[Federal Register Volume 81, Number 150 (Thursday, August 4, 2016)]
[Rules and Regulations]
[Pages 51320-51322]
[FR Doc No: 2016-18254]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2016-0466; Directorate Identifier 2014-NM-188-AD;
Amendment 39-18604; AD 2016-16-06]
RIN 2120-AA64

Airworthiness Directives; Airbus Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are adopting a new airworthiness directive (AD) for certain
Airbus Model A300 B4-603, B4-605R, and B4-622R airplanes; and Model
A310-304, -324, and -325 airplanes. This AD was prompted by a report of
a crack found on door frame (FR) 73A between stringers 24 and 25. This
AD requires inspections around the rivet heads of the seal retainer
run-out holes at certain frames and corrective actions if necessary. We
are issuing this AD to detect and correct cracking of the door frame,
which could result in reduced structural integrity of the airplane.

DATES: This AD is effective September 8, 2016.
    The Director of the Federal Register approved the incorporation by
reference of certain publications listed in this AD as of September 8,
2016.

ADDRESSES: For service information identified in this final rule,
contact Airbus SAS, Airworthiness Office--EAW, 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax
+33 5 61 93 44 51; email<EMAIL_ADDRESS>Internet
http://www.airbus.com. You may view this referenced service information
at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW.,
Renton, WA. For information on the availability of this material at the
FAA, call<PHONE_NUMBER>. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-
0466.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-
0466; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this AD, the regulatory evaluation, any comments received, and
other information. The street address for the Docket Office (telephone
800-647-5527) is Docket Management Facility, U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue SW., Renton, WA 98057-3356; telephone<PHONE_NUMBER>;
fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would apply to certain Airbus Model A300
B4-603, B4-605R, and B4-622R airplanes; and Model A310-304, -324, and -
325 airplanes. The NPRM published in the Federal Register on February
18, 2016 (81 FR 8155) (``the NPRM''). The NPRM was prompted by a report
of a crack found on door FR 73A between stringers 24 and 25. The NPRM
proposed to require inspections around the rivet heads of the seal
retainer run-out holes at certain frames and corrective actions if
necessary. We are issuing this AD to detect and correct cracking of the
door frame, which could result in reduced structural integrity of the
airplane.
    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Union, has issued EASA AD
2014-0202R1, dated September 19, 2014 (referred to after this as the
Mandatory Continuing Airworthiness Information, or ``the MCAI''), to
correct an unsafe condition for certain Airbus Model A300 B4-603, B4-
605R, and B4-622R airplanes; and Model A310-304, -324, and -325
airplanes The MCAI states:

    During the preparation phase for conversion of an A300-600
aeroplane from passenger to freighter configuration, a crack was
detected on door frame (FR) 73A, between stringer (STRG) 24 and STRG
25.
    DGAC [Direction G[eacute]n[eacute]rale de l'Aviation Civile]
France had issued AD 1999-013-276R1 to require inspections at FR 73A
in accordance with the instructions of Airbus Service Bulletin (SB)
A310-53-2107 or SB A300-53-6116, as applicable. However, the new
crack was found in an area not covered by the existing inspection
and is therefore addressed by this new [EASA] AD. (DGAC France AD
1999-013-276R1 remains in place).
    Further investigations identified that, on A300-600 aeroplanes,
the areas at FR 56A and FR 57A have the same design and material as
at FR 73A.
    This condition, if not detected and corrected, could affect the
structural integrity of the airframe.
    For the reasons described above, this [EASA] AD requires
repetitive [high frequency eddy current (HFEC)] inspections of the
rivet heads of the seal retainer run out holes to detect cracks and,
depending on findings, accomplishment of corrective actions
[repair].
    Even though no crack has been identified at FR 56A and FR 57A,
as a preventive measure, the inspection is extended to these areas.
On A310 aeroplanes, only the area at FR 73A needs to be inspected.
    This [EASA] AD is revised to reduce the applicability to
aeroplanes in post-MOD 06924 configuration.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-
0466.

Comments

    We gave the public the opportunity to participate in developing
this AD. The following presents the comment received on the NPRM and
the FAA's response to the comment.

Request To Reduce Compliance Time

    An anonymous commenter asked why the NPRM has not yet been enacted.
The commenter stated that they do not want to be on a plane that lacks
structural integrity because of cracks on the door frame.
    ADs are federal regulations that have the force and effect of law.
In simple terms, the Administrative Procedure Act (APA), Title 5 of the
United States Code (5 U.S.C.) Sec.  553, requires all regulatory
agencies such as the FAA to provide the public with notice and time for
comment prior to issuing a regulation. ADs are issued in accordance
with the public rulemaking procedures of the APA, FAA procedures in 14
CFR part 11, and several other relevant regulations. For this AD, we
did not substantiate that a critical, immediate safety of flight
problem exists that would warrant issuing a rule without prior notice
or opportunity for public comment. We have not changed this AD in this
regard.

Conclusion

    We reviewed the relevant data, considered the comment received, and
determined that air safety and the public interest require adopting
this AD as proposed except for minor editorial changes. We have
determined that these minor changes:
     Are consistent with the intent that was proposed in the
NPRM for correcting the unsafe condition; and
     Do not add any additional burden upon the public than was
already proposed in the NPRM.

Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletins A300-53-6175 and A310-53-2138,
both dated May 28, 2014. The service information describes procedures
for doing HFEC inspections around the rivet heads of the seal retainer
run-out holes at certain frame locations on the left-hand and right-
hand sides. This service information is reasonably available because
the interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section.

Costs of Compliance

    We estimate that this AD affects 24 airplanes of U.S. registry.
    We estimate the following costs to comply with this AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost on U.S.
             Action                    Labor cost         Parts cost      Cost per product        operators
----------------------------------------------------------------------------------------------------------------
Inspection......................  11 work-hours x $85              $0   $935 per inspection  $22,440 per
                                   per hour = $935                       cycle.               inspection cycle.
                                   per inspection
                                   cycle.
----------------------------------------------------------------------------------------------------------------

    We have received no definitive data that would enable us to provide
cost estimates for the on-condition actions specified in this AD.

Authority for this Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on

products identified in this rulemaking action.

Regulatory Findings

    We determined that this AD will not have federalism implications
under Executive Order 13132. This AD will not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
    For the reasons discussed above, I certify that this AD:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

2016-16-06 Airbus: Amendment 39-18604; Docket No. FAA-2016-0466;
Directorate Identifier 2014-NM-188-AD.

(a) Effective Date

    This AD is effective September 8, 2016.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to Airbus Model A300 B4-603, A300 B4-605R, A300
B4-622R, A310-304, A310-324, and A310-325 airplanes; certificated in
any category; all manufacturer serial numbers (MSNs) in post-
modification (MOD) 06924 configuration, except MSNs 464, 477, 479,
481, 482, 483, 484, and 488.
    Note 1 to paragraph (c) of this AD: MSNs 464, 477, 479, 481,
482, 483, 484 and 488 partially embodied MOD 06924 by means of
modification proposal D05902.

(d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

(e) Reason

    This AD was prompted by a report of a crack found on door frame
(FR) 73A between stringers 24 and 25. We are issuing this AD to
detect and correct cracking of the door frame, which could result in
reduced structural integrity of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Inspections for Cracking

    At the later of the compliance times specified in paragraphs
(g)(1) and (g)(2) of this AD: Do a high frequency eddy current
(HFEC) inspection for any crack around the rivet heads of the seal
retainer run-out holes at FR 56A, FR 57A, and FR 73A, left-hand (LH)
and right-hand (RH) sides on Model A300-600 airplanes; and at FR
73A, LH and RH sides on Model A310 airplanes; in accordance with the
Accomplishment Instructions of Airbus Service Bulletin A310-53-2138,
dated May 28, 2014; or Airbus Service Bulletin A300-53-6175, dated
May 28, 2014; as applicable. Repeat the HFEC inspection thereafter
at intervals not to exceed 7,500 flight cycles.
    (1) Before the accumulation of 32,000 total flight cycles.
    (2) Within 36 months after the effective date of this AD, or
before the accumulation of 36,000 total flight cycles, whichever
occurs first.

(h) Corrective Actions

    If any crack is found during any inspection required by
paragraph (g) of this AD, repair before further flight using a
method approved by the Manager, International Branch, ANM-116,
Transport Airplane Directorate, FAA; or the European Aviation Safety
Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

(i) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
has the authority to approve AMOCs for this AD, if requested using
the procedures found in 14 CFR 39.19. In accordance with 14 CFR
39.19, send your request to your principal inspector or local Flight
Standards District Office, as appropriate. If sending information
directly to the International Branch, send it to ATTN: Dan Rodina,
Aerospace Engineer, International Branch, ANM-116, Transport
Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-
3356; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>. Information may be
emailed to<EMAIL_ADDRESS>Before using any
approved AMOC, notify your appropriate principal inspector, or
lacking a principal inspector, the manager of the local flight
standards district office/certificate holding district office.
    (2) Contacting the Manufacturer: For any requirement in this AD
to obtain corrective actions from a manufacturer, the action must be
accomplished using a method approved by the Manager, International
Branch, ANM-116, Transport Airplane Directorate, FAA; EASA; or
Airbus's EASA DOA. If approved by the DOA, the approval must include
the DOA-authorized signature.
    (3) Required for Compliance (RC): Except as required by
paragraph (h) of this AD: If any service information contains
procedures or tests that are identified as RC, those procedures and
tests must be done to comply with this AD; any procedures or tests
that are not identified as RC are recommended. Those procedures and
tests that are not identified as RC may be deviated from using
accepted methods in accordance with the operator's maintenance or
inspection program without obtaining approval of an AMOC, provided
the procedures and tests identified as RC can be done and the
airplane can be put back in an airworthy condition. Any
substitutions or changes to procedures or tests identified as RC
require approval of an AMOC.

(j) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI)
EASA AD 2014-0202R1, dated September 19, 2014, for related
information. This MCAI may be found in the AD docket on the Internet
at http://www.regulations.gov by searching for and locating Docket
No. FAA-2016-0466.

(k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference (IBR) of the service information listed
in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless this AD specifies otherwise.
    (i) Airbus Service Bulletin A300-53-6175, dated May 28, 2014.
    (ii) Airbus Service Bulletin A310-53-2138, dated May 28, 2014.
    (3) For service information identified in this AD, contact
Airbus SAS, Airworthiness Office--EAW, 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96;
fax +33 5 61 93 44 51; email<EMAIL_ADDRESS>
Internet http://www.airbus.com.
    (4) You may view this service information at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For
information on the availability of this material at the FAA, call
425-227-1221.
    (5) You may view this service information that is incorporated
by reference at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA, call<PHONE_NUMBER>, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on July 21, 2016.
Michael Kaszycki,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2016-18254 Filed 8-3-16; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 84, Number 200 (Wednesday, October 16, 2019)]
[Notices]
[Page 55320]
[FR Doc No: 2019-22459]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-3423-EM; Docket ID FEMA-2019-0001]

North Carolina; Amendment No. 1 to Notice of an Emergency
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice amends the notice of an emergency declaration for
the State of North Carolina (FEMA-3423-EM), dated September 3, 2019,
and related determinations.

DATES: This amendment was issued September 20, 2019.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the incident
period for this emergency is closed effective September 9, 2019.

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Pete Gaynor,
Acting Administrator, Federal Emergency Management Agency.
[FR Doc. 2019-22459 Filed 10-15-19; 8:45 am]
 BILLING CODE 9111-23-P


Comment Info: =================

General Comment:OSHA forms for recording work-related injuries and illnesses: OSHA Form 300 (Log of Work-Related Injuries and Illnesses), OSHA Form 300A (Summary of Work-Related Injuries and Illnesses), OSHA Form 301 (Injury and Illness Incident Report)


EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 1 Mahktesheim Agan ( MANA)

and Comments on Azinphos methyl Monty Eberhart, Ph. D., CIH Dan Van Goethem, M. S., DABT EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 2 General Comments

BCS and MANA respect the role of the HSRB in providing guidance and oversight to those sponsoring intentional dosing studies for submission to EPA.

HSRB's focus should be on the ethical and scientific considerations pertaining to study conduct including the scientific justification and risk/ benefit questions.

It is unfair to ask the HSRB to render WOE judgments about these studies in a much broader regulatory context with only a small sampling of the available information and data.

We appreciate the opportunity to provide some context on the AZM human volunteer studies and EPA's ethical and scientific opinions and questions. EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 3 Background on Azinphos methyl ( AZM)

It is OP insecticide first registered in 1959 and still widely used in tree fruit where crop production activities involve high potential for worker exposures.

The safety database for AZM is current and complete, and includes both animal studies and studies in human volunteers.

The animal studies demonstrate that AZM is not carcinogenic,

mutagenic, teratogenic or a reproductive toxicant and that inhibition of cholinesterase ( ChE) is the most sensitive indicator of exposure.

The human studies confirm that humans are no more, and perhaps less, sensitive than animals to AZM's cholinesterase inhibiting effects. EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 4 Rationale for Conducting Human Volunteer Studies  what activity specific exposure values to use in deriving MOE estimates  what dermal absorption factor to use in extrapolating the worker's dermal exposure to a systemic dose   whether humans were more sensitive than animals to the anti cholinesterase properties of AZM   the appropriate AZM cholinesterase NOAEL( s) to use in deriving margin of exposure ( MOE) estimates Dietary Safety Worker Safety Regulatory Safety Questions EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 5 Human Volunteer Studies with AZM ( 1998 1999)

Absorption, Excretion, Balance and Pharmacokinetics of 14 C Radioactivity after Single Dose Dermal Application of Three Dose Levels of 14 C Labeled Guthion to Healthy Volunteers.

A Randomised Double Blind Ascending Single Oral Dose Study with Azinphos Methyl to Determine the No Effect Level on Plasma and RBC Cholinesterase Activity.

A Randomised Double Blind Placebo Controlled Study with Azinphos

Methyl to Determine the No Effect Level on Plasma and RBC Cholinesterase Activity After Repeated Doses. EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 6 Human Volunteer Studies   Summary of Results

Dermal absorption and PK study demonstrated that

88% of a dermally absorbed dose is excreted in urine over 4.5 days, and MSMB is a stable metabolite for biological monitoring of workers.

mean dermal absorption of WP formulation was 21.9% ( similar to the value of 16% obtained by Feldman and Maibach, 1974).

Single dose oral study demonstrated that

A single dose of 1.0 and 0.75 mg/ kg/ day had no effect on plasma or erythrocyte ChE activity in male and female volunteers, respectively ( rat NOAEL < 1.0 mg/ kg/ day).

Repeat dose oral study demonstrated that

28 day repeated doses of 0.25 mg/ kg/ day had no effect on plasma or erythrocyte ChE activity in male volunteers ( similar to the 30 day NOAEL of 0.29 mg/ kg/ day obtained by Rider et al., 1972). EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 7 Human Volunteer Studies   Use of Data

Knowledge gained from these studies was used to:

Design and conduct an extensive AZM specific biological monitoring program for workers ( required by EPA),

Confirm that 1.0 and 0.25 mg/ kg/ day are single and 28 day NOAELS in humans as expected based on existing animal and human data, and

Further increase confidence that humans are not more sensitive to the ChE inhibiting properties of AZM than animals.

Regulatory authorities using these data in regulatory decisions include:

California Department of Pesticide Regulation ( CDPR)

Australian Pesticides and Veterinary Medicine Authority

European Union ( proposed by Rapporteur Member State) EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 8 Ethical Considerations Before the HSRB

BCS and MANA strongly believe that all three AZM human volunteer studies were conducted in an ethical manner.

With respect to the 28 day oral study being reviewed by HSRB:

we agree with EPA's interpretation that there is not clear and convincing evidence that the conduct of this study was fundamentally unethical

we disagree with EPA's interpretation that the study's value was limited to establishing a human ChE NOAEL, and that no evidence of use to establish RfDs, REIs, or safe levels for workers exists

we disagree the informed consent materials did not identify the supervising doctor or contain a discussion of who would benefit from the study, or that the protocol did not contain any discussion of the potential risks to subjects or benefits to society

We are open to ideas on ways to improve future informed consent materials. EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 9 Scientific Issues Before the HSRB

BCS and MANA agree with the EPA that:

the 0.25 mg/ kg/ day NOAEL from the 28 day oral volunteer study is appropriate for evaluating worker safety, and

that interspecies and gender differences with respect to ChE inhibition would not be expected at these dose levels.

BCS and MANA do not agree with the EPA that:

rat rather than human dermal absorption data should be used for route

toroute extrapolations when evaluating worker safety, and

the 28 day human volunteer study is not sufficiently robust to inform the interspecies uncertainty factor for cumulative risk. Exposure Assessment Approaches A. Passive Dosimetry  Lower Tier B. Biological Monitoring  Higher Tier Inhalation Exposure Dermal Exposure Systemic Dose Feces Urine 100% absorption assumed dermal absorption factor ( rat)

Inhalation Exposure Dermal Exposure Systemic Dose Feces Urine 100% absorption assumed dermal absorption factor ( human)

Generic Data Compound Specific Data modified from: Eberhart, D. C., Methods of Pesticide Exposure Assessment. Plenum Press, New York, 1995 EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 11 AZM Lower vs Higher Tier Exposure Assessment Dermal Exposure ( µ g/ lb AI) Dermal Absorption (%) Absorbed Dose ( µ g/ kg/ day)

Passive Dosimetry ( lower tier)

Biological Monitoring ( higher tier) 25.7 22.5 19.0 19.0 1.40 1.22 Human Dermal Absorption Data Passive Dosimetry ( lower tier)

Biological Monitoring ( higher tier) 25.7 10.2 41.7 41.7 3.06 1.22 Rat Dermal Absorption Data EPA Human Subjects Review Board Meeting ° April 5, 2006 ° Slide 12 Urinary Metabolites of Molinate* in Mammals Species Rat Mouse Rabbit Dog Monkey Human C oxidation 32% 50% 63% 36% 43% 39% S oxidation 29% 21%

7% 33% 19%

1% Th cleavage 33% 23%

5% 28%

1%

ND Primary biotransformation pathways from: Wickramaratne et al., Reg. Tox. Pharm. 27, 112 18 ( 1998)

* molinate is a thiocarbamate herbicide


[Federal Register: September 12, 2006 (Volume 71, Number 176)]
[Proposed Rules]
[Page 53631-53639]
[DOCID:fr12se06-25]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R09-OAR-2006-0184; FRL-8218-5]

Source-Specific Federal Implementation Plan for Four Corners
Power Plant; Navajo Nation

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

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: Any comments on this proposal must arrive by November 6, 2006.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2006-0184, by one of the following methods:
    (1) Federal eRulemaking portal: http://www.regulations.gov. Follow

the on-line instructions.
    (2) E-mail<EMAIL_ADDRESS>    (3) Mail or deliver: Rebecca Rosen (AIR-2), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
    Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov,

including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through the http://www.regulations.gov or e-

mail. http://www.regulations.gov is an ``anonymous access'' system, and EPA

will not know your identity or contact information unless you provide
it in the body of your comment. If you send e-mail directly to EPA,
your e-mail address will be automatically captured and included as part
of the public comment. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment.
    Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA Region

IX, 75 Hawthorne Street, San Francisco, California. While all documents
in the docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Rebecca Rosen, EPA Region IX, (415)
947-4152<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.

Table of Contents

I. Background
    A. Action
    B. Facility
    C. Attainment Status
    D. Historical Overview of FCPP FIP Actions
II. Basis for Proposed Action
    A. EPA's Authority to Promulgate a FIP in Indian Country
    B. Relation to Regional Haze Rule
III. Four Corners Power Plant Facility Description
IV. Summary of FIP provisions
    A. Proposed FIP Standards
    B. Other Requirements
    C. Compliance Schedule
V. Solicitation of Comments
VI. Administrative Requirements
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    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 13175: 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 promulgate a FIP to establish
federally enforceable emissions limitations for sulfur dioxide
(SO2), nitrogen oxides (NOX), and total
particulate matter (PM) applicable to the FCPP. The FIP also proposes
federally enforceable emissions limitations for opacity and control
measures for dust.

B. Facility

    FCPP is a privately owned and operated coal-fired power plant
located on the Navajo Indian Reservation near Farmington, New Mexico.
Based on lease agreements signed in 1960, FCPP was constructed and has
been operating on real property held in trust by the Federal government
for the Navajo Nation. The facility consists of five coal-fired
electric utility steam generating units with a total capacity in excess
of 2000 megawatts (MW).

C. Attainment Status

    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''). See 40 CFR
81.332. The proposed FCPP FIP establishes federally enforceable
emissions limitations that are more stringent than, or at least as
stringent as, the emissions limitations with which FCPP has
historically complied. Therefore, EPA believes that air quality in this
area will be positively impacted by this action.

D. Historical Overview of FCPP FIP Actions

    When the Clean Air Act was amended in 1990, Congress included a new
provision, Section 301(d), granting EPA authority to treat Tribes in
the same manner as States where appropriate. See 40 U.S.C. 7601(d). In
1998, EPA promulgated regulations known as the Tribal Authority Rule
(TAR). See 40 CFR parts 9, 35, 49, 50 & 81, 63 FR 7254 (February 12,
1998). EPA's promulgation of the TAR clarified, among other things,
that State air quality regulations generally do not, under the Clean
Air Act, apply to facilities located anywhere within the

exterior boundaries of Indian reservations. See 63 FR at 7254, 7258
(noting that unless a state has explicitly demonstrated its authority
and been expressly approved by EPA to implement Clean Air Act programs
in Indian country, EPA is the appropriate entity to implement Clean Air
Act programs prior to tribal primacy), Arizona Public Service Company
v. E.P.A., 211 F.3d 1280 (DC Cir. 2000), cert. denied sub nom, Michigan
v. E.P.A., 532 U.S. 970 (2001) (upholding the TAR), see also Alaska v.
Native Village of Venetie Tribal Government, 533 U.S. 520, 526 n.1
(1998) (primary jurisdiction over Indian country generally lies with
Federal government and tribes, not with states).
    Prior to the addition of Section 301(d) and promulgation of the
TAR, some States had mistakenly included emissions limitations in their
State Implementation Plans (SIPs) which they believed could apply to
private facilities operating on adjacent Indian reservations. Such was
the case for FCPP. The State Implementation Plan for New Mexico
contained emissions limitations purported to apply to FCPP and with
which FCPP was complying.
    EPA recognized that New Mexico's SIP emissions limits could not
apply to FCPP, and on September 8, 1999, EPA proposed a source-specific
FIP for the FCPP. See 64 FR 48731 (September 8, 1999). The 1999
proposed FIP stated: ``Although the facility has been historically
regulated by New Mexico since its construction, the state lacks
jurisdiction over the facility or its owners or operations for CAA
compliance or enforcement purposes.'' See 64 FR 48733. EPA intended for
the 1999 FCPP FIP to ``federalize'' the emissions limitations that New
Mexico had erroneously included in its State Implementation Plan. Id.
at 64 FR 48736. EPA received comments on the proposed 1999 FIP but did
not take action finalizing the proposal.
    Since EPA's 1999 FIP proposal, Arizona Public Service (APS), the
operating agent for FCPP, has been in negotiation with the Navajo
Nation, EPA Region IX, the Environmental Defense, New Mexico Citizens
for Clean Air and Water, Western Resources Advocates, and the National
Park Service. Recently, APS agreed to install emission control devices
and take other measures to significantly reduce the amount of
SO2 that will be emitted from its various boilers.
    Today's FIP proposal, therefore, establishes a significantly lower
emission limit for SO2 than the one set forth in the 1999
proposed FIP, and also promulgates federally enforceable emissions
limits for PM and NOX. EPA is also proposing to establish an
emissions limitation for opacity and a requirement for control measures
to limit dust emissions. NOX emissions are also further
limited by the Federal Acid Rain Program. FCPP is subject to a
plantwide averaging plan limit of 0.62 pounds per million British
thermal unit (lbs/MMbtu) for NOX.

II. Basis for Proposed Action

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

    As mentioned above, States generally lack authority to administer
Clean Air Act programs in Indian country. See Alaska v. Native Village
of Venetie Tribal Government, 533 U.S. 520, 526 n.1 (1998). In the
preamble to the proposed and final 1998 TAR, EPA discusses generally
the legal basis under the CAA by which EPA is authorized to regulate
sources of air pollution in Indian country. See 59 FR 43956; 63 FR
7253. EPA concluded that the CAA authorizes EPA to protect air quality
throughout Indian country. See 63 FR 7262; 59 FR 43960-43961 (citing,
among other things, 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 ``[s]hall promulgate without
unreasonable delay such Federal implementation plan provisions as are
necessary or appropriate to protect air quality, consistent with the
provisions of sections 304(a) [sic] and 301(d)(4), if a tribe does not
submit a tribal implementation plan meeting the completeness criteria
of 40 CFR part 51, Appendix V, or does not receive EPA approval of a
submitted tribal implementation plan.'' See 63 FR at 7273 (codified at
40 CFR 49.11(a)).\1\
---------------------------------------------------------------------------

    \1\ In the preamble to the final TAR, EPA explained that it was
inappropriate to treat Tribes in the same manner as States with
respect to section 110(c) of the Act, which directs 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.
---------------------------------------------------------------------------

    Since there is not currently an approved Implementation Plan
covering FCPP, 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 establish federally enforceable emissions limits for
SO2, NOX, PM, and opacity, and control measures
for dust.
    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 FIP to remedy an existing
regulatory gap under the Act with respect to FCPP to provide for
maintenance of the national ambient air quality standards and to
advance the goal of visibility protection. Given the magnitude of the
emissions from the plant, EPA believes that the proposed FIP provisions
are necessary or appropriate to protect air quality on the Reservation.

B. Relation to Regional Haze Rule

    The Clean Air Act defines sources potentially subject to Best
Available Retrofit Technology (BART) as major stationary sources with
the potential to emit greater than 250 tons or more of any pollutant,
and which were placed into operation between 1962 and 1977. See Clean
Air Act sections 169(A)(b)(2)(A) and (g)(7). EPA promulgated
regulations addressing regional haze in 1999. 64 FR 35714 (July 1,
1999), codified at 40 CFR part 51, subpart P. These regulations require
all States to submit implementation plans that, among other measures,
contain either emission limits representing BART for certain sources
constructed between 1962 and 1977, or alternative measures that provide
for greater reasonable progress than BART. 40 CFR 51.308(e).
    As explained in the regional haze rulemaking, Tribes are not
required to submit regional haze implementation plans but they may seek
approval to develop a regional haze program under 40 CFR part 49. 64 FR
at 35759. EPA noted that pursuant to its authority under section
301(d)(4) of the CAA, EPA will promulgate FIPs within reasonable
timeframes to protect air quality in Indian country and take on the
responsibility of meeting the requirements of the regional haze rule
consistent with the provisions of 40 CFR 49.11(a). Id.
    EPA notes that there are only two major sources of SO2
on the Navajo Reservation that are potentially subject to the BART
requirements under the regional haze rule at 40 CFR 51.308. As
explained in a companion notice published elsewhere in this Federal
Register, Navajo Generating Station (NGS), is at this time already
required to meet an SO2 limit of 0.1 lb/MMbtu, which
requires a greater than 90% reduction in SO2 emissions
through the use of wet scrubbers. The wet scrubbers for NGS are new
scrubbers that came

on-line between 1997 and 1999 for the three units at the source.
    APS, in partnership with the Navajo Nation, several environmental
groups and Federal agencies, conducted a test program to determine if
the efficiency of the existing scrubbers at FCPP could be improved from
the recent historical level of 72% SO2 removal to 85%. The
test program, which was completed in spring of 2005, was successful and
the plant was able to achieve a plant-wide annual SO2
removal of 88%. The parties involved in the test program have agreed
that this rule should propose to require 88% efficiency for the FCPP.
    EPA believes that the SO2 controls proposed today for
FCPP are close to or the equivalent of a regional haze BART
determination for SO2. For example, the BART Guidelines
published by EPA in 2005 establish a presumption for the control of
SO2 from uncontrolled large utility boilers of either 95%
control or 0.15 lbs/MMBtu, but suggest that for electric generating
units with pre-existing post-combustion SO2 controls of at
least 50% removal efficiency, States consider cost effective scrubber
upgrades designed to improve the system's overall SO2
removal efficiency. 70 FR 39104, 39171 (July 6, 2005). The conclusion
that the SO2 controls proposed today are close to or the
equivalent of BART takes into consideration not only the BART
Guidelines but also the early reductions for Regional Haze that this
action will achieve through the modifications to the existing
SO2 scrubbers. As explained in today's companion notice for
NGS published elsewhere in this Federal Register, EPA previously
determined that the SO2 emission limits in the 1991 FIP for
NGS provide for a greater degree of reasonable progress toward the
Regional Haze national goal than would BART. See 56 FR 50172. As a
result, EPA does not consider it necessary or appropriate to develop a
regional haze plan to address the BART requirements under 40 CFR 51.308
for the Navajo Reservation for SO2.
    This proposal addresses only the necessity or appropriateness of
developing a regional haze plan to address the BART requirements for
SO2 for the Navajo Reservation. EPA will evaluate emissions
of NOX, PM, and other pollutants that contribute to
visibility impairment for their impact on regional haze and determine
in a future action whether it is necessary and appropriate to develop a
regional haze plan to address the BART requirements with respect to
these pollutants.

III. Four Corners Power Plant Facility Description

    The FCPP is a 2040 MW net coal-fired power plant located on the
Navajo Indian Reservation near Farmington, New Mexico. The FCPP
consists of two 170 MW net electric generating units, one 220 MW net
unit and two 740 MW net units, all of which became operational between
1963 and 1970. The 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 for particulate matter
control, lime spray towers for SO2 control, and burners for
limiting NOX formation. Units 1, 2 and 3 each have venturi
scrubbers for particulate matter and SO2 control, and
burners for limiting NOX formation. None of these unit's
burner designs are the latest technology for NOX control.

IV. Summary of FIP Provisions

A. Proposed FIP Standards

    1. FCPP's SO2 emissions are not allowed to exceed 12
percent of the SO2 produced in the burning of sulfur-bearing
coal (averaged over a daily rolling yearly average on a plant-wide
basis) and not to exceed 17,900 pounds of total SO2 per hour
averaged over any consecutive three-hour period, on a plant-wide basis.
    2. Particulate emissions are not to exceed 0.050 lbs/MMbtu of heat
input, as averaged from at least three sampling runs, each at a minimum
of 60 minutes in duration, each collecting a minimum sample of 30 dry
standard cubic feet.
    3. Opacity is limited to 20%, averaged over a six-minute period,
for Units 4 and 5. The opacity limit for Units 4 and 5 allows for one
six-minute period per hour of not more than 27 percent opacity,
excluding water vapor. 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 matter, and were later
redesigned to also control SO2. 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 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. EPA requests comment on this proposal,
including whether an opacity standard of 20% or 40% could be applied to
Units 1, 2, and 3. It should be noted that even if this regulation
adopts an opacity limit, continuous opacity monitors would not be
required since the stack is continuously wet from water vapor from the
scrubbers.
    4. Opacity is limited to 20 percent averaged over a six minute
period for dust from emissions associated with coal transfer and
storage and other dust-generating activities. APS is required to submit
a description of the dust control measures.
    5. FCPP's nitrogen oxide emissions are not allowed to exceed 0.85
lbs/MMbtu of input for Units 1 and 2, and 0.65 lbs/MMbtu 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 plant-
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.

B. Other Requirements

    1. All periods of excess emissions will be treated as violations of
the emission limitation. This rule does, however, provide an
affirmative defense to enforcement actions for penalties brought for
excess emissions that arise during certain malfunction episodes. As
explained in EPA's excess emissions policy,\2\ affirmative defenses
must be restricted to malfunctions that are sudden, unavoidable, and
unpredictable. In addition, all possible steps must have been taken to
minimize excess emissions. The rule accordingly requires an owner or
operator to meet several conditions to qualify for an affirmative
defense. An affirmative defense is not available if, during the period
of excess emissions, there was an exceedance of the relevant ambient
air quality standard that could be attributed to the emitting source.
---------------------------------------------------------------------------

    \2\ September 20, 1999, ``State Implementation Plans: Policy
Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown'' (the Excess Emissions Policy).
---------------------------------------------------------------------------

    2. 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.

C. Compliance Schedule

    The EPA proposes that the requirements contained in this proposal
become effective upon promulgation of these regulations, except where
specified otherwise.

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 November 6, 2006 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 Act

    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. See 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 (DC 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
104-4, 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 Regional 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 additional 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 imposes 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

    The FCPP FIP is not subject to Executive Order 13045 because it
implements previously promulgated health or safety-based Federal
standards. Executive Order 13045 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.

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
additional 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 13175: Consultation and Coordination With Indian
Tribal Governments

    Under Executive Order 13175, 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 13175
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 13175 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 13175 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 American Society of Testing and Materials (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.
    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.
    NOX--EPA Method 7E and Performance Specification 2 for
Continuous NOX Monitoring and Performance Specification 6
for Flow Monitoring.

List of Subjects in 40 CFR Part 49

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

    Dated: August 30, 2006.
Laura Yoshii,
Acting Regional Administrator, Region IX.
    Title 40, chapter I of the Code of Federal Regulations is proposed
to be amended as follows:

PART 49--[AMENDED]

    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'')
on the Navajo Nation 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 the effective date of this promulgation unless
otherwise indicated by compliance dates contained in specific
provisions.
    (c) Definitions. For the purposes of this section:
    (1) 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.

    (2) 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.
    (3) Daily average means the arithmetic average of the hourly values
measured in a 24-hour period.
    (4) Excess emissions means the emissions of air contaminants in
excess of an applicable emissions limitation or requirement.
    (5) 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. Heat
input shall be in accordance with 50 CFR part 75.
    (6) 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. This rule provides an affirmative
defense to actions for penalties brought for excess emissions that
arise during certain malfunction episodes. An affirmative defense is
not available if during the period of excess emissions, there was an
exceedance of the relevant ambient air quality standard that could be
attributed to the emitting source.
    (7) 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.
    (8) Oxides of nitrogen (NOX) means the sum of nitric
oxide (NO) and nitrogen dioxide (NO2) in the flue gas,
expressed as nitrogen dioxide.
    (9) Plant-wide basis means total stack emissions of any particular
pollutant from all coal burning equipment at the Plant.
    (10) Regional Administrator means the Regional Administrator of the
Environmental Protection Agency (EPA) Region 9 or his/her authorized
representative.
    (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) 24-hour period means the period of time between 12:01 a.m. and
12 midnight.
    (d) Emissions Standards and Control Measures.
    (1) Sulfur Dioxide. No owner or operator shall discharge or cause
the discharge of sulfur dioxide (SO2) into the atmosphere in
excess of
    (i) 12.0% of that which is produced by the Plant's coal burning
equipment, determined each day on a yearly plant-wide basis; and
    (ii) 17,900 pounds of total SO2 emissions per hour
averaged over any consecutive three (3) hour period, determined on a
plant-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 pounds per million
British thermal unit (lb/MMBtu) of heat input (higher heating value),
as averaged from at least three sampling runs, each at minimum 60
minutes in duration, each collecting a minimum sample of 30 dry
standard cubic feet.
    (3) Dust. Each owner or operator shall operate and maintain the
existing dust suppression methods for controlling dust from the coal
handling and storage facilities. Within ninety (90) days after
promulgation of this section, the owner or operator shall submit to the
Regional Administrator a description of the dust suppression methods
for controlling dust from the coal handling and storage facilities, fly
ash handling and storage, and road sweeping activities. Each owner or
operator shall not emit dust with an opacity greater than 20% from any
crusher, grinding mill, screening operation, belt conveyor, or truck
loading or unloading operation.
    (4) Opacity. No owner or operator shall discharge or cause the
discharge of emissions from the stacks of Units 4 and 5 into the
atmosphere exhibiting greater than 20% 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.
    (5) 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 plant-wide basis; for each hour when coal
burning equipment is not operating, this limitation shall be reduced.
If the unit which is not operating is Unit 1, 2, or 3, the limitation
shall be reduced by 1,542 lb per hour for each unit which is not
operating. If the unit which is not operating is Unit 4 or 5, the
limitation shall be reduced by 4,667 lb per hour for each unit which is
not operating.
    (e) Testing and Monitoring. 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 tested annually, or at such other time as
requested by the Regional 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
Regional Administrator. Compliance with the emissions limits set for
opacity shall be determined by using data from a Continuous Opacity
Monitoring System (COMS) except during saturated stack conditions
(condensed water vapor). If the baghouse is operating within its normal
operating parameters, the baghouse is not fully closed, and a high
opacity reading occurs, it will be presumed that the occurrence was
caused by saturated stack conditions and shall not be considered a
violation.
    (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 section,
the owner or operator shall install CEMS and COMS software which
complies with the requirements of this section. The owner or operator
of the Plant may petition the Regional 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
there under shall be submitted

to the Regional Administrator. The owner or operator shall provide the
Regional Administrator notice in accordance with 40 CFR 75.61.
    (2) Sulfur Dioxide. For the purpose of determining compliance with
this section, the sulfur dioxide inlet concentration (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 Regional Administrator. A daily fuel sample
shall be collected using the coal sampling tower conforming to the ASTM
specifications. The analyses shall be done on the daily sample using
ASTM methods or any other method receiving prior approval from the
Regional Administrator.
    (i) The inlet sulfur dioxide concentration shall be calculated
using the following formula:

Is = 2(%Sf)/GCV x 104 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 total pounds of SO2 generated by burning the
coal shall be calculated by multiplying the SO2 inlet
concentration by the daily total heat input determined by the 40 CFR
part 75 acid rain monitoring. This will determine the pounds of
SO2 produced per day. The SO2 emitted from the
stacks shall be determined by adding the daily SO2 emissions
from each stack as determined by the 40 CFR part 75 acid rain monitors.

Compliance with the emission limit shall be determined for each day by
adding that day's SO2 emissions and that day's
SO2 produced to the previous 364 days and then dividing the
365 days of emissions by the 365 days of SO2 produced.
Compliance is demonstrated if this fraction, converted to a percent, is
equal to or less than 12.0%. The data from the 40 CFR part 75 monitors
shall not be bias adjusted. Missing hours of data shall be calculated
by averaging the last prior valid hourly data with the next valid hour
after the data gap.
    (3) Particulate Matter. Particulate matter emissions shall be
determined by averaging the results of three test runs. Each test run
shall be at least sixty (60) minutes in duration and shall collect a
minimum volume of thirty (30) dry standard cubic feet. 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 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 Regional 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 Regional
Administrator) in advance of the new date of testing.
    (4) Oxides of nitrogen. The total daily plant-wide oxides of
nitrogen emissions in pounds of NO2 per day shall be
calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TP12SE06.021

Where:

TE = total plant-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 SO2, 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. For reporting purposes, when
CEMS data is not available because of malfunctions or other reasons,
the unavailable 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 plant-wide 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 Regional Administrator
no later than sixty (60) days after the effective date of this FIP. The
owner or operator shall implement this plan within 30 days of approval
by the Regional 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. If requested by the
Regional Administrator, this plan shall be revised and submitted to the
Regional Administrator for approval within sixty (60) days of the
request. The revised plan shall be implemented within sixty (60) days
of the Regional Administrator's approval.
    (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 within sixty (60) days
of the effective date of this FIP, or the Regional 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 section. The owner
or operator shall implement this requirement no later than one hundred
twenty (120) days after the effective date of this FIP if it failed to
submit the plan within sixty (60) days after the effective date of this
FIP; or no later than 60 days after the Regional Administrator's
disapproval of the plan.
    (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 Regional Administrator
for an extension of the sixty (60) day deadline. Such extension shall
be granted only if the owner or operator demonstrates to the
satisfaction of the Regional 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 Regional
Administrator reports of the monitoring data required by this section
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 Regional
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 Regional Administrator required by this section
shall be submitted, unless instructed otherwise, to the Director,
Navajo Environmental Protection Agency, P.O. Box 339, Window Rock,
Arizona 86515,<PHONE_NUMBER>,<PHONE_NUMBER> (facsimile), and 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,<PHONE_NUMBER>,<PHONE_NUMBER>
(facsimile). For each unit subject to the emissions limitation in this
section and upon completion of the installation of CEMS and COMS as
required in this section, the owner or operator shall comply with the
following requirements:
    (1) For each emissions limit in this section, comply with the
notification and recordkeeping requirements for CEMS compliance
monitoring in 40 CFR 60.7(c) and (d).
    (2) For each day, provide the 365-day percent SO2
emitted, the total SO2 emitted that day, and the total
SO2 produced that day. List the number of hours of
substitute data used for each of the 5 units during that day.
    (3) Furnish the Regional 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.
    (4) Excess Emissions Report. (i) For excess emissions (except in
the case of saturated stack conditions), the owner or operator shall
notify the Navajo Environmental Protection Agency Director and the U.S.
Environmental Protection Agency Regional Administrator by telephone or
in writing within one business day (``initial notification''). A
complete written report of the incident shall be submitted to the
Navajo Environmental Protection Agency Director and the U.S.
Environmental Protection Agency Regional Administrator within ten (10)
working days of the initial notification. This notification should be
sent to the Director, Navajo Environmental Protection Agency, by mail
to: P.O. Box 339, Window Rock, Arizona 86515, or by facsimile to: (928)
871-7996 (facsimile), and to the Regional Administrator, U.S.
Environmental Protection Agency, by mail to the attention of Mail Code:
AIR-5, at 75 Hawthorne Street, San Francisco, California 94105, by
facsimile to:<PHONE_NUMBER> (facsimile), or by e-mail to:
<EMAIL_ADDRESS>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.
    For this reporting requirement, excess opacity due to saturated
stack conditions is exempted.
    (ii) If the period of excess emissions extends beyond the submittal
of the written report, the owner or operator shall also notify the
Regional Administrator in writing of the exact time and date when the
excess emissions stopped. Compliance with the excess emissions
notification provisions of this section shall not excuse or otherwise
constitute a defense to any violations of this section or of any law or
regulation which such excess emissions or malfunction may cause.

    (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 Regional 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 startup 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 or of a process
to operate in a normal or usual manner;
    (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 taken in an expeditious fashion 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.

[FR Doc. E6-15097 Filed 9-11-06; 8:45 am]

BILLING CODE 6560-50-P