[Federal Register Volume 72, Number 118 (Wednesday, June 20, 2007)]
[Proposed Rules]
[Pages 33933-33937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11942]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2005-NM-0006; FRL-8328-8]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Prevention of Significant Deterioration 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 New Mexico
State Implementation Plan (SIP) that were submitted to EPA on April 11,
2002, and December 29, 2005. The proposed revisions modify New Mexico's
Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NNSR) regulations in the SIP to address changes to the
Federal PSD and NNSR regulations, which were promulgated by EPA on
December 31, 2002 and reconsidered with minor changes on November 7,
2003 (collectively, these two Federal actions are called the ``2002 New
Source Review (NSR) Reform Rules''). The proposed 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. EPA is proposing to approve these revisions pursuant to
section 110, parts C and D of the Federal Clean Air Act (Act).
DATES: Comments must be received on or before July 20, 2007.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R06-OAR-2005-NM-0006 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.
[[Page 33934]]
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-),
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-
2005-NM-0006. 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 Freedom
of Information Act (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 during
official business hours by appointment at the New Mexico Environment
Department, Air Quality Bureau, 1190 St. Francis Drive, Santa Fe, New
Mexico 87502.
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 New Mexico's NSR Rule Revisions?
IV. Does Approval of New Mexico NSR Rule Revisions 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 April 11, 2002, and December 29, 2005, New Mexico submitted
revisions to the New Mexico SIP. The submittal consists of revisions to
two regulations that are already part of the New Mexico SIP. The
affected regulations are 20.2.74 New Mexico Administrative Code (NMAC)
(Permits--Prevention of Significant Deterioration) and 20.2.79 NMAC
(Permits--Nonattainment Areas). The revisions will update New Mexico's
PSD and NNSR regulations to make them 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
New Mexico's PSD and NNSR rules needed to update the regulatory
citations, make clarifying revisions to the regulatory text, and
correct typographical errors. These non-substantive changes do not
change the regulatory requirements. Please see the Technical Support
Document (TSD) for further information.
The EPA is also proposing to approve portions of the SIP submittal
dated April 11, 2002. This action only approves the following
provisions of the April 11, 2002, SIP submittal:
The removal of the definition of ``complete'' currently in
Paragraph O of 20.2.74.7 NMAC; and
Revisions to 20.2.74.400 NMAC and 20.2.79 NMAC which
relate to the requirements for public notice and public participation
for PSD and NNSR permits.
The EPA is only addressing two provisions of the April 11, 2002,
SIP submittal in this action because these provisions are the only
provisions in the submittal that address PSD and NNSR. The EPA will
take appropriate action on the remaining provisions of the April 11,
2002, submittal in a separate action.
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 action is to
propose approval of New Mexico's SIP submittal, which 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
[[Page 33935]]
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.'' 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 that apply 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. The 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 became 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). 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 New Mexico's
submittal does not include any portions of the 2002 NSR Reform Rules
that were vacated.
The 2002 NSR Reform Rules require that no later than January 2,
2006, State agencies adopt and submit revisions to their SIP permitting
programs to implement the minimum program elements of the 2002 NSR
Reform Rules. 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 different but equivalent 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. As discussed in further detail below, EPA believes
the revisions contained in this submittal are approvable for inclusion
into the New Mexico SIP.
III. What Is EPA's Analysis of New Mexico's NSR Rule Revisions?
New Mexico 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 New
Mexico's existing NNSR and PSD regulations in the SIP. These proposed
revisions were submitted to EPA on December 29, 2005. 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 New Mexico rule changes that are proposed for inclusion in the
SIP is included in the TSD and summarized below.
New Mexico's regulation 20.2.74 NMAC (Permits--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.
New Mexico's permitting requirements for major sources in or
impacting upon non-attainment areas are set forth at 20.2.79 NMAC
(Permitting--Nonattainment Areas). The current New Mexico 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.
These revisions to 20.2.74 NMAC and 20.2.79 NMAC update the
existing provisions to be consistent with the Federal 2002 NSR Reform
Rules. These revisions address baseline actual emissions, actual-to-
projected-actual applicability tests, and PALs. The revisions included
in New Mexico's NNSR and PSD programs are substantively the same as the
2002 NSR Reform Rules. As part of EPA's review of New Mexico's
regulations, EPA performed a line-by-line review of the proposed
revisions and determined that the proposed revisions 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
New Mexico rules that EPA reviewed 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.
[[Page 33936]]
The revised New Mexico rules include the recordkeeping provisions
set forth in the Federal rules at 40 CFR 51.165(a)(6) and 51.166(r)(6).
However, New Mexico 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 E of 20.2.74.300
NMAC and Subsection E of 20.2.79.199 NMAC, the NMED 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 NMED's rules. At present, however,
NMED's recordkeeping provisions are at least as stringent as the
Federal requirements, and are therefore approvable.
In the April 11, 2002, submittal, New Mexico revised the
definitions by removing the definition of ``complete'' from Paragraph O
of 20.2.74.7 NMAC. The current SIP contained this definition of
``complete'' to meet the requirements of 40 CFR 51.166(b)(22). Although
the definition of ``complete'' is removed from 20.2.74.7 NMAC, other
provisions in 20.2.74 NMAC address the criteria that a permit
application must address in order to be administratively complete.
Specifically, 20.2.74.301 NMAC and 20.2.74.400 NMAC include each of the
elements that an application for a PSD permit must contain in order to
be administratively complete. These provisions include and meet the
requirements of 40 CFR 51.166(n). Thus the New Mexico rules contain
provisions that ensure that PSD permit applications are
administratively complete as required by the Federal rules.
The April 11, 2002, submittal also includes revisions to
20.2.74.400 NMAC and 20.2.79.118 NMAC, which include the schedules and
procedures to determine completeness of PSD and NNSR permit
applications and the requirements for public participation and notice.
The provisions were revised to provide that the New Mexico Environment
Department (NMED) will review a permit application and determine
whether it is administratively complete within 30 days after receipt of
the application. If the application is administratively complete, the
NMED will notify the applicant of this finding by certified mail. If
the application is administratively incomplete, the NMED will inform
the applicant of such finding by certified mail and state the
additional information or points of clarifications that are necessary
to deem the application administratively complete. When the NMED
receives additional information or clarification, it will promptly
review such information and determine whether the application is
administratively complete. The procedures for determining
administrative completeness and for public participation meet the
requirements of 40 CFR 51.161 and 40 CFR 51.166(q) which specifies the
public participation requirements for PSD permits.
The April 11, 2002, submittal also revised 20.2.74.400 NMAC to
include a cross-reference to 20.2.72 NMAC. Specifically, 20.2.74.400
NMAC provides that in order for a PSD permit application to be
administratively complete, it must meet 20.2.74.301 NMAC and 20.2.72
NMAC. 20.2.74.301 NMAC includes the source information specified in 40
CFR 51.166(n) and is not substantively changed in this action. Under
20.2.72 NMAC, requirements of a complete application are identified in
Paragraph A of 20.2.72.203 NMAC. The cross-reference to Paragraph A of
20.2.72.203 NMAC contains the elements for a complete application which
has non-substantive changes to the current SIP. It also contains
additional criteria that are in addition to the completeness elements
that a permit application must contain in order to be administratively
complete. Accordingly, New Mexico retains the minimum requirements for
determining whether an application is complete that meets the Federal
requirements. The TSD contains a detailed discussion of these
completeness provisions.
IV. Does Approval of New Mexico's Rule Revisions 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
New Mexico 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, 20.2.74 NMAC (Permits--Prevention of
Significant Deterioration) and 20.2.79 NMAC (Permits--Nonattainment
Areas) as revised in the following SIP submittals:
The portion of the SIP revisions submitted April 11, 2002,
which revise 20.2.74 NMAC and 20.2.79 NMAC; and
The NSR Reform provisions submitted December 29, 2005.
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 (Pub. L. 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
[[Page 33937]]
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,
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: June 11, 2007.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E7-11942 Filed 6-19-07; 8:45 am]
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