[Federal Register Volume 72, Number 31 (Thursday, February 15, 2007)]
[Proposed Rules]
[Pages 7361-7365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2671]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2006-0568; FRL-8278-3]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Albuquerque/Bernalillo County; Prevention of Significant
Deterioration (PSD) and New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to approve revisions to the State
Implementation Plan (SIP) for the Albuquerque/Bernalillo County, New
Mexico, area that were submitted to EPA by the Governor of New Mexico
on May 24, 2006. The proposed revisions modify the Prevention of
Significant Deterioration and Nonattainment New Source Review (NNSR)
regulations in the SIP. They were submitted to make the area's PSD and
NNSR rules consistent with Federal NNSR and PSD revised regulations,
which were promulgated by EPA on December 31, 2002 (67 Federal Register
(FR) 80186) and reconsidered with minor changes on November 7, 2003 (68
FR 63021) (collectively, these Federal actions are called the ``2002
New Source Review
[[Page 7362]]
(NSR) Reform Rules''). The revisions include provisions for baseline
emissions calculations, an actual-to-projected-actual methodology for
calculating emissions changes, options for plantwide applicability
limits (PALs), and recordkeeping and reporting requirements. We are
proposing to approve these revisions pursuant to section 110, part C,
and part D of the Federal Clean Air Act (Act).
DATES: Comments must be received on or before March 19, 2007.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R06-OAR-2006-0568, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Stanley M. Spruiell at
[email protected].
Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R),
at fax number (214) 665-7263.
Mail: Mr. Stanley M. Spruiell, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Stanley M. Spruiell, Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID Number EPA-R06-OAR-
2006-0568. The EPA's policy is that all comments received 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 information claimed
to be Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or e-mail if you believe that it is
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which
means that EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment along with any disk or CD-ROM
submitted. 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. Electronic files should avoid the use of
special characters and any form of encryption and should be free of any
defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
the disclosure of which is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically at http://www.regulations.gov or in hard copy at the Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 FOIA
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays
except for legal holidays. Contact the person listed in the FOR FURTHER
INFORMATION CONTACT paragraph below to make an appointment. If
possible, please make the appointment at least two working days in
advance of your visit. A 15 cent per page fee will be charged for
making photocopies of documents. On the day of the visit, please check
in at the EPA Region 6 reception area on the seventh floor at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
Albuquerque Environmental Health Department, Air Pollution Control
Division, One Civic Plaza, Albuquerque, New Mexico 87103.
FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212;
fax number (214) 665-7263; e-mail address [email protected].
SUPPLEMENTARY INFORMATION:
Throughout this document, any reference to ``we,'' ``us,'' or
``our'' shall mean EPA.
Outline:
I. What Action Is EPA Proposing?
II. What Is the Background for This Action?
III. What Is EPA's Analysis of Albuquerque's NSR Rule Revisions?
IV. Does Approval of the NNSR and PSD Revised Rules Interfere With
Attainment, Reasonable Further Progress, or Any Other Applicable
Requirement of the Act?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing?
On May 24, 2006, the Governor of the State of New Mexico submitted
revisions to the SIP for Albuquerque/Bernalillo County. The submittal
consists of revisions to two regulations that are already part of the
Albuquerque/Bernalillo County SIP. The affected regulations are:
20.11.60 New Mexico Administrative Code (NMAC) (Permitting in
Nonattainment Areas) and 20.11.61 NMAC (Prevention of Significant
Deterioration). The revisions were made to update the Albuquerque/
Bernalillo County Air Quality Control Board (AQCB) NNSR and PSD
regulations to ensure that the regulations are consistent with changes
to the Federal NSR regulations published on December 31, 2002 (67 FR
80186) and November 7, 2003 (68 FR 63021). These EPA rulemakings are
collectively referred to as the ``2002 NSR Reform Rules.''
This SIP revision also includes other non-substantive changes to
AQCB's PSD and NNSR rules needed to update the regulatory citations,
make clarifying revisions to the regulatory text, correct typographical
errors, and ensure that the regulations are consistent with all current
Federal requirements for PSD and NNSR. These non-substantive changes do
not change the regulatory requirements. Please see the Technical
Support Document (TSD) for further information.
II. What Is the Background for This Action?
On December 31, 2002, EPA published final rule changes to 40 Code
of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air
Act's PSD and NNSR programs. See 67 FR 80186. On November 7, 2003, EPA
published a notice of final action on the reconsideration of the
December 31, 2002, final rule changes. See 68 FR 63021. In the November
7th final action, EPA added the definition of ``replacement unit,'' and
clarified issues regarding PALs. The purpose of today's
[[Page 7363]]
action is to propose approval of the State's SIP submittal for
Albuquerque/Bernalillo County that includes revisions to the NNSR and
PSD SIP rules.
The 2002 NSR Reform Rules are part of EPA's implementation of parts
C and D of Title I of the Act, 42 U.S.C. 7470-7515, addressing major
sources and major modifications. Part C of Title I of the Act, 42
U.S.C. 7470-7492, is the PSD program, which applies in areas that meet
the National Ambient Air Quality Standards (NAAQS)--``attainment
areas''--as well as in areas for which there is insufficient
information to determine whether the area meets the NAAQS--
``unclassifiable'' areas. Part D of Title I of the Act, 42 U.S.C. 7501-
7515, is the NNSR program, which applies in areas that are not in
attainment of one or more of the NAAQS--``nonattainment areas.'' There
also is the section 110 requirement for a minor NSR preconstruction
permit program SIP. EPA regulations implementing the NNSR and PSD
programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and
appendix S of part 51.
The Act's NSR programs are preconstruction review and permitting
programs applicable to new and modified stationary sources of air
pollutants regulated under the Act. These programs include a
combination of air quality planning and air pollution control
technology program requirements. Briefly, section 109 of the Act, 42
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public
health and secondary NAAQS to protect public welfare. Once EPA sets
those standards, each State must develop, adopt, and submit to EPA for
approval, a SIP that contains emissions limitations and other control
measures to attain and maintain the NAAQS. Each SIP is required to
contain a preconstruction review program for the construction and
modification of stationary sources of air pollution to assure that the
NAAQS are achieved and maintained; to protect areas of clean air; to
protect air quality related values (such as visibility) in national
parks and other areas; to assure that appropriate emissions controls
are applied; to maximize opportunities for economic development
consistent with the preservation of clean air resources; and to ensure
that any decision to increase air pollution is made only after full
public consideration of the consequences of the decision.
The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. In summary, these rules: (1) Provide a new method for
determining baseline actual emissions in the NNSR and PSD programs; (2)
adopt for the NNSR and PSD programs an actual-to-projected-actual
methodology for determining whether a major modification has occurred;
(3) allow major stationary sources to comply with PALs to avoid having
a significant emissions increase that triggers the requirements of the
NNSR and PSD programs; (4) provide a new applicability provision in the
NNSR and PSD programs for emissions units that are designated clean
units; and (5) exclude pollution control projects from the NNSR and PSD
program definitions of ``physical change or change in the method of
operation.'' For additional information on the 2002 NSR Reform Rules,
see 67 FR 80186 (December 31, 2002) and http://www.epa.gov/nsr.
After the 2002 NSR Reform Rules were finalized and effective (March
3, 2003), various petitioners challenged numerous aspects of the 2002
NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR
5276, August 7, 1980). On June 24, 2005, the D.C. Circuit Court of
Appeals issued a decision on the challenges to the 2002 NSR Reform
Rules. See New York v. United States, 413 F.3d 3 (D.C. Cir. 2005)
rehearing en banc denied (December 9, 2005). In summary, the Court
vacated portions of the Rules pertaining to clean units and pollution
control projects; remanded a portion of the Rules regarding
recordkeeping, e.g., 40 CFR 51.165(a)(6) and 40 CFR 51.166(r)(6); and
either upheld or did not comment on the other provisions included as
part of the 2002 NSR Reform Rules. The EPA has not yet responded to the
Court's remand regarding the recordkeeping provisions. Today's action
is consistent with the decision of the D.C. Circuit Court of Appeals
because Albuquerque's submittal does not include any portions of the
2002 NSR Reform Rules that were vacated as part of the June 2005
decision.
The 2002 NSR Reform Rules require that State agencies adopt and
submit revisions to their SIP permitting programs implementing the
minimum program elements of the 2002 NSR Reform Rules no later than
January 2, 2006. See 40 CFR 51.166(a)(6)(i) (requiring State agencies
to adopt and submit PSD SIP revisions within three years after new
amendments are published in the Federal Register). State agencies may
meet the requirements of 40 CFR Part 51 and the 2002 NSR Reform Rules
with regulations that are different than but equivalent to the Federal
regulations. If, however, a State decides not to implement any of the
new applicability provisions, that State must demonstrate that its
existing program is at least as stringent as the Federal program.
On May 24, 2006, the Governor of New Mexico submitted a SIP
revision for the purpose of revising AQCB's NNSR and PSD permitting
regulations. These changes were made primarily to adopt EPA's 2002 NSR
Reform Rules. As discussed in further detail below, EPA believes the
revisions contained in the submittal are approvable for inclusion into
the SIP for Albuquerque/Bernalillo County.
III. What Is EPA's Analysis of the Albuquerque NSR Rule Revisions?
The AQCB currently has an EPA-approved NSR program for new and
modified sources, including a minor NSR preconstruction permit program,
an NNSR preconstruction permit program, and a PSD preconstruction
permit program. Today, EPA is proposing to approve revisions to the
AQCB's existing NNSR and PSD regulations in the SIP. These proposed
revisions were submitted to EPA on May 24, 2006. Copies of the revised
rules, as well as the TSD, can be obtained from the Docket, as
discussed in the ``Docket'' section above. A discussion of the specific
AQCB rule changes that are proposed for inclusion in the SIP is
included in the TSD and summarized below.
The AQCB's permitting requirements for major sources in or
impacting upon non-attainment areas are set forth at 20.11.60 NMAC
(Permitting in Nonattainment Areas). The current AQCB NNSR program
applies to the construction of any new major stationary source or major
modification of air pollution in a nonattainment area, as required by
part D of Title I of the Act. To receive approval to construct, a
source that is subject to this regulation must show that it will not
cause a net increase in pollution or create a delay in meeting the
NAAQS, and that it will install and use control technology that
achieves the lowest achievable emission rate.
The AQCB's regulation 20.11.61 NMAC (Prevention of Significant
Deterioration) contains the preconstruction review program that
provides for the prevention of significant deterioration of ambient air
quality as required under part C of Title I of the Act. The program
applies to major stationary sources or modifications constructed or
installed in areas designated as attainment or unclassifiable with
respect to the NAAQS.
[[Page 7364]]
These revisions to 20.11.60 NMAC and 20.11.61 NMAC update the
existing provisions to be consistent with the current Federal NNSR and
PSD rules, including the effects of the 2002 NSR Reform Rules. These
revisions address baseline actual emissions, actual-to-projected-actual
applicability tests, and PALs. The revisions included in AQCB's NNSR
and PSD programs are substantively the same as the 2002 NSR Reform
Rules. As part of our review of AQCB's regulations, we performed a
line-by-line review of the proposed revisions and have determined that
they are consistent with the program requirements for the preparation,
adoption and submittal of implementation plans for NSR set forth at 40
CFR 51.165 and 51.166. This review is contained in the TSD for this
action. The AQCB rules that we are reviewing do not incorporate the
portions of the Federal rules that were vacated by the D.C. Circuit
Court of Appeals, such as the clean unit provisions and the pollution
control projects exclusion.
The revised AQCB rules include the recordkeeping provisions set
forth in the Federal rules at 40 CFR 51.165(a)(6) and 51.166(r)(6).
However, AQCB chose to exclude the phrase ``reasonable possibility.''
In the Federal rule, this phrase limits the recordkeeping provisions to
modifications at facilities that use the actual-to-future-actual
methodology to calculate emissions changes, where there is a
``reasonable possibility'' that the modifications will result in a
significant emissions increase. Therefore, by leaving out the phrase
``reasonable possibility'' from Subsection F of 20.11.60.12 NMAC and
Subsection E of 20.11.61.12 NMAC, the AQCB rules require all
modifications that use the actual-to-future-actual methodology to meet
the recordkeeping requirements. As noted earlier, EPA has not yet
responded to the D.C. Circuit Court of Appeals remand of the
recordkeeping provisions of EPA's 2002 NSR Reform Rules. As a result,
EPA's final decision with regard to the remand may require EPA to take
further action on this portion of AQCB's rules. At present, however,
AQCB's recordkeeping provisions are at least as stringent as the
Federal requirements, and are therefore approvable.
IV. Does Approval of the NNSR and PSD Revised Rules Interfere With
Attainment, Reasonable Further Progress, or Any Other Applicable
Requirement of the Act?
The Act provides in Section 110(l) that:
Each revision to an implementation plan submitted by a State
under this Act shall be adopted by such State after reasonable
notice and public hearing. The Administrator shall not approve a
revision of a plan if the revisions would interfere with any
applicable requirement concerning attainment and reasonable further
progress (as defined in section 171), or any other applicable
requirement of the Act.
Because, as discussed above and in the TSD, the revisions to the AQCB
NNSR and PSD programs are substantively the same as the 2002 NSR Reform
Rules, without including any vacated provisions, we conclude that these
rules do not interfere with attainment, reasonable further progress, or
any other applicable requirement of the Act. See 67 FR 80186 and 68 FR
63021 for EPA's detailed explanation of the legal basis for the 2002
NSR Reform Rules.
V. What Action Is EPA Taking Today?
For the reasons discussed above, EPA is proposing to approve the
changes made in the two rules, 20.11.60 NMAC (Permitting in
Nonattainment Areas) and 20.11.61 NMAC (Prevention of Significant
Deterioration) as submitted May 24, 2006, as revisions to the
Albuquerque/Bernalillo County SIP.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under State law and does not impose any
additional enforceable duty beyond that required by State law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Public Law 104-4).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on: One or more Indian
tribes, the relationship between the Federal Government and Indian
tribes, or the distribution of power and responsibilities between the
Federal Government and Indian tribes, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000). This action also does not have
Federalism implications because it does not have substantial direct
effects on the States, the relationship between the national government
and the States, or the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999). This action merely proposes to approve
a state rule implementing a Federal standard, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. The EPA interprets Executive Order
13045, ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), as applying only to those
regulatory actions that concern health or safety risks such that the
analysis required under section 5-501 of the Executive Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it would approve a state
program. Executive Order 12898 (59 FR 7629 (February 16, 1994))
establishes federal executive policy on environmental justice. Because
this rule merely proposes to approve a state rule implementing a
Federal standard, EPA lacks the discretionary authority to modify
today's regulatory decision on the basis of environmental justice
considerations.
In reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Act. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Act. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
[[Page 7365]]
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 5, 2007.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E7-2671 Filed 2-14-07; 8:45 am]
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