[Federal Register Volume 64, Number 173 (Wednesday, September 8, 1999)]
[Proposed Rules]
[Pages 48731-48739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23277]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 49 and 52

[FRL-6432-6]
RIN 2060-AF42


Source Specific Federal Implementation Plan for Four Corners 
Power Plant; 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 Four Corners Power Plant (FCPP), a coal-
fired power plant located on the Navajo Indian Reservation near 
Farmington, New Mexico.

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. 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. Four Corners Power Plant--Facility Description
IV. Summary of FIP Provisions
    A. State Standards
    B. Acid Rain Program Requirements
    C. Proposed FIP Standards

[[Page 48732]]

    D. Summary of Changes From State Standards
    E. 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 
New Mexico state implementation plan (SIP) applicable to the FCPP. 
Where necessary, EPA's proposed emission standards and associated 
requirements modify those extracted from New Mexico's regulatory 
programs to ensure comprehensive emission control and federal 
consistency.

B. Facility

    FCPP is a privately owned and operated coal-fired power plant 
located on the Navajo Indian Reservation near Farmington, New Mexico. 
Through lease agreements, the facility utilizes real property held in 
trust by the federal government for the Navajo Nation. The facility 
operates five units with a total capacity in excess of 2000 megawatts 
(MW). Operations at the facility produce emissions of sulfur dioxide 
(SO2), nitrogen dioxide (NOX) and particulate 
matter (PM).

C. Attainment

    FCPP is located in the Four Corners Interstate air quality control 
region (AQCR), which is designated attainment for all criteria 
pollutants under the Clean Air Act (CAA or ``the Act''). 40 CFR 81.332. 
As the proposed FCPP 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. Jurisdictional Issue

    Historically, emissions of air pollutants from the FCPP facility 
have been regulated under provisions of the New Mexico air pollution 
control program, in accordance with the New Mexico 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 FCPP. Upon review of the 
circumstances surrounding the location and operation of FCPP 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 New Mexico, the Navajo Nation and 
FCPP 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 FCPP 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 New Mexico SIP 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 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.
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``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.''

    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 at 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 FCPP as are necessary to

[[Page 48733]]

ensure continued compliance with the substantive requirements of the 
New Mexico SIP, 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 FCPP. Although the facility has been historically regulated by New 
Mexico 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 FCPP and has indicated to EPA that it prefers to 
have EPA address the emissions from FCPP 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 applicable to FCPP contained in the New Mexico 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 (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 FCPP, 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 FCPP is in place and the FIP is withdrawn.

III. Four Corners Power Plant--Facility Description

    The FCPP is a 2040 MW coal-fired power plant located on the Navajo 
Indian Reservation near Farmington, New Mexico. The FCPP consists of 
three 190 to 253 MW units and two 818 MW units all of which became 
operational between 1962 and 1970. The Arizona Public Service Company 
(APS) is the operating agent for FCPP which is jointly owned by the 
APS, the Southern California Edison Company, the Salt River Project 
Agricultural Improvement and Power District (SRP), the Public Service 
Company of New Mexico, the El Paso Electric Company and the Tucson 
Electric Power Company. Existing pollution control equipment at FCPP 
units 4 and 5 includes baghouses and lime spray towers for 
SO2 control and specific burners designed for NOX 
control. Units 1, 2 and 3 each have a venturi scrubber for particulate 
and SO2 control.

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 (FCPP must also 
continue to comply with all applicable federal requirements). These 
standards, derived from the New Mexico SIP, are summarized as follows:
    1. SO2 emissions are limited to 28 percent of the 
SO2 produced in coal burning or 17,900 pounds per hour based 
on an averaged three hour period (AQCR 602).
    2. Particulate emissions are limited to 0.05 pounds per million BTU 
(AQCR 504).
    3. Excess emissions notification requirements are specified (AQCR 
801).

B. Acid Rain Program Requirements

    The Federal Acid Rain Program requires that low-NOX 
burners be installed on all five units. By the year 2000, Units 1, 2 
and 3 (wall-fired boilers) must comply with a .46 lb/MMbtu annual 
average of NOX. Units 4 and 5 (cell-fired boilers) must meet 
a limit of .68 lb/MMbtu.
    Emissions of SO2 are regulated through an allowance 
system. FCPP has sufficient allowances to cover current emissions.

C. Proposed FIP Standards

    1. SO2 emissions are not to exceed 28 percent of the 
SO2 produced in the burning of sulfur-bearing coal (averaged 
over successive thirty boiler operating day periods station-wide) and 
not to exceed 17,900 pounds of total SO2 per hour averaged 
over any consecutive three hour period station-wide.
    2. Particulate emissions are not to exceed 0.050 pounds per million 
BTU of heat input.
    3. Opacity is limited to 20 percent averaged over a six minute 
period, for Units 4 and 5.
    4. APS will develop a plan to monitor, record and report operating 
parameters indicative of good operation of the scrubbers for control of 
particulate matter on Units 1, 2, and 3.
    5. Nitrogen oxides are not to exceed 0.85 pounds per million BTU of 
input for Units 1 and 2, and 0.65 pounds per million BTU of input for 
Units 3, 4, and 5, averaged over any successive 30 boiler operating day 
period; nor shall they exceed 335,000 lb per 24-hour period on a 
station-wide basis. When any one unit is not operating, the limits are 
reduced by 1542 pounds per hour for units 1, 2, and 3, and by 4667 
pounds per hour for units 4 and 5.

D. Summary of Changes From State Standards

    1. The NOX requirements are more stringent than those 
contained in the New Mexico SIP. These requirements were submitted to 
EPA, Region 6, on November 4, 1991 as a New Mexico SIP revision, and 
were not acted on as the SIP has no effect over FCPP.
    2. The SIP particulate emissions sampling methods, which were based 
in part on an analysis of fine particulates, have been changed to EPA 
methods referenced in federal code (40 CFR part 60, appendix A, Methods 
1-5). The fine particulate analysis was not being routinely performed 
and the EPA methods were in use at the facility. Further, EPA believes 
that the particulate matter limit is the more stringent of the two 
emission limits.
    3. The standard for opacity has been added in order to confirm 
Units 4 and 5 are in continuous compliance and are properly operated 
and maintained. These units operate with baghouses for particulate 
control and therefore are able to meet this limit.
    4. The opacity limit is not being applied to Units 1, 2 and 3. The 
scrubbers currently in operation on Units 1, 2 and 3 were designed for 
control of particulate, and were later redesigned to also control 
sulfur dioxide. However, FCPP cannot currently meet a continuous 
opacity limit of 20 percent at Units 1, 2 and 3. EPA is proposing that 
FCPP design and enact a plan to monitor operating parameters such as 
pressure drop and scrubber liquid flow for the scrubbers. This will 
yield information about continuous proper operation of the

[[Page 48734]]

scrubbers for particulate control. This information could then be used 
to determine appropriate parameters, which could be included in FCPP's 
Title V permit as indicators for good particulate matter control 
practice.
    5. The standard for SO2 is unchanged but the method of 
compliance determination has been changed to a method based on CEM 
rather than on stack sampling.
    6. A number of other changes were made relative to the New Mexico 
SIP making the FIP specific to FCPP, and to conform to EPA excess 
emissions and other reporting and quality assurance procedures.

E. 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 FCPP. Interested 
parties should submit comments to the address listed in the front of 
this proposed rule. Public comments postmarked by October 8, 1999 will 
be considered in the final action taken by EPA.

VI. Administrative Requirements

A. Executive Order 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. 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. 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 Four 
Corners Power Plant 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, Public Law 
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

[[Page 48735]]

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 FCPP 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 
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 FCPP. Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this rule.

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 (10 (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 
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.
    Consistent with the NTTAA, the Agency conducted a search to 
identify potentially applicable voluntary consensus standards (VCS). 
For the measurement of the sulfur in the coal for calculating the 
efficiency of the SO2 scrubbers for FCCP, EPA proposes to 
require use of ASTM standards. FCCP would have the ability to choose an 
applicable ASTM standard for both the coal sample collection and the 
sulfur in coal analysis.
    Another 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 through 5.
    Opacity--EPA Method 9 and Performance Specification Test 1 for 
Opacity Monitoring.
    SO2--EPA Method 6C and Performance Specification 2 for 
Continuous SO2 Monitoring.
    NOX--EPA Method 7E and Performance Specification 2 for 
Continuous NOX Monitoring and Performance Specification 6 
for Flow Monitoring.

List of Subjects

40 CFR Part 49

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

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, Reporting

[[Page 48736]]

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. 49.21 to read 
as follows:


Sec. 49.21  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'') 
in the Navajo Indian Reservation located in the Four Corners Interstate 
Air Quality Control Region (see 40 CFR 81.121).
    (b) Compliance Dates. Compliance with the requirements of this 
section is required upon 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 (EPA) or his/her authorized representative.
    (2) Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding.
    (3) Air pollution control equipment includes baghouses, particulate 
or gaseous scrubbers, and any other apparatus utilized to control 
emissions of regulated air contaminants which would be emitted to the 
atmosphere.
    (4) Boiler operating day means a 24-hour period during which coal 
is combusted in a Unit for the entire 24 hours.
    (5) Daily average means the arithmetic average of the hourly values 
measured in a 24-hour period.
    (6) Excess emissions means the emissions of air contaminants in 
excess of an applicable emissions limitation or requirement.
    (7) Heat input means heat derived from combustion of fuel in a Unit 
and does not include the heat input from preheated combustion air, 
recirculated flue gases, or exhaust gases from other sources.
    (8) 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.
    (9) Owner or Operator means any person who owns, leases, operates, 
controls, or supervises the Plant or any of the coal burning equipment 
designated as Units 1, 2, 3, 4, or 5 at the Plant.
    (10) Oxides of nitrogen (NOX) means the sum of nitric 
oxide (NO) and nitrogen dioxide (NO2) in the flue gas, 
expressed as nitrogen dioxide.
    (11) Shutdown means the cessation of operation of any air pollution 
control equipment, process equipment, or process for any purpose. 
Specifically, for Units 1, 2, or 3, shutdown begins when the unit drops 
below 40 MW net load with the intent to remove the unit from service. 
For Units 4 or 5, shutdown begins when the unit drops below 300 MW net 
load with the intent to remove the unit from service.
    (12) Startup means the setting into operation of any air pollution 
control equipment, process equipment, or process for any purpose. 
Specifically, for Units 1, 2,or 3, startup ends when the unit reaches 
40 MW net load. For Units 4 or 5, startup ends when the unit reaches 
400 MW net load.
    (13) Station-wide basis means total stack emissions of any 
particular pollutant from all coal burning equipment at the Plant.
    (14) 24-hour period means the period of time between 12:01 a.m. and 
12:00 midnight.
    (d) Emissions Standards.--(1) Sulfur Dioxide. No owner or operator 
shall discharge or cause the discharge of sulfur dioxide 
(SO2) into the atmosphere in excess of:
    (i) 28% of that which is produced by the Plant's coal burning 
equipment, averaged over any successive thirty (30) boiler operating 
day period, determined on a station-wide basis; and
    (ii) 17,900 pounds of total sulfur dioxide emissions per hour 
averaged over any consecutive three (3) hour period, determined on a 
station-wide basis.
    (2) Particulate Matter. No owner or operator shall discharge or 
cause the discharge of particulate matter from any coal burning 
equipment into the atmosphere in excess of 0.050 pound per million 
British thermal unit (lb/MMBtu) of heat input (higher heating value), 
as averaged over six (6) hours of sampling.
    (3) Opacity. No owner or operator shall discharge or cause the 
discharge of emissions from the stacks of Units 4 and 5 into the 
atmosphere exhibiting greater than 20% opacity, excluding water vapor, 
averaged over any six (6) minute period (except for one six (6) minute 
period per hour of not more than 27% opacity, excluding water vapor).
    (4) Oxides of nitrogen. No owner or operator shall discharge or 
cause the discharge of NOX into the atmosphere:
    (i) From either Unit 1 or 2 in excess of 0.85 lb/MMBtu of heat 
input per unit, and from either Units 3, 4, or 5 in excess of 0.65 lb/
MMBtu of heat input per unit averaged over any successive thirty (30) 
boiler operating day period;
    (ii) In excess of 335,000 lb per 24-hour period when coal burning 
equipment is operating, on a station-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. Upon completion of the installation of 
continuous emissions monitoring systems (CEMS) software as required in 
this section, compliance with the emissions limits set for 
SO2 and NOX shall be determined by using data 
from a CEMS unless otherwise specified in paragraphs (e)(2) and (e)(4) 
of this section. Compliance with the emissions limit set for 
particulate matter shall be determined annually, or at such other time 
as requested by the Administrator, based on data from testing conducted 
in accordance with 40 CFR part 60, appendix A, Methods 1 through 5, or 
any other method receiving prior approval from the Administrator. Upon 
completion of the installation of continuous opacity monitoring systems 
(COMS) software as required in this regulation, compliance with the 
emissions limits set for opacity shall be determined by using data from 
a COMS except during saturated stack conditions (condensed water 
vapor). If the baghouse is operating within its normal operating 
parameters and a high opacity reading occurs it will be presumed that 
the occurrence was caused by saturated stack conditions and shall not 
be considered an excess emission.

[[Page 48737]]

    (1) The owner or operator shall maintain and operate CEMS for 
SO2, NO or NOX, a diluent and, for Units 4 and 5 
only, COMS, in accordance with 40 CFR 60.8 and 60.13, and appendix B of 
40 CFR part 60. Within six (6) months of promulgation of this 
regulation, the owner or operator shall install CEMS and COMS software 
which complies with the requirements of this regulation. The owner or 
operator of the Plant may petition the Administrator for extension of 
the six (6) month period for good cause shown. Completion of 40 CFR 
part 75 monitor certification requirements shall be deemed to satisfy 
the requirements under 40 CFR 60.8 and 60.13 and appendix B of part 60. 
The owner or operator shall comply with the quality assurance 
procedures for CEMS found in 40 CFR part 75, and all reports required 
thereunder shall be submitted to the Administrator. The owner or 
operator shall provide the Administrator notice in accordance with 40 
CFR 75.61.
    (2) Sulfur Dioxide. (i) For the purpose of determining compliance 
with this section, the sulfur dioxide inlet rate (in lb/MMBtu) shall be 
calculated using the daily average percent sulfur and Btu content of 
the coal combusted. The inlet sulfur concentration and Btu content 
shall be determined in accordance with American Society for Testing and 
Materials (ASTM) methods or any other method receiving prior approval 
from the Administrator. The analyses shall be done on as fired daily 
fuel samples collected before the coal pulverizers using ASTM methods 
or any other method receiving prior approval from the Administrator. 
The inlet sulfur dioxide concentration shall be calculated using the 
following formula:

Is = 2(%Sf)/GCV x 10\4\ English units

Where:

Is = sulfur dioxide inlet concentrations in pounds per 
million Btu;
%Sf = weight percent sulfur content of the fuel; and
GCV = Gross calorific value for the fuel in Btu per pound.

    (ii) The outlet SO2 emissions shall be determined from 
CEMS data gathered in accordance with this section.
    (3) Particulate Matter. Particulate matter testing shall be 
conducted annually and at least six (6) months apart, with the 
equipment within 90% of maximum operation in accordance with 40 CFR 
60.8 and appendix A to 40 CFR part 60. The owner or operator may test 
Units 1 and 2 together when both units are operating or may test them 
separately when one unit is out of service since Units 1 and 2 share a 
common stack. The owner or operator shall submit written notice of the 
date of testing no later than 21 days prior to testing. Testing may be 
performed on a date other than that already provided in a notice as 
long as notice of the new date is provided either in writing or by 
telephone or other means acceptable to the Administrator, and the 
notice is provided as soon as practicable after the new testing date is 
known, but no later than 7 days (or a shorter period as approved by the 
Administrator) in advance of the new date of testing.
    (4) Oxides of nitrogen. The total daily station-wide oxides of 
nitrogen emissions in pounds of NO2 per day shall be 
calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TP08SE99.007

Where:

TE = total station-wide nitrogen dioxide emissions (lb NO2/
day);
Eij = hourly average emissions rate of each unit (lb 
NO2/MMBtu);
Hij = hourly total heat input for each unit (MMBtu);
n = the number of units of coal burning equipment operating during the 
hour;
m = the number of operating hours in a day, from midnight to midnight.

    (5) Continuous emissions monitoring shall apply during all periods 
of operation of the coal burning equipment, including periods of 
startup, shutdown, and malfunction, except for CEMS breakdowns, 
repairs, calibration checks, and zero and span adjustments. Continuous 
monitoring systems for measuring sulfur dioxide, NOX, and 
diluent gas shall complete a minimum of one cycle of operation 
(sampling, analyzing, and data recording) for each successive 15-minute 
period. The one-hour averages shall be calculated using these data 
points. At least two data points must be used to calculate the one-hour 
averages. When emission data are not obtained because of continuous 
monitoring system breakdowns, repairs, calibration checks, or zero and 
span adjustments, emission data must be obtained by using other 
monitoring systems approved by the EPA to provide emission data for a 
minimum of 18 hours in at least 22 out of 30 successive boiler 
operating days. NOX emissions rates and quantities shall be 
reported as NO2 concentrations. When CEMS data is not 
available because of malfunctions, the unavailable NOX data 
will be replaced with a calculated value based on the average of the 
last valid data point and the next valid data point for purposes of 
calculating total station-wide nitrogen dioxide emissions.
    (6) 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.
    (7) Nothing herein shall limit EPA's ability to ask for a test at 
any time under section 114 of the Clean Air Act, 42 U.S.C. 7414, and 
enforce against any violation.
    (8) In order to provide reasonable assurance that the scrubbers for 
control of particulate matter from Units 1, 2, and 3 are being 
maintained and operated in a manner consistent with good air pollution 
control practice for minimizing emissions, the owner or operator shall 
comply with the following provisions:
    (i) The owner or operator shall develop a plan to monitor, record, 
and report parameter(s) indicative of the proper operation of the 
scrubbers to provide a reasonable assurance of compliance with the 
particulate matter limits in paragraph (d)(2) of this section. The 
owner or operator shall submit this plan to the Administrator no later 
than December 31, 1999. The owner or operator shall implement this plan 
within 30 days of approval by the Administrator and shall commence 
reporting the data generated pursuant to the monitoring plan in 
accordance with the schedule in paragraph (e)(8)(v) of this section.
    (ii) In the event that the owner or operator is unable to develop 
the plan required in paragraph (e)(8)(i) of this section due to 
technical difficulties, fails to submit the plan by December 31, 1999, 
or the Administrator disapproves the plan, the owner or operator shall 
install and operate devices to measure the pressure drop across each 
scrubber module and the total flow of scrubbing liquid to the venturi 
section of each scrubber module. The data from these instruments shall 
be monitored and recorded electronically. A minimum of one reading 
every 15 minutes shall be used to calculate an hourly average which 
shall be recorded and stored for at least a five-year period. The owner 
or operator shall report in an electronic format either all hourly 
data, or one-hour averages deviating by more than 30% from the levels 
measured during the last particulate matter stack test that 
demonstrated compliance with the limit in this regulation. The owner or 
operator shall implement this requirement no later than February 28, 
2000 if it fails to submit the plan by December 31, 1999; or no later 
than 60 days after the Administrator's disapproval of the plan.

[[Page 48738]]

    (iii) The monitoring required under paragraphs (e)(8)(i) and 
(e)(8)(ii) of this section shall apply to each Unit at all times that 
the Unit is operating, except for monitoring malfunctions, associated 
repairs, and required quality assurance or control activities 
(including, as applicable, calibration checks and required zero and 
span adjustments). A monitoring malfunction is any sudden, infrequent, 
not reasonably preventable failure of the monitoring to provide valid 
data. Monitoring failures that are caused in part by poor maintenance 
or careless operation are not malfunctions.
    (iv) The owner or operator may petition the Administrator for an 
extension of the December 31, 1999 deadline. Such extension shall be 
granted only if the owner or operator demonstrates to the satisfaction 
of the Administrator that:
    (A) The delay is due to technical infeasibility beyond the control 
of the owner or operator; and
    (B) The requested extension, if granted, will allow the owner or 
operator to successfully complete the plan.
    (v) The owner or operator shall submit to the Administrator reports 
of the monitoring data required by this regulation quarterly. The 
reports shall be postmarked within 30 days of the end of each calendar 
quarter.
    (vi) The owner or operator shall develop and document a quality 
assurance program for the monitoring and recording instrumentation. 
This program shall be updated or improved as requested by the 
Administrator.
    (vii) In the event that a program for parameter monitoring on Units 
1, 2, and 3 is approved pursuant to the Compliance Assurance Monitoring 
rule, 40 CFR part 64, such program will supersede the provisions 
contained in paragraph (e)(8) of this section.
    (f) Reporting and recordkeeping requirements. Unless otherwise 
stated all requests, reports, submittals, notifications, and other 
communications to the 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 
limitation in this regulation and upon completion of the installation 
of CEMS and COMS as required in this regulation, the owner or operator 
shall comply with the following requirements:
    (1) For each emissions limit in this regulation, comply with the 
notification and recordkeeping requirements for CEMS compliance 
monitoring in 40 CFR 60.7(c) and (d), and the CEMS data assessment 
report requirements of 40 CFR part 75.
    (2) Furnish the Administrator with reports describing the results 
of the annual particulate matter emissions tests postmarked within 
sixty (60) days of completing the tests. Each report shall include the 
following information:
    (i) The test date;
    (ii) The test method;
    (iii) Identification of the coal burning equipment tested;
    (iv) Values for stack pressure, temperature, moisture, and 
distribution of velocity heads;
    (v) Average heat input;
    (vi) Emissions data, identified by sample number, and expressed in 
pounds per MMBtu;
    (vii) Arithmetic average of sample data expressed in pounds per 
MMBtu; and
    (viii) A description of any variances from the test method.
    (3) Excess emissions report. (i) For excess emissions, the owner or 
operator shall notify the Administrator by telephone or in writing 
within one business day (``initial notification''). A complete written 
report of the incident shall be submitted to the Administrator within 
ten (10) business days of the initial notification. The complete 
written report shall include:
    (A) The name and title of the person reporting;
    (B) The identity and location of the Plant and Unit(s) involved, 
and the emissions point(s), including bypass, from which the excess 
emissions occurred or are occurring;
    (C) The time and duration or expected duration of the excess 
emissions;
    (D) The magnitude of the excess emissions expressed in the units of 
the applicable emissions limitation and the operating data and 
calculations used in determining the magnitude of the excess emissions;
    (E) The nature of the condition causing the excess emissions and 
the reasons why excess emissions occurred or are occurring;
    (F) If the excess emissions were the result of a malfunction, the 
steps taken to remedy the malfunction and the steps taken or planned to 
prevent the recurrence of such malfunction;
    (G) For an opacity exceedance, the 6-minute average opacity 
monitoring data greater than 20% 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 
Administrator in writing of the exact time and date when the excess 
emissions stopped. Compliance with the excess emissions notification 
provisions of this secton shall not excuse or otherwise constitute a 
defense to any violations of this section or of any law or regulation 
which such excess emissions or malfunction may cause.
    (g) Equipment Operations. At all times, including periods of 
startup, shutdown, and malfunction, the owner or operator shall, to the 
extent practicable, maintain and operate the Plant including associated 
air pollution control equipment in a manner consistent with good air 
pollution control practices for minimizing emissions. Determination of 
whether acceptable operating and maintenance procedures are being used 
will be based on information available to the Administrator which may 
include, but is not limited to, monitoring results, opacity 
observations, review of operating and maintenance procedures, and 
inspection of the Plant. With regard to the operation of the baghouses 
on Units 4 and 5, placing the baghouses in service before coal fires 
are initiated will constitute compliance with this paragraph. (If the 
baghouse inlet temperature cannot achieve 185 degrees Fahrenheit using 
only gas fires, the owner or operator will not be expected to place 
baghouses in service before coal fires are initiated; however, the 
owner or operator will remain subject to the requirements of this 
paragraph.)
    (h) Enforcement. (1) Notwithstanding any other provision in this 
implementation plan, any credible evidence or information relevant to 
whether the Plant would have been in compliance with applicable 
requirements if the appropriate performance or compliance test had been 
performed, can be used to establish whether or not the owner or 
operator has violated or is in violation of any standard in the plan.
    (2) During periods of 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;

[[Page 48739]]

    (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, et seq.

Subpart GG--New Mexico

    2. Subpart GG is proposed to be amended by adding Sec. 52.1641 to 
read as follows:


Sec. 52.1641  Federal Implementation Plan for Four Corners Power Plant, 
Navajo Nation.

    The Federal Implementation Plan regulating emissions from the Four 
Corners Power Plant near Farmington, New Mexico is codified at 40 CFR 
49.21.

[FR Doc. 99-23277 Filed 9-7-99; 8:45 am]
BILLING CODE 6560-50-P