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Notice

Announcement of a Supplement to the Delegation of the Title V Permitting Program, Consistent With 40 CFR Part 71, to the Navajo Nation Environmental Protection Agency and the Suspension of Part 71 Fee Collection by USEPA for the Four Corners Steam Electric Station and the Navajo Generating Station

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AGENCY:

Environmental Protection Agency.

ACTION:

Informational notice.

SUMMARY:

The purpose of this notice is to announce that on March 21, 2006, the United States Environmental Protection Agency (USEPA) granted the Navajo Nation Environmental Protection Agency's (NNEPA) request to supplement its full delegation of authority to administer the Clean Air Start Printed Page 16774Act's (the Act) Federal Title V operating permits program to include the Four Corners Steam Electric Station and the Navajo Generating Station (the Power Plants). Under this supplemental delegation, NNEPA will issue and implement Title V operating permits pursuant to 40 CFR part 71 for the Power Plants, which are located within the formal boundaries of the Navajo Nation reservation, and will otherwise administer the program for these sources. The terms and conditions of the supplemental delegation are specified in a Supplemental Delegation of Authority Agreement (Agreement) between the USEPA Region IX and NNEPA, signed and dated on March 21, 2006. Region IX is also simultaneously suspending its collection of part 71 fees, pursuant to 40 CFR 71.9(c)(2)(ii), for the Power Plants.

DATES:

The effective date for the Agreement between USEPA and NNEPA, and USEPA's suspension of its part 71 fee collection for the Power Plants is March 21, 2006.

ADDRESSES:

Copies of the letter requesting supplemental delegation of authority to administer the Federal operating permits program for the Power Plants and the Agreement between USEPA and NNEPA are available for public inspection at USEPA's Region IX Office, 75 Hawthorne Street, San Francisco, CA 94105 and at the Navajo Nation Environmental Protection Agency Air Quality Control Program Office, Rt. 12 North/Bldg #F004-051, Fort Defiance, AZ 86504. Effective March 21, 2006, all notifications, requests, applications, reports and other correspondence required under 40 CFR part 71 for the Power Plants shall be submitted to NNEPA's Air Quality Control Program Office at the following address: Navajo Nation Air Quality Control Program Office, P.O. Box 529 Fort Defiance, AZ 86504, Attn: Charlene Nelson. Sources will also remain obligated to submit copies of such documents to USEPA as set forth in the terms and conditions of their part 71 permits and consistent with Section VII(2) of the Agreement.

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FOR FURTHER INFORMATION CONTACT:

Emmanuelle Rapicavoli, Permits Office (AIR-3), 75 Hawthorne Street, San Francisco, CA 94110, Telephone: 415-972-3969, e-mail: rapicavoli.emmanuelle@epa.gov.

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SUPPLEMENTARY INFORMATION:

The purpose of this notice is to announce that on March 21, 2006, USEPA granted NNEPA's request to supplement its existing full delegation of authority to administer the part 71 Federal operating permits program to include the Power Plants.

The Act and its implementing regulations under 40 CFR part 71 authorize USEPA to delegate authority to administer the part 71 program to any eligible Tribe that submits a demonstration of adequate regulatory procedures and authority for administration of the part 71 operating permits program.

In order to be considered an “eligible tribe,” the NNEPA submitted, in August 2005, an application for a determination, under the provisions of the Tribal Authority Rule (TAR), 40 CFR part 49, that it is eligible to be treated in the same manner as a state for the purpose of receiving delegation of authority to administer the Federal part 71 operating permit program for the Power Plants. Region IX reviewed NNEPA's application and determined that it met the four criteria for eligibility, identified in 40 CFR 49.6, for the Power Plants, and was thus eligible for entering into a supplemental delegation agreement with USEPA Region IX to administer the part 71 program for the Power Plants. USEPA Region IX's eligibility determination was signed on March 21, 2006.

On October 15, 2004, USEPA Region IX and the NNEPA entered into a delegation of authority agreement (October 2004 Delegation Agreement) to allow NNEPA to administer the Federal part 71 operating permits program on behalf of USEPA for all part 71 sources except for the Power Plants within a Delegated Program Area specified in that agreement. The October 2004 Delegation Agreement excluded the Power Plants because the Navajo Nation and the participants of the Power Plants disagree as to the Nation's jurisdiction to regulate the Power Plants under a delegated Part 71 Program based on the existence of certain provisions contained in leases and grants of rights-of-way (the “Covenants” and “Grants”) as between the Navajo Nation and the two facilities.

In light of this disagreement, on May 18, 2005, NNEPA entered into a voluntary compliance agreement (VCA) with the participants of the Power Plants, which provides that the parties will not assert or challenge any effect of the Covenants and Grants on the authority of NNEPA to administer a delegated part 71 program on behalf of USEPA with respect to the Plants or on the applicability to the Plants of the requirements of the Navajo Nation laws that have been expressly incorporated into a part 71 permit administered by the Navajo Nation EPA, without prejudice to their rights to assert or challenge the Covenants or Grants after expiration or termination of the VCA. Therefore, for so long as the VCA remains in effect, the VCA resolves the dispute between the Navajo Nation and the Power Plants as to impact of the Covenants or Grants on NNEPA's ability to regulate the Power Plants pursuant to the delegation of the administration of the part 71 Program.

In August 2005, NNEPA submitted a request to the USEPA Region IX, pursuant to 40 CFR 71.10, to supplement the October 2004 Delegation Agreement by delegating authority to NNEPA to administer the Part 71 Program with respect to the Power Plants. As part of its request, NNEPA submitted a legal opinion from its attorney general stating that the Navajo Nation Air Pollution Prevention and Control Act, the Navajo Nation Air Quality Control Program Operating Permit Regulations and the VCA provide it adequate authority to carry out all aspects of the delegated program for the Power Plants. NNEPA also provided all necessary documentation to demonstrate that it has adequate authority and adequate resources to administer the part 71 Federal permitting program for the Power Plants.

Pursuant to 40 CFR 71.10(b), USEPA hereby notifies the public that effective March 21, 2006, it has granted NNEPA's request and is fully delegating the authority to administer the federal operating permits program for the Power Plants as set forth under 40 CFR part 71 and in the Agreement. The terms and conditions for the supplemental delegation are specified in the Agreement between USEPA Region IX and NNEPA signed and dated on March 21, 2006.

If, at any time, USEPA determines that NNEPA is not adequately administering or cannot adequately administer the requirements of part 71 or fulfill the terms of the Agreement, this supplemental delegation may be revoked, in whole or in part, pursuant to 40 CFR 71.10(c), after appropriate consultation with NNEPA. The Agreement also provides that the supplemental delegation will automatically terminate with respect to either Power Plant for which the VCA has terminated or expired. USEPA will notify the public through a Federal Register notice of a partial or full termination of this Agreement.

Under the supplemental delegation, USEPA retains its authority to (1) object to the issuance of any part 71 permit for the Power Plants, (2) act upon petitions submitted by the public regarding the Power Plants, and (3) collect fees from the owners or operators of the Power Plants if it is demonstrated that NNEPA Start Printed Page 16775is not adequately administering the part 71 program with respect to the Power Plants, in accordance with the Agreement, 40 CFR part 71, and/or the Act. Because USEPA is retaining its authority to act upon petitions submitted pursuant to 40 CFR 71.10(h) and 71.11(n), any such petitions must be submitted to USEPA Region IX following the procedures set forth in those regulations.

USEPA also notifies the public, pursuant to 40 CFR 71.9(c)(2)(ii), that effective March 21, 2006, it has suspended collection of its part 71 permit fees for the Power Plants. In delegating the administration of the part 71 program, USEPA has determined that NNEPA can collect fees under tribal law sufficient to fund the delegated part 71 program for the Power Plants and carry out the duties specified in the Agreement.

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Dated: March 21, 2006.

Wayne Nastri,

Regional Administrator, Region 9.

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[FR Doc. E6-4845 Filed 4-3-06; 8:45 am]

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