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

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