00-1838. Notice of Correction and Clarification of Statements Contained in Notice of Proposed Source Specific Federal Implementation Plan for Four Corners Power Plant; Navajo Nation and in Notice of Proposed Source Specific Federal Implementation ...

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Correction and clarification.

SUMMARY:

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

FOR FURTHER INFORMATION CONTACT:

David R. LaRoche, Office of Air and Radiation (OAR 6101-A), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, N.W., Washington, DC 20460; [phone].

SUPPLEMENTARY INFORMATION:

On September 8, 1999, EPA published two notices in the Federal Register requesting comment on proposed source-specific federal implementation plans (FIPs) under the Clean Air Act (CAA or the Act) for the Four Corners Power Plant (FCPP) and the Navajo Generating Station (NGS). See 64 FR 48731 (September 8, 1999); 64 FR 48725 (September 8, 1999). As detailed more fully in those notices, EPA intends the proposed FIPs, if adopted, to federalize provisions from the New Mexico and Arizona State Implementation Plans with which FCPP and NGS, respectively, had previously been complying. By letter dated November 8, 1999, Arizona Public Service Company (APS) submitted comments on the proposed FIP for FCPP and, among other things, raised questions about certain statements contained in the proposed FIP relating to the Navajo Nation's authority to regulate emissions from FCPP under the CAA. Similar statements relating to the Navajo Nation's CAA authority to regulate emissions from NGS are contained in the proposed FIP for that facility. EPA is hereby correcting and clarifying these statements. EPA had intended to correct and clarify these statements in the preambles to the final FIPs, which have not yet been promulgated. However, EPA believes that it is appropriate to correct and clarify these statements at this time because of confusion they may have caused in pending litigation involving EPA's Tribal Authority Rule (TAR), 63 FR 7254 (Feb. 12, 1998), under the Clean Air Act.

EPA stated in the preamble to the proposed FIP for FCPP that “[u]pon review of the circumstances surrounding the location and operation of FCPP on the Navajo Indian Reservation, EPA concluded that jurisdiction under the Act over this facility lies with EPA and the Navajo Nation.” 64 FR at 48732. Similarly, in the preamble to the proposed FIP for NGS, EPA stated that “[u]pon review of the circumstances surrounding the location and operation of NGS on the Navajo Indian Reservation, EPA concluded that jurisdiction under the Act over this facility lies with EPA and the Navajo Nation.” 64 FR at 48726. These and several other statements in the preambles to the proposed FIPs mistakenly suggested that EPA had determined the question of whether the Navajo Nation may regulate FCPP and NGS under the CAA. However, as EPA will reiterate in the preambles to the final FIPs for both facilities, the proposed FIPs were based on federal authority only. In order to exercise such federal authority over FCPP and NGS, EPA did not need to, nor did it, decide whether the Navajo Nation may regulate those facilities under the CAA.

EPA is aware of covenants, contained in leases between FCPP and the Navajo Nation and between NGS and the Navajo Nation, relating to the Nation's authority to regulate these facilities. APS and NGS contend that these covenants prevent the Navajo Nation from regulating either of the facilities under the CAA. While in the preamble to the final TAR EPA expressed its view that Congress has delegated authority to eligible tribes to implement CAA programs over all air resources within the exterior boundaries of their reservations, EPA also noted that the Agency: will consider on a case-by-case basis whether special circumstances exist that would prevent a tribe from implementing a CAA program over its reservation. * * * If EPA determines that there are special circumstances that would preclude the Agency from approving a tribal program over a reservation area, the Regional Administrator would limit the tribal approval accordingly under [the TAR]. 63 FR at 7256.

In issuing the proposed FIPs, EPA did not determine whether the Navajo Nation may regulate FCPP or NGS in light of the covenants. EPA is not required to, and does not intend to, decide that issue in the context of taking final action on the proposed FIPs. Moreover, to date, the Navajo Nation has not applied to be treated in the same manner as a state (TAS) for purposes of regulating FCPP or NGS under the CAA. If the Navajo Nation applies to run a CAA regulatory program covering FCPP or NGS, EPA would evaluate at that time the effect, if any, of the covenants on the Nation's authority to regulate those facilities under the CAA. Before any such determinations would be made, FCPP, NGS and the public would have the opportunity, both at the time of the TAS eligibility application, as well as at the time the Navajo Nation applies for CAA program approval, to express their views to EPA.

Dated: January 20, 2000.

Carol M. Browner,

Administrator.