[Federal Register Volume 65, Number 17 (Wednesday, January 26, 2000)]
[Notices]
[Pages 4244-4245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1838]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6529-3]


Notice of Correction and Clarification of Statements Contained in 
Notice of Proposed Source Specific Federal Implementation Plan for Four 
Corners Power Plant; Navajo Nation and in Notice of Proposed Source 
Specific Federal Implementation Plan for Navajo Generating Station; 
Navajo Nation

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Correction and clarification.

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SUMMARY:  EPA is hereby correcting and clarifying certain statements 
contained in the Notice of Proposed Source Specific Federal 
Implementation Plan for Four Corners Power Plant; Navajo Nation as well 
as certain similar statements contained in the Notice of Proposed 
Source Specific Federal Implementation Plan for Navajo Generating 
Station; Navajo Nation relating to the Navajo Nation's authority under 
the Clean Air Act to regulate emissions from the Four Corners Power 
Plant and the Navajo Generating Station, coal-fired power plants 
located on the Navajo Indian Reservation near Farmington, New Mexico 
and Page, Arizona, respectively.

FOR FURTHER INFORMATION CONTACT:  David R. LaRoche, Office of Air and 
Radiation (OAR 6101-A), U.S. Environmental Protection Agency, Ariel 
Rios Building, 1200 Pennsylvania Avenue, N.W., Washington, DC 20460; 
(202) 564-7416.

SUPPLEMENTARY INFORMATION:  On September 8, 1999, EPA published two 
notices in the Federal Register requesting comment on proposed source-
specific federal implementation plans (FIPs) under the Clean Air Act 
(CAA or the Act) for the Four Corners Power Plant (FCPP) and the Navajo 
Generating Station (NGS). See 64 FR 48731 (September 8, 1999); 64 FR 
48725 (September 8, 1999). As detailed more fully in those notices, EPA 
intends the proposed FIPs, if adopted, to federalize provisions from 
the New Mexico and Arizona State Implementation Plans with which FCPP 
and NGS, respectively, had previously been complying. By letter dated 
November 8,

[[Page 4245]]

1999, Arizona Public Service Company (APS) submitted comments on the 
proposed FIP for FCPP and, among other things, raised questions about 
certain statements contained in the proposed FIP relating to the Navajo 
Nation's authority to regulate emissions from FCPP under the CAA. 
Similar statements relating to the Navajo Nation's CAA authority to 
regulate emissions from NGS are contained in the proposed FIP for that 
facility. EPA is hereby correcting and clarifying these statements. EPA 
had intended to correct and clarify these statements in the preambles 
to the final FIPs, which have not yet been promulgated. However, EPA 
believes that it is appropriate to correct and clarify these statements 
at this time because of confusion they may have caused in pending 
litigation involving EPA's Tribal Authority Rule (TAR), 63 FR 7254 
(Feb. 12, 1998), under the Clean Air Act.
    EPA stated in the preamble to the proposed FIP for FCPP that 
``[u]pon 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.'' 64 FR at 48732. Similarly, in the preamble to the 
proposed FIP for NGS, EPA stated that ``[u]pon 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.'' 64 FR at 
48726. These and several other statements in the preambles to the 
proposed FIPs mistakenly suggested that EPA had determined the question 
of whether the Navajo Nation may regulate FCPP and NGS under the CAA. 
However, as EPA will reiterate in the preambles to the final FIPs for 
both facilities, the proposed FIPs were based on federal authority 
only. In order to exercise such federal authority over FCPP and NGS, 
EPA did not need to, nor did it, decide whether the Navajo Nation may 
regulate those facilities under the CAA.
    EPA is aware of covenants, contained in leases between FCPP and the 
Navajo Nation and between NGS and the Navajo Nation, relating to the 
Nation's authority to regulate these facilities. APS and NGS contend 
that these covenants prevent the Navajo Nation from regulating either 
of the facilities under the CAA. While in the preamble to the final TAR 
EPA expressed its view that Congress has delegated authority to 
eligible tribes to implement CAA programs over all air resources within 
the exterior boundaries of their reservations, EPA also noted that the 
Agency: will consider on a case-by-case basis whether special 
circumstances exist that would prevent a tribe from implementing a CAA 
program over its reservation. * * * If EPA determines that there are 
special circumstances that would preclude the Agency from approving a 
tribal program over a reservation area, the Regional Administrator 
would limit the tribal approval accordingly under [the TAR]. 63 FR at 
7256.
    In issuing the proposed FIPs, EPA did not determine whether the 
Navajo Nation may regulate FCPP or NGS in light of the covenants. EPA 
is not required to, and does not intend to, decide that issue in the 
context of taking final action on the proposed FIPs. Moreover, to date, 
the Navajo Nation has not applied to be treated in the same manner as a 
state (TAS) for purposes of regulating FCPP or NGS under the CAA. If 
the Navajo Nation applies to run a CAA regulatory program covering FCPP 
or NGS, EPA would evaluate at that time the effect, if any, of the 
covenants on the Nation's authority to regulate those facilities under 
the CAA. Before any such determinations would be made, FCPP, NGS and 
the public would have the opportunity, both at the time of the TAS 
eligibility application, as well as at the time the Navajo Nation 
applies for CAA program approval, to express their views to EPA.

    Dated: January 20, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-1838 Filed 1-25-00; 8:45 am]
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