[Federal Register Volume 64, Number 173 (Wednesday, September 8, 1999)]
[Proposed Rules]
[Pages 48725-48731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23276]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 49 and 52

[FRL-6432-8]


Source Specific Federal Implementation Plan for Navajo Generating 
Station; Navajo Nation

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to 
promulgate a source-specific Federal Implementation Plan (FIP) to 
regulate emissions from the Navajo Generating Station (NGS), a coal-
fired power plant located on the Navajo Indian Reservation near Page, 
Arizona.

DATES: Comments must be received on or before October 8, 1999.

ADDRESSES: Written comments should be addressed to: Douglas K. 
McDaniel, Air Division (AIR-8), U.S. EPA Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901.

FOR FURTHER INFORMATION CONTACT: Douglas K. McDaniel, Air Division 
(AIR-8), U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901, (415) 744-1246.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Action
    B. Facility
    C. Attainment
    D. Visibility
    E. Jurisdictional Issue
II. Basis for Proposed Action
    A. EPA's Authority to Promulgate a FIP in Indian Country
    B. Relation to Tribal Authority Rule
III. Navajo Generating Station--Facility Description
IV. Summary of FIP Provisions
    A. State Standards
    B. Visibility FIP
    C. Acid Rain Requirements
    D. Proposed FIP Standards
    E. Summary of Changes from State Standards
    F. Compliance Schedule
V. Solicitation of Comments
VI. Administrative Requirements
    A. Executive Order 12866
    B. Regulatory Flexibility
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Executive Order 12875: Enhancing the Intergovernmental 
Partnership
    G. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    H. National Technology Transfer and Advancement Act

I. Background

A. Action

    In today's action, EPA proposes to federalize standards from the 
Arizona state implementation plan (SIP) and permits issued pursuant to 
the SIP, applicable to the Navajo Generating Station. Where necessary, 
EPA's proposed emission standards and associated requirements modify 
those extracted from Arizona's regulatory programs to ensure 
comprehensive emission control and federal consistency.

B. Facility

    NGS is a privately owned and operated coal-fired power plant 
located on the Navajo Indian Reservation. Through lease agreements, the 
facility utilizes real property held in trust by the federal government 
for the Navajo Nation. The facility operates three units, each with a 
capacity of 750 megawatts (MW).
    NGS is located just east of Page, Arizona, approximately 135 miles 
north of Flagstaff. Operations at the facility produce emissions of 
sulfur dioxide (SO2), nitrogen dioxide (NOX) and 
particulate matter (PM).

C. Attainment

    NGS is located in the Northern Arizona Intrastate air quality 
control region (AQCR), which is designated attainment for all criteria 
pollutants under the Clean Air Act (CAA or ``the Act''). 40 CFR 81.303. 
As the NGS proposed FIP merely federalizes the regulatory scheme with 
which the plant has been complying, EPA believes that air quality, and 
hence the attainment status, in this area will not be negatively 
impacted by this action.1
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    \1\ A different conclusion may be reached by EPA, however, if, 
for example, there were evidence that the source to be regulated by 
the FIP is causing or contributing to violations of the applicable 
NAAQS, or was located in an area that is designated nonattainment 
for such NAAQS.
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D. Visibility

    Sections 169A and 110(c) of the Act require EPA to take appropriate 
measures to remedy certified visibility impairments in mandatory Class 
I areas where the visibility impairment is reasonably attributed to a 
specific source. On September 5, 1989, EPA preliminarily attributed a 
significant portion of wintertime visibility impairment in the Grand 
Canyon National Park to NGS (54 FR 36948). On October 3, 1991, EPA 
revised the visibility FIP for the state of Arizona to include an 
SO2 emission limit for NGS to remedy visibility impairment 
in the

[[Page 48726]]

Grand Canyon National Park. 56 FR 50172, 40 CFR 52.145. Under the 
visibility FIP, NGS is required to phase-in compliance with the 
SO2 emission limit, by unit, in 1997, 1998, and 1999.
    The visibility FIP is not being amended or changed by today's 
action. The visibility FIP remains in full force and effect and this 
rulemaking does not provide an opportunity for public comment or 
judicial review of EPA's earlier actions promulgating the visibility 
FIP.

E. Jurisdictional Issue

    Historically, emissions of air pollutants from the NGS facility 
have been regulated under provisions of the Arizona air pollution 
control program, in accordance with the Arizona SIP. However, States 
are generally precluded from enforcing their civil regulatory programs 
on Tribal lands, absent an explicit Congressional authorization or 
State-Tribal agreement. See California v. Cabazon Band of Mission 
Indians, 480 U.S. 202 (1987).
    Both the Navajo Nation and members of the regulated community have 
queried EPA concerning the jurisdictional issue of who has authority 
under the Act to regulate air emissions from NGS. Upon review of the 
circumstances surrounding the location and operation of NGS on the 
Navajo Indian Reservation, EPA concluded that jurisdiction under the 
Act over this facility lies with EPA and the Navajo Nation. EPA met 
with representatives of the State of Arizona, the Navajo Nation and NGS 
to discuss this jurisdictional issue. All parties have expressed 
agreement with this conclusion.

II. Basis for Proposed Action

A. EPA's Authority To Promulgate a FIP in Indian Country

    EPA's conclusion that CAA jurisdiction over NGS lies with EPA and 
the Navajo Nation necessarily leads to the conclusion that a regulatory 
gap exists with regard to this facility. EPA is thus proposing to 
remedy this gap with a source-specific FIP. This FIP will in essence 
federalize the Arizona SIP and permit requirements with which the 
facility has been complying.
    The Clean Air Act Amendments of 1990 greatly expanded the role of 
Indian tribes in implementing the provisions of the Clean Air Act in 
Indian country. Section 301(d) of the Act authorizes EPA to issue 
regulations specifying the provisions of the Clean Air Act for which 
Indian tribes may be treated in the same manner as states. See CAA 
sections 301(d)(1) and (2). EPA promulgated the final rule under 
section 301(d) of the Act, entitled ``Indian Tribes: Air Quality 
Planning and Management,'' on February 12, 1998. 63 FR 7254. The rule 
is generally referred to as the ``Tribal Authority Rule'' or ``TAR''.
    In the preamble to the proposed 2 and final rule, EPA 
discusses generally the legal basis under the CAA by which EPA and 
tribes are authorized to regulate sources of air pollution in Indian 
country. EPA concluded that the CAA constitutes a statutory grant of 
jurisdictional authority to Indian tribes that allows them to develop 
air programs for EPA approval in the same manner as states. 63 FR at 
7254-7259; 59 FR 43958-43960.
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    \2\ See 59 FR 43956 (August 25, 1994).
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    EPA also concluded that the CAA authorizes EPA to protect air 
quality throughout Indian country, including on fee lands. See 63 FR 
7262; 59 FR 43960-43961 (citing to CAA sections 101(b)(1), 301(a), and 
301(d)). In fact, in promulgating the TAR, EPA specifically provided 
that, pursuant to the discretionary authority explicitly granted to EPA 
under sections 301(a) and 301(d)(4) of the Act, EPA

    ``shall 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) 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.'' 63 FR at 7273 (codified at 40 CFR 
49.11(a)).3

    \3\ In the preamble to the final TAR, EPA explained that it 
believed it was inappropriate to treat tribes in the same manner as 
States with respect to section 110(c) of the Act, which directs EPA 
to promulgate a FIP within two years after EPA finds a state has 
failed to submit a complete state plan or within two years after EPA 
disapproval of a state plan. Although EPA is not required to 
promulgate a FIP within the two year period for tribes, EPA 
promulgated 40 CFR 49.11(a) to clarify that EPA will continue to be 
subject to the basic requirement to issue any necessary or 
appropriate FIP provisions for affected tribal areas within some 
reasonable time. See 63 FR 7264-7265.

    It is EPA's policy to aid tribes in developing comprehensive and 
effective air quality management programs by providing technical and 
other assistance to them. EPA recognizes, however, that just as it 
required many years to develop state and federal programs to cover 
lands subject to state jurisdiction, it will also require time to 
develop tribal and federal programs to cover reservations and other 
lands subject to tribal jurisdiction. 59 FR 43961.
    The Navajo Nation has expressed a strong interest in seeking 
authority under the TAR to regulate sources of air pollution located on 
the Reservation under the Clean Air Act. Based on discussions with the 
Tribe, however, EPA believes that it will be at least several months 
before the Tribe will be ready to seek authority under the TAR to 
assume Clean Air Act planning responsibilities and that, when they do 
so, the Tribe intends to build its capacity and seek authority for the 
various Clean Air Act programs over time, rather than all at once. The 
Tribe has advised EPA that it continues to support EPA's efforts to 
impose such controls on NGS as are necessary to ensure continued 
compliance with the substantive requirements of the Arizona SIP and 
permits, notwithstanding the recent promulgation of the TAR.
    Therefore, in this proposed FIP, EPA is exercising its 
discretionary authority under sections 301(a) and 301(d)(4) of the CAA 
and 40 CFR 49.11(a) to promulgate a federal implementation plan in 
order to remedy an existing regulatory gap under the Act with respect 
to NGS. Although the facility has been historically regulated by 
Arizona for the most part since its construction, the state lacks 
jurisdiction over the facility or its owners or operators for CAA 
compliance or enforcement purposes. The Tribe has not submitted a 
tribal implementation plan to address emissions from NGS and has 
indicated to EPA that it prefers to have EPA address the emissions from 
NGS at this time. Since the Navajo Nation does not presently have a 
federally approved TIP, in the absence of a comprehensive FIP the 
applicable regulatory requirements arising under state law would not be 
enforceable. EPA's FIP will federalize requirements contained in the 
Arizona SIP that were applicable to NGS and permits issued pursuant to 
the SIP. Given the magnitude of the emissions from the plant, EPA 
believes that the proposed FIP provisions are both necessary and 
appropriate to protect air quality on the Reservation.

B. Relation to Tribal Authority Rule

    As discussed above, under section 301(d) of the Act, a tribe may 
develop and implement one or more of its own air quality programs under 
the Act through a Tribal Air Program. On February 12, 1998, EPA 
promulgated regulations under Section 301(d) of the Act which provide 
the framework for tribes to obtain authority to administer federally-
approved and federally-enforceable programs under the Act, including 
tribal implementation plans. See 59 FR 43956, August 25, 1994

[[Page 48727]]

(proposed rule) and 63 FR 7254, February 12, 1998 (final rule).
    The Navajo Nation now has the option of assuming responsibility for 
the development and implementation of federally enforceable air quality 
programs under the Clean Air Act. Until a federally approved Navajo 
Nation TIP is in place with regulations which cover NGS, however, EPA 
has exclusive jurisdiction to regulate the source under the Act. Once 
final, the regulations proposed today will remain in effect until a TIP 
governing NGS is in place and the FIP is withdrawn.

III. Navajo Generating Station--Facility Description

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

IV. Summary of FIP Provisions

A. State Standards

    The standards in this FIP proposal are generally based on the state 
standards under which the facility has been operating (NGS must also 
continue to comply with all other applicable federal requirements). 
These standards, derived from the Arizona SIP and operating permit, are 
summarized as follows:
    1. Particulate matter emissions were limited to 17.0 times 
Q0.4320 pounds per hour where Q is million BTU per hour of 
heat input to the boilers.
    2. Opacity was limited to 40 percent.
    3. Sulfur oxides emissions were limited to one pound per million 
BTU, per unit, three-hour average.

B. Visibility FIP

    Under the visibility FIP, SO2 emissions are limited to 
0.1 pounds per million BTU on a plant-wide rolling annual basis, and 
scrubbers must be installed and operable on all three units by August 
19, 1999. The scrubbers were installed and operating on the last of the 
three units in February, 1999.
    The SO2 scrubbers will substantially lower the 
SO2 emissions from Navajo Generating Station. When the 
scrubbers are operating, SO2 emissions will be less than .1 
pounds per million BTU. The visibility FIP standards are an annual 
average, as this was determined to be protective of visibility 
resources in the Grand Canyon.
    The visibility FIP is not being amended or changed by today's 
action. The visibility FIP remains in full force and effect and this 
rulemaking does not provide an opportunity for public comment or 
judicial review of EPA's earlier actions promulgating the visibility 
FIP.

C. Acid Rain Requirements

    NGS is subject to Acid Rain requirements. They elected to comply 
early as a Phase I NOX facility; this means they have a 
NOX limit of .45 pounds per million BTU, per unit, on an 
annual basis. This limit applies until 2008, when it will be lowered to 
.40 pounds per million BTU. NGS also has specific SO2 
allowances per unit.

D. Proposed FIP Standards

    1. Particulate matter is limited to 0.060 pounds per million BTU 
averaged over a six hour period, on a plant-wide basis.
    2. Opacity is limited to 40 percent averaged over a six minute 
period, excluding water vapor.
    3. SO2 emissions are limited to 1 pound per million BTU 
averaged over a three hour period, on a plant-wide basis.

E. Summary of Changes From State Standards

    1. The particulate emissions standard was changed from 17.0 
Q0.4320 pounds per hour (where Q is million BTU per hour) to 
0.060 pounds per million BTU because this standard is a generally 
recognized form for the particulate standard and it is more reliably 
measured. The stringency of the new standard approximates the old 
standard: Using EPA policy of conducting emissions tests at 90 percent 
to 100 percent of the facility's full load, the original Arizona 
equation yields estimated allowable emissions of between .057 and 0.061 
pounds per million BTU. Thus, a limit of.060 lb/MMbtu is appropriate.
    The FIP we are proposing specifically states that the particulate 
standard will be measured on a plant-wide basis. Although the Arizona 
permit did not state this explicitly, this was the way that Arizona 
determined compliance at the NGS historically.
    2. The proposed opacity standard specifically excludes water vapor. 
NGS has opacity monitors on each of its stacks; water vapor, which will 
be present in all stacks because of the SO2 scrubbers, 
causes inaccurate excess emission readings on the opacity monitors.
    3. The standard for SO2 is slightly changed. The method 
of compliance determination has been changed from one based on the 
sulfur content of coal to one based on continuous emission monitoring 
(CEM). The facility has experienced difficulty with the analysis of the 
sulfur content of coal, and the federal acid rain regulations require 
CEM monitoring. CEM monitoring is generally recognized as being more 
accurate and precise than monitoring the sulfur content of coal.
    Compliance with the Arizona permit limits was determined on a per-
unit basis. NGS complied with these limits by using very low sulfur 
coal. Now, because of the presence of the scrubbers, NGS will be able 
to comply with its short-term limits by removing sulfur from the 
exhaust stream. This will allow them to purchase slightly higher sulfur 
coal; additionally, the plant-wide average allows one scrubber to be 
down for periodic maintenance (lasting usually 30 to 40 days) without 
requiring the purchase of specific low sulfur coal for use during the 
maintenance. Nevertheless, the actual emissions will remain 90% lower 
on an annual basis than they were before the scrubbers were installed.
    4. A number of other changes were made relative to the Arizona SIP 
making the FIP specific to NGS and to conform to EPA excess emissions 
and other reporting and quality assurance procedures.

F. Compliance Schedule

    The EPA proposes that the requirements contained in this proposal 
become effective upon promulgation of these regulations, since the 
emission limits established by the proposed FIP are presently being 
achieved at the facility.

V. Solicitation of Comments

    The EPA solicits comments on all aspects of today's proposal to 
promulgate a FIP to regulate air emissions from NGS. Interested parties 
should submit comments to the address cited in the front of this 
proposed rule. Public comments postmarked by

[[Page 48728]]

October 8, 1999 will be considered in the final action taken by EPA.

VI. Administrative Requirements

A. Executive Order (E.O.) 12866

    Under Executive Order (E.O.) 12866, 58 FR 51735 (October 4, 1993), 
all ``regulatory actions'' that are ``significant'' are subject to 
Office of Management and Budget (OMB) review and the requirements of 
the Executive Order. A ``regulatory action'' is defined as ``any 
substantive action by an agency (normally published in the Federal 
Register) that promulgates or is expected to result in the promulgation 
of a final rule or regulation, including * * * notices of proposed 
rulemaking.'' A ``regulation or rule'' is defined as ``an agency 
statement of general applicability and future effect, * * *.''
    The proposed FIP is not subject to OMB review under E.O. 12866 
because it applies to only a single, specifically named facility and is 
therefore not a rule of general applicability. Thus, it is not a 
``regulatory action'' under E.O. 12866.

B. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. section 601 et. 
seq., EPA must prepare a regulatory flexibility analysis assessing the 
impact of any proposed or final rule on small entities. 5 U.S.C. 
sections 603 and 604. Alternatively, EPA may certify that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000. The federal implementation plan for the Navajo 
Generating Station proposed today does not impose any new requirements 
on small entities. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 
F.2d 327 (D.C. Cir. 1985) (agency's certification need only consider 
the rule's impact on entities subject to the requirements of the rule). 
Therefore, pursuant to 5 U.S.C. 605(b), EPA certifies that today's 
action does not have a significant impact on a substantial number of 
small entities within the meaning of those terms for RFA purposes.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995, Pub.L. 04-4, 
establishes requirements for federal agencies to assess the effects of 
their regulatory actions on state, local, and tribal governments and 
the private sector. Under section 202 of UMRA, EPA generally must 
prepare a written statement, including a cost-benefit analysis, for 
proposed rules and for final rules for which EPA published a notice of 
proposed rulemaking, if those rules contain ``federal mandates'' that 
may result in the expenditure by state, local, and tribal governments, 
in the aggregate, or by the private sector, of $100 million or more in 
any one year. If section 202 requires a written statement, section 205 
of UMRA generally requires EPA to identify and consider a reasonable 
number of regulatory alternatives. Under section 205, EPA must adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule, unless the Administrator 
publishes with the final rule an explanation why EPA did not adopt that 
alternative. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Section 204 of UMRA requires EPA to 
develop a process to allow elected officers of state, local, and tribal 
governments (or their designated, authorized employees), to provide 
meaningful and timely input in the development of EPA regulatory 
proposals containing significant Federal intergovernmental mandates.
    EPA has determined that the proposed FIP contains no federal 
mandates on state, local or tribal governments, because it will not 
impose any enforceable duties on any of these entities. EPA further has 
determined that the proposed FIP is not likely to result in the 
expenditure of $100 million or more by the private sector in any one 
year. Although the proposed FIP would impose enforceable duties on an 
entity in the private sector, the costs are expected to be minimal. 
Consequently, sections 202, 204, and 205 of UMRA do not apply to the 
proposed FIP.
    Before EPA establishes any regulatory requirements that might 
significantly or uniquely affect small governments, it must have 
developed under section 203 of UMRA a small government agency plan. The 
plan must provide for notifying potentially affected small governments, 
enabling officials of affected small governments to have meaningful and 
timely input in the development of EPA regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    EPA has determined that the proposed FIP will not significantly or 
uniquely affect small governments, because it imposes no requirements 
on small governments. Therefore, the requirements of section 203 do not 
apply to the proposed FIP. Nonetheless, EPA worked closely with 
representatives of the Tribe in the development of today's proposed 
action.

D. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *.'' 44 U.S.C. 3502(3)(A). Because the proposed FIP 
only applies to one company, the Paperwork Reduction Act does not 
apply.

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This executive order applies to any rule that: (1) Is determined to 
be ``economically significant'' as that term is defined in E.O. 12866, 
and (2) concerns an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. If 
the regulatory action meets both criteria, the Agency must evaluate the 
environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. The NGS FIP is not subject to E.O. 13045 
because it implements previously promulgated health or safety-based 
federal standards.

F. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, any written communications 
from the governments, and EPA's position supporting the need to issue

[[Page 48729]]

the regulation. In addition, Executive Order 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    As stated above, the proposed FIP will not create a mandate on 
state, local or tribal governments because it will not impose any 
enforceable duties on these entities. Accordingly, the requirements of 
section 1(a) of Executive Order 12875 do not apply to this rule. 
Nonetheless, EPA worked closely with representatives of the Tribe 
during the development of today's proposed action.

G. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    The proposed FIP does not impose substantial direct compliance 
costs on the communities of Indian tribal governments. The proposed FIP 
imposes obligations only on the owner or operator of NGS. Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this rule.
    As discussed above, EPA worked closely with representatives of the 
Tribe during the development of today's proposed action.

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 12 (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards (VCS) are 
technical standards (e.g. materials specifications, test methods, 
sampling procedures and business practices) that are developed or 
adopted by the voluntary consensus standards bodies. The NTTAA directs 
EPA to provide Congress, through annual reports to OMB, with 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards.
    A consensus standard, ASTM D6216-98, appears to be practical for 
use in lieu of EPA Performance Specification 1 (see 40 CFR part 60, 
appendix B) for the opacity monitoring to be required for this 
facility. On September 23, 1998, EPA proposed incorporating by 
reference ASTM D6216-98 into Performance Specification 1 under a 
separate rulemaking (63 FR 50824) that would allow broader use and 
application of this consensus standard. EPA plans to complete this 
action in the near future. As it would be impractical for EPA to act 
independently from rulemaking activity already undergoing notice and 
comment, EPA defers taking action in the current rulemaking that would 
immediately adopt D6216-98, and we will therefore require use of EPA 
Performance Specification 1 in the interim.
    In regard to the remaining measurement needs as listed below, there 
are a number of voluntary consensus standards that appear to have 
possible use in lieu of the EPA test methods and performance 
specifications (40 CFR part 60 appendices A and B) noted next to the 
measurement requirements. It would not be practical to specify these 
standards in the current rulemaking due to a lack of sufficient data on 
equivalency and validation and because some are still under 
development. However, EPA's Office of Air Quality Planning and 
Standards is in the process of reviewing all available VCS for 
incorporation by reference into the test methods and performance 
specifications of 40 CFR Part 60, Appendices A and B. Any VCS so 
incorporated in a specified test method or performance specification 
would then be available for use in determining the emissions from this 
facility. This will be an ongoing process designed to incorporate 
suitable VCS as they become available.
    Particulate Matter Emissions--EPA Methods 1 though 5
    Opacity--EPA Method 9 and Performance Specification Test 1 for 
Opacity Monitoring
    SO2--EPA Method 6C and Performance Specification 2 for 
Continuous SO2 Monitoring

List of Subjects

40 CFR Part 49

    Environmental protection, Air pollution control, Indians, 
Intergovernmental relations, Reporting and recordkeeping.

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: August 27, 1999.
Carol M. Browner,
Administrator.

    Title 40, chapter I of the Code of Federal Regulations is proposed 
to be amended as follows:

PART 49--TRIBAL CLEAN AIR ACT AUTHORITY

    1. The authority citation for part 49 continues to read as follows:

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

    2. Part 49 is proposed to be amended by adding Sec. 49.20 to read 
as follows:


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

    (a) Applicability. The provisions of this section shall apply to 
each owner or operator of the fossil fuel-fired, steam-generating 
equipment designated as Units 1, 2, and 3, and the two auxiliary steam 
boilers at the Navajo Generating Station (NGS) in the Navajo Indian 
Reservation located in the Northern Arizona Intrastate Air Quality 
Control Region (see 40 CFR 81.270).
    (b) Compliance Dates. Compliance with the requirements of this 
section is required upon promulgation unless otherwise indicated by 
compliance dates contained in specific provisions.
    (c) Definitions. For the purposes of this section:
    (1) Administrator means the Administrator of the Environmental 
Protection Agency or his/her authorized representative.
    (2) Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a

[[Page 48730]]

defendant, regarding which the defendant has the burden of proof, and 
the merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding.
    (3) Malfunction means any sudden and unavoidable failure of air 
pollution control equipment or process equipment or of a process to 
operate in a normal or usual manner. Failures that are caused entirely 
or in part by poor maintenance, careless operation, or any other 
preventable upset condition or preventable equipment breakdown shall 
not be considered malfunctions.
    (4) Owner or Operator means any person who owns, leases, operates, 
controls or supervises NGS, any of the fossil fuel-fired, steam-
generating equipment at NGS, or the auxiliary steam boilers at NGS.
    (5) Startup shall mean the period from start of fires in the boiler 
with fuel oil, to the time when the electrostatic precipitator is 
sufficiently heated such that the temperature of the air preheater 
inlet reaches 400 degrees Fahrenheit. Proper startup procedures shall 
include energizing the electrostatic precipitator prior to the 
combustion of coal in the boiler.
    (6) Shutdown shall be the period from cessation of coal fires in 
the boiler until the electrostatic precipitator is de-energized. The 
precipitator shall be maintained in service until boiler fans are 
disengaged.
    (d) Emissions Standards--(1) Sulfur Oxides--No owner or operator 
shall discharge or cause the discharge of sulfur oxides into the 
atmosphere from Units 1, 2 or 3 in excess of 1.0 pound per million 
British thermal units (lb/MMBtu) averaged over any three (3) hour 
period, on a plant-wide basis.
    (2) Particulate Matter--No owner or operator shall discharge or 
cause the discharge of particulate matter into the atmosphere in excess 
of 0.060 lb/MMBtu averaged over a six (6) hour period, on a plant-wide 
basis.
    (3) Fugitive Dust--Each owner or operator shall operate and 
maintain the existing dust suppression methods for controlling fugitive 
dust from the coal handling and storage facilities. Within ninety (90) 
days after promulgation of these regulations the owner or operator 
shall submit to the Administrator a description of the dust suppression 
methods for controlling fugitive dust from the coal handling and 
storage facilities, fly ash handling and storage, and road sweeping 
activities.
    (4) Opacity--No owner or operator shall discharge or cause the 
discharge of emissions into the atmosphere exhibiting greater than 40% 
opacity, excluding water vapor, averaged over any six (6) minute 
period.
    (e) Testing and Monitoring. (1) Effective sixty (60) days after 
promulgation of this section, the owner or operator shall maintain and 
operate CEMS and COMS in accordance with 40 CFR 60.8 and 60.13(e), (f), 
and (h), and appendix B of 40 CFR part 60. The owner or operator shall 
comply with the quality assurance procedures for CEMS and COMS found in 
40 CFR part 75.
    (2) The owner or operator shall conduct annual mass emissions tests 
for particulate matter on Units 1, 2, and 3, operating at rated 
capacity, using coal that is representative of that normally used. The 
tests shall be conducted using the appropriate test methods in 40 CFR 
part 60, appendix A.
    (3) The owner or operator shall conduct an initial mass emissions 
tests for sulfur dioxide, nitrogen oxides and particulate matter on the 
two auxiliary steam boilers, operating at rated capacity, using oil 
that is representative of that normally used. The test shall then be 
conducted annually or after 720 hours of operation, whichever is later. 
The tests shall be conducted using the appropriate test methods in 40 
CFR part 60, appendix A.
    (4) The owner or operator shall maintain two sets of opacity 
filters for each type of COMS, one set to be used as calibration 
standards and one set to be used as audit standards. At least one set 
of filters shall be on site at all times.
    (5) All emissions testing and monitor evaluation required pursuant 
to this section shall be conducted in accordance with the appropriate 
method found in 40 CFR part 60, appendices A and B.
    (6) The owner or operator shall install, maintain and operate 
ambient monitors at Glen Canyon Dam for particulate matter 
(PM2.5 and PM10), nitrogen dioxide, sulfur 
dioxide, and ozone. Operation, calibration and maintenance of the 
monitors shall be performed in accordance with 40 CFR part 58, 
manufacturer's specification, and ``Quality Assurance Handbook for Air 
Pollution Measurements Systems'', Volume II, U.S. EPA as applicable to 
single station monitors. Data obtained from the monitors shall be made 
available to the Administrator upon request. All particulate matter 
samplers shall operate at least every third day, coinciding with the 
national particulate sampling schedule.
    (7) Nothing herein shall limit EPA's ability to ask for a test at 
any time under section 114 of the Clean Air Act, 42 U.S.C. 7413, and 
enforce against any violation of the Clean Air Act or this section.
    (f) Reporting and recordkeeping requirements. Unless otherwise 
stated all requests, reports, submittals, notifications and other 
communications to the Administrator required by this section shall be 
submitted to the Director, Air Division, U.S. Environmental Protection 
Agency, Region IX, to the attention of Mail Code: AIR-5, at 75 
Hawthorne Street, San Francisco, California 94105, (415) 744-1138, 
(415) 744-1076 (facsimile). For each unit subject to the emissions 
limitations in this section the owner or operator shall:
    (1) Comply with the notification and recordkeeping requirements for 
testing found in 40 CFR 60.7. All data/reports of testing results shall 
be submitted to the Administrator and postmarked within 60 days of 
testing.
    (2) For excess emissions or a malfunction, notify the Administrator 
by telephone or in writing within one business day. A complete written 
report of the incident shall be submitted to the Administrator within 
fifteen (15) working days after the event. This notification shall 
include the following information:
    (i) The identity of the stack and/or other emissions points where 
excess emissions occurred;
    (ii) The magnitude of the excess emissions expressed in the units 
of the applicable emissions limitation and the operating data and 
calculations used in determining the magnitude of the excess emissions;
    (iii) The time and duration or expected duration of the excess 
emissions;
    (iv) The identity of the equipment causing the excess emissions;
    (v) The nature and cause of such excess emissions;
    (vi) If the excess emissions were the result of a malfunction, the 
steps taken to remedy the malfunction and the steps taken or planned to 
prevent the recurrence of such malfunction; and
    (vii) The steps than were taken or are being taken to limit excess 
emissions.
    (3) Notify the Administrator verbally within one business day 
whenever an exceedance of the NAAQS has been measured by a monitor 
operated in accordance with this section. The notification to the 
Administrator shall include the time, date, and location of the 
exceedance, and the pollutant and concentration of the exceedance. The 
verbal notification shall be followed within fifteen (15) days by a 
letter containing the following information:
    (i) The time, date, and location of the exceedance;
    (ii) The pollutant and concentration of the exceedance;

[[Page 48731]]

    (iii) The meteorological conditions existing 24 hours prior to and 
during the exceedance;
    (iv) For a particulate matter exceedance, the 6-minute average 
opacity monitoring data greater than 40% for the 24 hours prior to and 
during the exceedance; and
    (v) Proposed plant changes such as operation or maintenance, if 
any, to prevent future exceedances. Compliance with this paragraph 
(f)(3)(v) shall not excuse or otherwise constitute a defense to any 
violations of this section or of any law or regulation which such 
excess emissions or malfunction may cause.
    (4) Submit quarterly excess emissions reports for sulfur dioxide 
and opacity as recorded by CEMS and COMS together with a CEMS data 
assessment report to the Administrator no later than 30 days after each 
calendar quarter. The owner or operator shall complete the excess 
emissions reports according to the procedures in 40 CFR 60.7 (c) and 
(d) and appendix F of 40 CFR part 60. Excess opacity due to uncondensed 
water vapor in the stack does not constitute a reportable exceedence.
    (g) Compliance Certifications. Notwithstanding any other provision 
in this implementation plan, the owner or operator may use any credible 
evidence or information relevant to whether a source would have been in 
compliance with applicable requirements if the appropriate performance 
or compliance test had been performed, for the purpose of submitting 
compliance certifications.
    (h) Equipment operations. The owner or operator shall operate all 
equipment or systems needed to comply with this section in accordance 
with 40 CFR 60.11(d) and consistent with good engineering practices to 
keep emissions at or below the emissions limitations in this section, 
and following outages of any control equipment or systems the control 
equipment or system will be returned to full operation as expeditiously 
as practicable.
    (i) Enforcement. (1) Notwithstanding any other provision in this 
implementation plan, any credible evidence or information relevant to 
whether a source would have been in compliance with applicable 
requirements if the appropriate performance or compliance test had been 
performed, can be used to establish whether or not a person has 
violated or is in violation of any standard in the plan.
    (2) During periods of start-up and shutdown the otherwise 
applicable emission limits or requirements for opacity and particulate 
matter shall not apply provided that:
    (i) At all times the facility is operated in a manner consistent 
with good practice for minimizing emissions, and the owner or operator 
uses best efforts regarding planning, design, and operating procedures 
to meet the otherwise applicable emission limit;
    (ii) The frequency and duration of operation in start-up or 
shutdown mode are minimized to the maximum extent practicable; and
    (iii) The owner or operator's actions during start-up and shutdown 
periods are documented by properly signed, contemporaneous operating 
logs, or other relevant evidence.
    (3) Emissions in excess of the level of the applicable emission 
limit or requirement that occur due to a malfunction shall constitute a 
violation of the applicable emission limit. However, it shall be an 
affirmative defense in an enforcement action seeking penalties if the 
owner or operator has met with all of the following conditions:
    (i) The malfunction was the result of a sudden and unavoidable 
failure of process or air pollution control equipment and did not 
result from inadequate design or construction of the process or air 
pollution control equipment;
    (ii) The malfunction did not result from operator error or neglect, 
or from improper operation or maintenance procedures;
    (iii) The excess emissions were not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance;
    (iv) Steps were immediately taken to correct conditions leading to 
the malfunction, and the amount and duration of the excess emissions 
caused by the malfunction were minimized to the maximum extent 
practicable;
    (v) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality;
    (vi) All emissions monitoring systems were kept in operation if at 
all possible; and
    (vii) The owner or operator's actions in response to the excess 
emissions were documented by properly signed, contemporaneous operating 
logs, or other relevant evidence.

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671, et seq.

Subpart D--Arizona

    2. Subpart D is proposed to be amended by adding Sec. 52.141 to 
read as follows:


Sec. 52.141  Federal Implementation Plan for Navajo Generating Station, 
Navajo Nation.

    The Federal Implementation Plan regulating emissions from the 
Navajo Generating Station near Page, Arizona is codified at 40 CFR 
49.20.

[FR Doc. 99-23276 Filed 9-7-99; 8:45 am]
BILLING CODE 6560-50-P