendor to 

repair, replace, or correct the SCR to 

meet the specified guaranteed Emission 

Rate, which is demonstrated by 

successful achievement of a 

performance test. 

(xiv) ‘‘Malfunction’’ means any 

sudden, infrequent, and not reasonably 

preventable failure of air pollution 

control equipment, process equipment, 

or a process to operate in a normal or 

usual manner. Failures that are caused 

in part by poor maintenance or careless 

operation are not Malfunctions. 

(xv) ‘‘NOX Allowance’’ means an 

authorization or credit to emit a 

specified amount of NOX that is 

allocated or issued under an emissions 

trading or marketable permit program of 

any kind established under the Clean 

Air Act or an applicable implementation 

plan. Although no NOX Allowance 

program is applicable to FCPP as of the 

promulgation of this paragraph (k), this 

definition of ‘‘NOX Allowance’’ includes 

authorizations or credits that may be 

allocated or issued under emissions 

trading or marketable permit programs 

that may become applicable to FCPP in 

the future. 

(xvi) ‘‘Operating Day’’ means any Day 

on which a Unit fires Fossil Fuel. 

(xvii) ‘‘PM’’ means total filterable 

particulate matter, measured in 

accordance with the provisions of this 

paragraph (k). 

(xviii) ‘‘PM CEMS’’ and ‘‘PM 

Continuous Emission Monitoring 

System’’ mean, for obligations involving 

the monitoring of PM emissions under 

this paragraph (k), the equipment that 

samples, analyzes, measures, and 

provides, by readings taken at frequent 

intervals, an electronic and/or paper 

record of PM emissions. 

(xix) ‘‘Removal Efficiency’’ means, for 

a given pollutant, the percentage of that 

pollutant removed by the applicable 

emission control device, measured in 


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accordance with the provisions of this 

paragraph (k). 

(xx) ‘‘Selective Catalytic Reduction’’ 

and ‘‘SCR’’ mean a pollution control 

device that destroys NOX by injecting a 

reducing agent (e.g., ammonia) into the 

flue gas that, in the presence of a 

catalyst (e.g., vanadium, titanium, or 

zeolite), converts NOX into molecular 

nitrogen and water. 

(xxi) ‘‘Semi-annual reports’’ are 

periodic reports that are submitted to 

EPA within 60 days after the end of 

each half of the calendar year. 

(xxii) ‘‘SO2 Allowance’’ means an 

authorization to emit a specified amount 

of SO2 that is allocated or issued under 

an emissions trading or marketable 

permit program of any kind established 

under the Clean Air Act or an applicable 

implementation plan, including as 

defined at 42 U.S.C. 7651a(3). 

(xxiii) ‘‘Surrender’’ means to 

permanently surrender SO2 Allowances 

so that such SO2 Allowances can never 

be used to meet any compliance 

requirement under the Clean Air Act or 

this paragraph (k). 

(xxiv) ‘‘Unit’’ means, solely for 

purposes of this paragraph (k), 

collectively, the coal pulverizer, 

stationary equipment that feeds coal to 

the boiler, the boiler that produces 

steam for the steam turbine, the steam 

turbine, the generator, equipment 

necessary to operate the generator, 

steam turbine and boiler, and all 

ancillary equipment, including 

pollution control equipment, at or 

serving a coal-fired steam electric 

generating unit at FCPP. 

(xxv) ‘‘Wet Stack’’ means a stack 

designed to be capable of use with a 

saturated gas stream constructed with 

liner material(s) consisting of one or 

more of the following: Carbon steel with 

a protective lining (organic resin, 

fluoroelastomers, borosilicate glass 

blocks or a thin cladding of a corrosionresistant alloy), fiberglass-reinforced 

plastic, solid corrosion-resistant alloy, 

or acid-resistant brick and mortar. 

(2) NOX Emission Limitations and 

Control Requirements. (i) The owner or 

operator shall install and commence 

Continuous Operation of an SCR on or 

FCPP Unit 5 by no later than March 31, 

2018. Commencing no later than 30 

Operating Days thereafter, the owner or 

operator shall Continuously Operate the 

SCR so as to achieve and maintain a 30- 

Day Rolling Average NOX Emission Rate 

of no greater than 0.080 lb/MMBtu, 

subject to the petition process paragraph 

(k)(2)(iii). 

(ii) The owner or operator shall install 

and commence Continuous Operation of 

an SCR on the FCPP Unit 4 by no later 

than July 31, 2018. Commencing no 

later than 30 Operating Days thereafter, 

the owner or operator shall 

Continuously Operate the SCR so as to 

achieve and maintain a 30-Day Rolling 

Average NOX Emission Rate of no 

greater than 0.080 lb/MMBtu, subject to 

the petition process in paragraph 

(k)(2)(iii). 

(iii) At any time after March 31, 2019 

but before December 31, 2020, the 

owner or operator may submit to EPA a 

petition for a proposed revision to the 

30-Day Rolling Average NOX Emission 

Rate of 0.080 lb/MMBtu for either or 

both of the FCPP Units. The petition 

must demonstrate all of the following: 

(A) That the design of the SCR system 

met the following parameters: 

(1) The SCR system was designed to 

meet a NOX emission rate of 0.049 lb/ 

MMBtu, on an hourly average basis, 

under normal operating conditions once 

the minimum operating temperature of 

the SCR catalyst is achieved; and 

(2) The owner or operator obtained a 

Make-Right Vendor Guarantee for a NOX

emission rate of 0.049 lb/MMBtu; 

(B) That best efforts have been taken 

to achieve the 30-Day Rolling Average 

NOX Emission Rate of 0.080 lb/MMBtu. 

Best efforts include but are not limited 

to exhausting the Make-Right Vendor 

Guarantee and obtaining independent 

outside support from a registered 

professional engineer expert in SCR 

design. To demonstrate best efforts have 

been taken, the petition shall also 

include: 

(1) The request for bid for the subject 

SCR; 

(2) Winning bid documents, including 

all warranties and design information; 

(3) NOX, NH3, and heat rate CEMS 

data and all related stack tests; 

(4) Daily coal quality data, including 

sulfur, ash, and heat content; 

(5) Operating and maintenance logs 

documenting all exceedances of the 

0.080 lb/MMBtu 30-Day Rolling Average 

NOX Emission Rate and measures taken 

to correct them; 

(6) Vendor certification pursuant to a 

Make-Right Vendor Guarantee that the 

0.080 lb/MMBtu 30-Day Rolling Average 

NOX Emission Rate cannot be met by 

the SCR as designed; 

(7) A signed and sealed report by a 

registered professional engineer expert 

in SCR design confirming the 0.080 lb/ 

MMBtu 30-Day Rolling Average NOX

Emission Rate cannot be met by the SCR 

as designed; and 

(8) Affidavits documenting causes of 

failure to meet the 0.080 lb/MMBtu 30- 

Day Rolling Average NOX Emission 

Rate, signed and sealed by a licensed 

professional engineer; 

(C) That the SCR system was properly 

operated and maintained pursuant to 

the manufacturer’s specifications for 

achieving and Continuously Operating 

to meet the design NOX emission rate of 

0.049 lb/MMBtu; and 

(D) That the owner or operator 

Continuously Operated the SCR and 

maximized the percent of flue gas or 

water bypassed around the economizer 

during any startup and shutdown events 

in a manner to attain minimum 

operating temperature as quickly as 

reasonably possible during startup and 

to maintain minimum operating 

temperature during shutdowns as long 

as reasonably possible; 

(E) That the owner or operator 

Continuously Operated the SCR and 

controlled the percent of flue gas or 

water bypassed around the economizer 

to maintain minimum operating 

temperature during load changes. 

(iv) In any petition submitted 

pursuant to paragraph (k)(2)(iii), the 

owner or operator shall include an 

alternate 30-Day Rolling Average NOX

Emission Rate, but in no event may the 

owner or operator propose a 30-Day 

Rolling Average NOX Emission Rate 

more than 0.085 lb/MMBtu. The owner 

or operator shall also submit all studies, 

reports, and/or recommendations from 

the vendor and contractor(s) required by 

this paragraph and paragraph (k)(2)(iii), 

evaluating each measure undertaken in 

an effort to meet a 30-Day Rolling 

Average NOX Emission Rate of no 

greater than 0.080 lb/MMBtu. The 

owner or operator shall also deliver 

with each submission all pertinent 

documents and data that support or 

were considered in preparing such 

submission, as well as all data 

pertaining to the performance of the 

SCR in question since August 17, 2015 

and the operational history of the Unit 

since August 17, 2015. 

(v) In addition to meeting the 

emissions rates set forth in paragraphs 

(k)(2)(i) and (k)(2)(ii), all Units at FCPP, 

collectively, shall not emit NOX in 

excess of the following Annual Tonnage 

Limitation: 31,060 tons of NOX per year 

in 2016 and 2017; 12,165 tons of NOX

per year in 2018; and 4,968 tons of NOX

per year in 2019 and thereafter. 

However, if the 30-Day Rolling Average 

NOX Emission Rate of 0.080 lb/MMBtu 

required under Paragraphs (k)(2)(i) and 

(k)(2)(ii) is revised pursuant to the 

petition process set forth in paragraphs 

(k)(2)(iii) and (k)(2)(iv), the annual NOX

tonnage limitations set forth as follows 

shall increase by the ratio of the new 

NOX rate in lb/MMBtu determined 

pursuant to paragraphs (k)(2)(iii) and 

(k)(2)(iv) divided by 0.080 lb/MMBtu. 

(vi) In determining the 30-Day Rolling 

Average NOX Emission Rate, the owner 

or operator shall use CEMS in 


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accordance with the procedures of 40 

CFR part 75, except that NOX emissions 

data for the 30-Day Rolling Average 

NOX Emission Rate need not be bias 

adjusted and the missing data 

substitution procedures of 40 CFR part 

75 shall not apply. Diluent capping (i.e., 

5 percent CO2) will be applied to the 

NOX emission calculation for any hours 

where the measured CO2 concentration 

is less than 5 percent following the 

procedures in 40 CFR part 75, Appendix 

F, Section 3.3.4.1. The owner or 

operator shall report semiannually all 

hours where diluent capping procedures 

were applied during the reporting 

period. 

(vii) For purposes of determining 

compliance with the Annual Tonnage 

Limitations in paragraph (k)(2)(v), the 

owner or operator shall use CEMS in 

accordance with the procedures 

specified in 40 CFR part 75. 

(viii) The owner or operator shall not 

sell, trade, or transfer any surplus NOX

Allowances allocated to FCPP that 

would otherwise be available for sale or 

trade as a result of the actions taken by 

the owner or operator to comply with 

the requirements of this rule. 

(3) SO2 Emission Limitations and 

Control Requirements. (i) Beginning on 

August 17, 2015, the owner or operator 

shall continuously operate the existing 

FGDs at FCPP Unit 4 and Unit 5 so as 

to emit SO2 from FCPP at an amount no 

greater than 10.0 percent of the potential 

combustion concentration assuming all 

of the sulfur in the coal is converted to 

SO2. Compliance with this emissions 

standard shall be determined on a 

rolling 365-Operating Day basis using 

the applicable methodologies set forth 

in paragraph (e)(2) of this section. The 

first day for determining compliance 

with this emissions standard shall be 

365 Days after August 17, 2015. The 

requirements of this paragraph shall 

remain in effect until the owner or 

operator achieve compliance with the 

requirements set forth in paragraphs 

(k)(3)(ii) and (k)(3)(iii). 

(ii) By no later than March 31, 2018, 

the owner or operator shall convert the 

existing ductwork and stack at FCPP 

Unit 5 to a Wet Stack, so as to eliminate 

the need to bypass flue gas around the 

FGD absorbers for reheat purposes. 

Commencing no later than 30 Operating 

Days thereafter, the owner or operator 

shall continuously operate the existing 

FGD at FCPP Unit 5 so as to achieve and 

maintain a 30-Day Rolling Average SO2

Removal Efficiency of at least 95.0 

percent. 

(iii) By no later than July 31, 2018, the 

owner or operator shall convert the 

existing ductwork and stack at FCPP 

Unit 4 to a Wet Stack, so as to eliminate 

the need to bypass flue gas around the 

FGD absorbers for reheat purposes. 

Commencing no later than 30 Operating 

Days thereafter, the owner or operator 

shall Continuously Operate the existing 

FGD at FCPP Unit 4 so as to achieve and 

maintain a 30-Day Rolling Average SO2

Removal Efficiency of at least 95.0 

percent. 

(iv) In addition to meeting the 

emission rates set forth in paragraphs 

(k)(3)(i), (k)(3)(ii) and (k)(3)(iii), all Units 

at FCPP, collectively, shall not emit SO2

in excess of the following Annual 

Tonnage Limitations: 13,300 tons of SO2

per year in 2016 and 2017; 8,300 tons 

of SO2 per year in 2018; 6,800 tons of 

SO2 per year in 2019 and thereafter. 

(v) By each of the dates by which the 

owner or operator must comply with the 

30-Day Rolling Average SO2 Removal 

Efficiency required under paragraphs 

(k)(3)(ii) and (k)(3)(iii), the owner or 

operator shall install, certify, maintain, 

and operate FGD inlet SO2 and any 

associated diluent CEMS with respect to 

that Unit in accordance with the 

requirements of paragraph (e)(1) of this 

section. 

(vi) In determining the 30-Day Rolling 

Average SO2 Removal Efficiency, the 

owner or operator shall use CEMS in 

accordance with the procedures of 40 

CFR part 75, except that SO2 emissions 

data for the 30-Day Rolling Average SO2

Removal Efficiency need not be bias 

adjusted, and the missing data 

substitution procedures of 40 CFR part 

75 shall not apply. Diluent capping (i.e., 

5 percent CO2) will be applied to the 

SO2 emission calculation for any hours 

where the measured CO2 concentration 

is less than 5 percent following the 

procedures in 40 CFR part 75, Appendix 

F, Section 3.3.4.1. The owner or 

operator shall submit a semi-annual 

report that includes all hours where 

diluent capping procedures were 

applied during the reporting period. 

(vii) For purposes of determining 

compliance with the Annual Tonnage 

Limitations in paragraph (k)(3)(iv), the 

owner or operator shall use CEMS in 

accordance with the procedures 

specified in 40 CFR part 75. 

(4) Use and Surrender of SO2

Allowances. (i) The owner or operator 

shall not use SO2 Allowances to comply 

with any requirement of paragraph (k), 

including by claiming compliance with 

any emission limitation required 

paragraph (k) by using, tendering, or 

otherwise applying SO2 Allowances to 

offset any excess emissions. 

(ii) Except as provided in paragraph 

(k), the owner or operator shall not sell, 

bank, trade, or transfer any SO2

Allowances allocated to FCPP. 

(iii) Beginning with calendar year 

2015, and continuing each calendar year 

thereafter, the owner or operator shall 

surrender to EPA, or transfer to a nonprofit third party selected by the owner 

or operator for Surrender, all SO2

Allowances allocated to FCPP for that 

calendar year that the owner or operator 

does not need in order to meet their 

own federal and/or state Clean Air Act 

statutory or regulatory requirements for 

the FCPP Units. 

(iv) Nothing in paragraph (k)(4) shall 

prevent the owners or operator from 

purchasing or otherwise obtaining SO2

Allowances from another source for 

purposes of complying with Clean Air 

Act requirements to the extent 

otherwise allowed by law. 

(v) For any given calendar year, 

provided that FCPP is in compliance for 

that calendar year with all emissions 

limitations for SO2 set forth in this 

section, nothing in paragraph (k), 

including the provisions of paragraphs 

(k)(4)(ii) and (k)(4)(iii) pertaining to the 

Use and Surrender of SO2 Allowances, 

shall preclude the owner or operator 

from selling, trading, or transferring SO2

Allowances allocated to FCPP that 

become available for sale or trade that 

calendar year solely as a result of: 

(A) The installation and operation of 

any pollution control technology or 

technique at Unit 4 or Unit 5 that is not 

otherwise required by paragraph (k); or 

(B) Achievement and maintenance of 

a 30-Day Rolling Average SO2 Removal 

Efficiency at Unit 4 or Unit 5 at a higher 

removal efficiency than the 30-Day 

Rolling Average SO2 Removal Efficiency 

required by paragraph (k)(3); so long as 

the owner or operator submits a semiannual report of the generation of such 

surplus SO2 Allowances that occur after 

August 17, 2015. 

(vi) The owner or operator shall 

Surrender, or transfer to a non-profit 

third party selected by the owner or 

operator for Surrender, all SO2

Allowances required to be Surrendered 

pursuant to paragraph (k)(4)(iii) by April 

30 of the immediately following 

calendar year. Surrender need not 

include the specific SO2 Allowances 

that were allocated to FCPP, so long as 

the owner or operator Surrender SO2

Allowances that are from the same year 

and that are equal to the number 

required to be Surrendered under 

paragraph (k)(4)(vii). 

(vii) If any SO2 Allowances are 

transferred directly to a non-profit third 

party, the owner or operator shall 

include a description of such transfer in 

the next semi-annual report submitted 

to EPA. Such report shall: 

(A) Provide the identity of the nonprofit third-party recipient(s) of the SO2


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87002 Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Proposed Rules 

Allowances and a listing of the serial 

numbers of the transferred SO2

Allowances; and 

(B) Include a certification by the 

third-party recipient(s) certifying under 

the penalty of law that the recipient(s) 

will not sell, trade, or otherwise 

exchange any of the allowances and will 

not use any of the SO2 Allowances to 

meet any obligation imposed by any 

environmental law. The certification 

must also include a statement that the 

recipient understands that there are 

significant penalties for submitting 

false, inaccurate or incomplete 

information to the United States. 

(C) No later than the third semiannual report due after the transfer of 

any SO2 Allowances, the owner or 

operator shall include a statement that 

the third-party recipient(s) Surrendered 

the SO2 Allowances for permanent 

Surrender to EPA in accordance with 

the provisions of paragraph (k)(4)(ix) 

within one (1) year after the owner or 

operator transferred the SO2 Allowances 

to them. The owner or operator shall not 

have complied with the SO2 Allowance 

Surrender requirements of subparagraph 

(k)(4)(viii) until all third-party 

recipient(s) shall have actually 

Surrendered the transferred SO2

Allowances to EPA. 

(viii) For all SO2 Allowances 

Surrendered to EPA, the owner or 

operator or the third-party recipient(s) 

(as the case may be) shall first submit an 

SO2 Allowance transfer request form to 

the EPA Office of Air and Radiation’s 

Clean Air Markets Division directing the 

transfer of such SO2 Allowances to the 

EPA Enforcement Surrender Account or 

to any other EPA account that EPA may 

direct in writing. Such SO2 Allowance 

transfer requests may be made in an 

electronic manner using the EPA’s 

Clean Air Markets Division Business 

System or similar system provided by 

EPA. As part of submitting these 

transfer requests, the owner or operator 

or the third-party recipient(s) shall 

irrevocably authorize the transfer of 

these SO2 Allowances and identify—by 

name of account and any applicable 

serial or other identification numbers or 

station names—the source and location 

of the SO2 Allowances being 

Surrendered. 

(5) PM Emission Reduction 

Requirements. 

(i) The owner or operator shall 

operate each FCPP Unit in a manner 

consistent with good air pollution 

control practice for minimizing PM 

emissions, as set forth in paragraph (g). 

In addition, with respect to FCPP Units 

4 and 5, the owner or operator shall, at 

a minimum, to the extent practicable: 

(A) Operate each compartment of the 

Baghouse for each Unit (except the 

compartment provided as a spare 

compartment under the design of the 

baghouse), regardless of whether those 

actions are needed to comply with 

opacity limits; 

(B) Repair any failed Baghouse 

compartment at the next planned Unit 

outage (or unplanned outage of 

sufficient length); 

(C) Maintain and replace bags on each 

Baghouse as needed to achieve the 

required collection efficiency; 

(D) Inspect for and repair during the 

next planned Unit outage (or unplanned 

outage of sufficient length) any openings 

in Baghouse casings, ductwork, and 

expansion joints to minimize air 

leakage; and 

(E) Ensure that a bag leak detection 

program is developed and implemented 

to detect leaks and promptly repair any 

identified leaks. 

(ii) The owner or operator shall 

Continuously Operate a Baghouse at 

FCPP Unit 4 and Unit 5 so as to achieve 

and maintain a filterable PM Emission 

Rate no greater than 0.0150 lb/MMBtu. 

(iii) Once in each calendar year, the 

owner or operator shall conduct stack 

tests for PM at FCPP Units 4 and 5. 

Alternatively, following the installation 

and operation of PM CEMS as required 

by paragraph (k)(6), the owner or 

operator may seek written approval to 

forego stack testing and instead 

demonstrate continuous compliance 

with an applicable filterable PM 

Emission Rate using CEMS on a 24-hour 

rolling average basis. 

(iv) Unless EPA approves a request to 

demonstrate continuous compliance 

using CEMS under paragraph (k)(5)(iii) 

to determine compliance with the PM 

Emission Rate established in 

subparagraph (k)(5)(ii), the owner or 

operator shall use the reference methods 

and procedures (filterable portion only) 

specified in 40 CFR part 60, App. A–3, 

Method 5, Method 5 as described in 

subpart UUUUU, Table 5, or App. A–6, 

Method 17 (provided that Method 17 

shall only be used for stack tests 

conducted prior to conversion of an 

FCPP Unit to a Wet Stack), or alternative 

stack tests or methods that are requested 

by the owner or operator and approved 

by EPA. Each test shall consist of three 

separate runs performed under 

representative operating conditions not 

including periods of startup, shutdown, 

or Malfunction. The sampling time for 

each run shall be at least 120 minutes 

and the volume of each run shall be at 

least 1.70 dry standard cubic meters (60 

dry standard cubic feet). The owner or 

operator shall calculate the PM 

Emission Rate from the stack test results 

in accordance with 40 CFR 60.8(f). The 

results of each PM stack test shall be 

submitted to EPA and NNEPA within 60 

Days of completion of each test. 

(v) Once each calendar year, the 

owner or operator shall conduct a PM 

stack test for condensable PM at FCPP 

Units 4 and 5, using the reference 

methods and procedures set forth at 40 

CFR part 51, Appendix M, Method 202 

and as set forth in paragraph (vi). This 

test shall be conducted under as similar 

operating conditions and as close in 

time as reasonably possible as the test 

for filterable PM in paragraph (k)(5)(iv). 

Each test shall consist of three separate 

runs performed under representative 

operating conditions not including 

periods of startup, shutdown, or 

Malfunction. The sampling time for 

each run shall be at least 120 minutes 

and the volume of each run shall be at 

least 1.70 dry standard cubic meters (60 

dry standard cubic feet). The owner or 

operator shall calculate the number of 

pounds of condensable PM emitted in 

lb/MMBtu of heat input from the stack 

test results in accordance with 40 CFR 

60.8(f). The results of the PM stack test 

conducted pursuant to this paragraph 

shall not be used for the purpose of 

determining compliance with the PM 

Emission Rates required by paragraph 

(k). The results of each PM stack test 

shall be submitted to EPA within sixty 

(60) Days of completion of each test. If 

EPA approves a request to demonstrate 

continuous compliance with an 

applicable PM Emission Rate at a Unit 

using PM CEMS under paragraph 

(k)(5)(iii), annual stack testing for 

condensable PM using the reference 

methods and procedures set forth at 40 

CFR part 51, Appendix M, Method 202 

is not required for that Unit. 

(6) PM CEMS. (i) The owner or 

operator shall install, correlate, 

maintain, and operate a PM CEMS for 

FCPP Unit 4 and FCPP Unit 5 as 

specified below. The PM CEMS shall 

comprise a continuous-particle mass 

monitor measuring particulate matter 

concentration, directly or indirectly, on 

an hourly average basis and a diluent 

monitor used to convert the 

concentration to units expressed in lb/ 

MMBtu. The PM CEMS installed at each 

Unit must be appropriate for the 

anticipated stack conditions and 

capable of measuring PM concentrations 

on an hourly average basis. Each PM 

CEMS shall complete a minimum of one 

cycle of operations (sampling, analyzing 

and data recording) for each successive 

15-minute period. The owner or 

operator shall maintain, in an electronic 

database, the hourly-average emission 

values of all PM CEMS in lb/MMBtu. 

Except for periods of monitor 


jstallworth on DSK7TPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 232 / Friday, December 2, 2016 / Proposed Rules 87003 

malfunction, maintenance, or repair, the 

owner or operator shall continuously 

operate the PM CEMS at all times when 

the Unit it serves is operating. 

(ii) By no later than February 16, 

2017, the owner or operator shall ensure 

that the PM CEMS are installed, 

correlated, maintained and operated at 

FCPP Units 4 and 5. 

(iii) The owner or operator shall 

ensure that performance specification 

tests on the PM CEMS are conducted 

and shall ensure compliance with the 

PM CEMS installation plan and QA/QC 

protocol submitted to and approved by 

EPA. The PM CEMS shall be operated 

in accordance with the approved plan 

and QA/QC protocol. 

(iv) The data recorded by the PM 

CEMS during Unit operation, expressed 

in lb/MMBtu on a 3-hour, 24-hour, and 

30-Day rolling average basis, shall be 

included in the semiannual report 

submitted to EPA in electronic format 

(Microsoft Excel-compatible). 

(v) Notwithstanding any other 

provision of paragraph (k), exceedances 

of the PM Emission Rate that occur as 

a result of detuning emission controls as 

required to achieve the high-level PM 

test runs during the correlation testing 

shall not be considered a violation of 

the requirements of this section 

provided that the owner or operator 

made best efforts to keep the high-level 

PM test runs during such correlation 

testing below the applicable PM 

Emission Rate. 

(vi) Stack testing conducted pursuant 

to paragraph (k)(5)(iv) shall be the 

compliance method for the PM 

Emission Rates established by paragraph 

(k)(5), unless EPA approves a request 

under paragraph (k)(5)(iii), in which 

case PM CEMS shall be used to 

demonstrate continuous compliance 

with an applicable PM Emission Rate on 

a 24-hour rolling average basis. Data 

from PM CEMS shall be used, at a 

minimum, to monitor progress in 

reducing PM emissions on a continuous 

basis. 

(7) Reporting. The owner or operator 

shall submit all notifications, petitions, 

and reports under paragraph (k), unless 

otherwise specified, to EPA and NNEPA 

in accordance with paragraph (f). 

[FR Doc. 2016–28870 Filed 12–1–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2016–0069; FRL–9955–22– 

OAR] 

RIN 2060–AT17 

Revisions to Method 301: Field 

Validation of Pollutant Measurement 

Methods From Various Waste Media 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: In this action, the 

Environmental Protection Agency (EPA) 

proposes editorial and technical 

revisions to the EPA’s Method 301 

‘‘Field Validation of Pollutant 

Measurement Methods from Various 

Waste Media’’ in order to correct and 

update the method. In addition, the EPA 

is clarifying the applicability of Method 

301 as well as its utility to other 

regulatory provisions. The proposed 

revisions include ruggedness testing for 

validation of test methods for 

application at multiple sources, 

determination of limit of detection for 

all method validations, incorporating 

procedures for determining the limit of 

detection, revising the sampling 

requirements for the comparison 

procedure, adding storage and sampling 

procedures for sorbent sampling 

systems, and clarifying acceptable 

statistical results for candidate test 

methods. We also propose to clarify the 

applicability of Method 301 to our 

regulations and to add equations to 

clarify calculation of the correction 

factor, standard deviation, estimated 

variance of a validated test method, 

standard deviation of differences, and tstatistic for all validation approaches. 

Changes made to the Method 301 field 

validation protocol under this proposed 

action would apply only to methods 

submitted to the EPA for approval after 

the effective date of this action. 

DATES: Comments. Comments must be 

received on or before January 31, 2017. 

Public Hearing. If anyone contacts the 

EPA requesting a public hearing by 

December 12, 2016, the EPA will hold 

a public hearing on January 3, 2017 

from 1:00 p.m. (Eastern Standard Time) 

to 5:00 p.m. (Eastern Standard Time) at 

the U.S. Environmental Protection 

Agency building located at 109 T.W. 

Alexander Drive, Research Triangle 

Park, NC 27711. Information regarding a 

hearing will be posted at http://

www3.epa.gov/ttn/emc/methods/. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2016–0069, to the Federal 

eRulemaking Portal: http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or withdrawn. The EPA may 

publish any comment received to its 

public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, 

video, etc.) must be accompanied by a 

written comment. The written comment 

is considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the Web, 

Cloud, or other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: For 

information concerning this proposal, 

contact Ms. Kristen J. Benedict, Office of 

Air Quality Planning and Standards, Air 

Quality Assessment Division (E143–02), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–1394; fax 

number: (919) 541–0516; email address: 

benedict.kristen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments? 

C. Where can I get a copy of this document 

and other related information? 

II. Background 

III. Summary of Proposed Revisions 

A. Technical Revisions 

B. Clarifying and Editorial Changes 

IV. Request for Comments 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

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 


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