```

[Federal Register Volume 81, Number 232 (Friday, December 2, 2016)]
[Proposed Rules]
[Pages 86988-87003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28870]

=======================================================================
-----------------------------------------------------------------------

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.

[[Page 86989]]

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/commenting-epa-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.
---------------------------------------------------------------------------

    \1\ See 72 FR 25698 (May 7, 2007) and 77 FR 51620 (August 24, 
2012).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \2\ See 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \3\ See 72 FR 25705 (May 7, 2007) and 40 CFR 49.5512(h)(2) and 
(h)(3), and 40 CFR 49.5512(c)(7).
    \4\ See 80 FR 33840 (June 12, 2015).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \5\ See 77 FR 9303 (February 16, 2012) and 81 FR 20172 (April 6, 
2016) (Final Technical Corrections).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \6\ See 77 FR 51620 (August 24, 2012) and 40 CFR 49.5512(i)(3).
---------------------------------------------------------------------------

    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

[[Page 86990]]

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.
---------------------------------------------------------------------------

    \7\ FCPP 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.
    \8\ APS 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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \9\ See 40 CFR 81.332.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \10\ See 40 U.S.C. 7601(d).
    \11\ See 40 CFR parts 9, 35, 49, 50 and 81. See also 63 FR 7254 
(February 12, 1998).
    \12\ See 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \13\ See 59 FR 43956 (August 25, 1994); 63 FR 7253 (February 12, 
1998).
    \14\ See 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)).
    \15\ See 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \16\ See 64 FR 48731 (September 8, 1999).
    \17\ Id. at 48733.
---------------------------------------------------------------------------

    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 road-sweeping 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.
---------------------------------------------------------------------------

    \18\ See 72 FR 25698 (May 7, 2007), codified at 40 CFR 
49.5512(a)-(h).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \19\ See 77 FR 51620 (August 24, 2012).
    \20\ For 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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \21\ The 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).
---------------------------------------------------------------------------

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

[[Page 86991]]

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.
---------------------------------------------------------------------------

    \22\ See ``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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \23\ See document titled ``2016_1118 FCPP FIP existing reg text 
RLSO'' in the docket for this proposed rulemaking.
---------------------------------------------------------------------------

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

[[Page 86992]]

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.
---------------------------------------------------------------------------

    \24\ See 40 CFR 49.5512(i)(2) and (3). See also 77 FR 51620 
(August 24, 2012).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \25\ See NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
    \26\ See 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.''
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \27\ See, 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.
---------------------------------------------------------------------------

    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,

[[Page 86993]]

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.
---------------------------------------------------------------------------

    \28\ Arizona Public Service Company v. EPA et al., 562 F.3d 
1116, Case No. 07-9546, (10th Circuit, Apr. 14, 2009).
    \29\ See 73 FR 67107 (November 13, 2008).
    \30\ See 75 FR 64211 (October 19, 2010) and 77 FR 51620 (August 
12, 2012).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \31\ See 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.
    \32\ See 40 CFR part 60 subpart Da 60.49Da(a).
    \33\ See 40 CFR part 75 subpart B at 75.14.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \34\ See 72 FR 25698 at 25701 (May 7, 2007).
    \35\ We 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).
    \36\ See 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \37\ See also 77 FR 9304 (February 16, 2012).
    \38\ See, 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.
---------------------------------------------------------------------------

    As discussed elsewhere in this proposed rule, the Consent Decree 
requires the operator of FCPP, by early 2017, to install PM CEMS and, 
by mid-2018, 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

[[Page 86994]]

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.
---------------------------------------------------------------------------

    \39\ See 40 CFR 60.49Da(2)(i) and 60.49Da(a)(4)(ii).
    \40\ Under 40 CFR 60.13(h)(3)(i), the Administrator may approve 
alternatives to any monitoring procedures or requirements of part 
60.
---------------------------------------------------------------------------

    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

[[Page 86995]]

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 add-on 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

[[Page 86996]]

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

[[Page 86997]]

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

0
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

0
2. Section 49.5512 is amended by:
0
a. Revising paragraph (a);
0
b. Revising paragraph (c) introductory text;
0
c. Removing and reserving paragraph (c)(1);
0
d. Revising paragraph (c)(7);
0
e. Revising paragraph (c)(12);
0
f. Revising paragraph (c)(13);
0
g. Revising paragraph (d) introductory text;
0
h. Revising paragraph (d)(2);
0
i. Removing and reserving paragraph (d)(3);
0
j. Revising paragraph (d)(4);
0
k. Revising paragraph (d)(5);
0
l. Revising paragraph (e) introductory text;
0
m. Revising paragraph (e)(1);
0
n. Revising paragraph (e)(3);
0
o. Revising paragraph (e)(6);
0
p. Removing and reserving paragraph (e)(8);
0
q. Revising paragraph (f) introductory text;
0
r. Revising paragraph (f)(1);
0
s. Revising paragraph (f)(3) introductory text;
0
t. Revising paragraphs (f)(4)(i) introductory text, (f)(4)(i)(G) and 
(H) and (f)(4)(ii);
0
u. Removing and reserving paragraphs (h)(2) and (3);
0
v. Revising paragraph (i)(1);
0
w. Revising paragraph (i)(2)(iii)(A); and
0
x. Adding paragraph (k).
    The text to read as follows:

Sec.  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

[[Page 86998]]

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

[[Page 86999]]

(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

[[Page 87000]]

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 corrosion-resistant 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

[[Page 87001]]

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 non-profit 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 semi-annual 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 non-profit third-party recipient(s) 
of the SO2

[[Page 87002]]

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 semi-annual 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

[[Page 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
```