

[Federal Register: June 20, 2007 (Volume 72, Number 118)]
[Proposed Rules]               
[Page 33933-33937]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn07-36]                         

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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 
spruiell.stanley@epa.gov.

     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://

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 spruiell.stanley@epa.gov.

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]

BILLING CODE 6560-50-P
