
[Federal Register Volume 77, Number 61 (Thursday, March 29, 2012)]
[Rules and Regulations]
[Pages 18923-18929]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7561]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-NM-0006; FRL-9654-2]


Approval and Promulgation of Implementation Plans; New Mexico; 
Construction Permit Fees

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking a direct final action to approve revisions which 
repeal and replace existing rules, and revisions to the applicable 
State Implementation Plan (SIP) for New Mexico submitted by the State 
of New Mexico on April 11, 2002, and April 25, 2005, which relate to 
construction permit fee requirement regulations. The repeal and replace 
and SIP revisions

[[Page 18924]]

included in this action would address section 110(a)(2) Clean Air Act 
(the Act or CAA) requirements related to fees for reviewing and acting 
on specific air quality construction permit applications received by 
the New Mexico Environment Department (NMED or Department) and for 
implementing and enforcing the terms and conditions of the construction 
permit, excluding any court costs or other costs associated with an 
enforcement action. EPA has determined that these SIP revisions comply 
with the Clean Air Act and EPA regulations and are consistent with EPA 
policies. This action is being taken under section 110 of the Act.

DATES: This direct final rule is effective on May 29, 2012 without 
further notice, unless EPA receives relevant adverse comment by April 
30, 2012. If EPA receives such comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2005-NM-0006, by one of the following methods:
    (1) www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    (2) Email: Ms. Ashley Mohr at mohr.ashley@epa.gov.
    (3) Fax: Ms. Ashley Mohr, Air Permits Section (6PD-R), at fax 
number 214-665-6762.
    (4) Mail: Ms. Ashley Mohr, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
    (5) Hand or Courier Delivery: Ms. Ashley Mohr, 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 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. 
Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2005-NM-0006. 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 email, 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 email 
comment directly to EPA without going through http://www.regulations.gov, your email 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. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    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 in 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 related to this SIP revision, and which is part 
of the EPA docket, is also available for public inspection at the State 
Air Agency listed below during official business hours by appointment:
    New Mexico Environment Department, Air Quality Bureau, 1190 St. 
Francis Drive, Santa Fe, New Mexico.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning 
today's direct final action, please contact Ms. Ashley Mohr (6PD-R), 
Air Permits Section, Environmental Protection Agency, Region 6, 1445 
Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone 
(214) 665-7289; fax number (214) 665-6762; email address 
mohr.ashley@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document the following terms 
have the meanings described below:
     ``We'', ``us'' and ``our'' refer to EPA.
     ``Act'' and ``CAA'' mean the Clean Air Act.
     ``40 CFR'' means Title 40 of the Code of Federal 
Regulations--Protection of the Environment.
     ``SIP'' means the State Implementation Plan established 
under section 110 of the Act.
     ``NSR'' means new source review.
     ``TSD'' means the Technical Support Document for this 
action.
     ``NAAQS'' means any national ambient air quality standard 
established under 40 CFR part 50.

Table of Contents

I. What action is EPA taking?
II. What did New Mexico submit?
    A. April 11, 2002 Repeal and Replace SIP Revision Submittal
    B. April 25, 2005 SIP Revision Submittal
III. EPA's Evaluation
    A. What are the requirements for EPA's review of a fees SIP 
submittal?
    B. Do the submitted repeal and replace revisions and subsequent 
SIP revisions meet the CAA requirements?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    We are taking direct final action to approve revisions to the 
applicable State Implementation Plan (SIP) for New Mexico submitted by 
the State of New Mexico on April 11, 2002, and April 25, 2005, which 
relate to construction permit fee requirement regulations. The April 
11, 2002, SIP submittal repealed the existing construction permit fee 
regulations and adopted replacement construction permit fees (hereafter 
referred to as ``repeal and replace''), codified in 20.2.75 of the New 
Mexico Administrative Code (NMAC). The April 25, 2005, SIP submittal 
amended four sections of the repeal and replace: 20.2.75.5 NMAC, 
20.2.75.7 NMAC, 20.2.75.10 NMAC, and 20.2.75.11 NMAC.
    We provide the reasoning comprising our evaluation in general terms 
in this rulemaking but provide a more detailed

[[Page 18925]]

evaluation and analysis in the Technical Support Document (TSD) that 
has been prepared for this rulemaking. The repeal and replace submitted 
on April 11, 2002, has been determined to be significantly different 
from the existing version of 20.2.75 NMAC, Construction Permit Fees, 
which was approved into the New Mexico SIP by EPA on September 26, 1997 
(62 FR 50518). Therefore, a direct comparison to the approved New 
Mexico SIP is impractical, and the technical review of the repeal and 
replace will be evaluated for approval in this action and used as the 
baseline SIP for evaluation of the April 25, 2005, revisions.
    Our technical analysis of the April 11, 2002, repeal and replace 
and the April 25, 2005, SIP rule revisions has found that the repeal 
and replace as a baseline rule, and the subsequent revisions to this 
rule are consistent with applicable provisions of section 110(a)(2) of 
the CAA. Therefore, EPA is taking direct final action to approve the 
fees SIP rules submitted on April 11, 2002, and April 25, 2005.
    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no relevant adverse 
comments. As explained in our technical support document (TSD), we are 
finding this action noncontroversial because the construction permit 
fees program is an established permit fees program that New Mexico 
developed with input from members of the regulated community and public 
interest groups via a public participation process that was initiated 
simultaneous to initial rule review and development. However, in the 
proposed rules section of this Federal Register publication, we are 
publishing a separate document that will serve as the proposal to 
approve the SIP revision if relevant adverse comments are received. 
This rule will be effective on May 29, 2012 without further notice 
unless we receive relevant adverse comment by April 30, 2012. If we 
receive relevant adverse comments, we will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect. We will address all public comments in a subsequent final 
rule based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
now. Please note that if we receive adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, we may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

II. What did New Mexico submit?

A. April 11, 2002 Repeal and Replace SIP Revision Submittal

    The Governor of New Mexico submitted on April 11, 2002, a repeal 
and replacement of the existing version of 20.2.75 NMAC, Construction 
Permit Fees, which was approved into the New Mexico SIP by EPA on 
September 26, 1997. This submittal includes the following changes:
     Repeal and replace of the following sections: 20.2.75.1 
NMAC, Issuing Agency; 20.2.75.2 NMAC, Scope; 20.2.75.3 NMAC, Statutory 
Authority; 20.2.75.4 NMAC, Duration; 20.2.75.5 NMAC, Effective Date; 
20.2.75.6 NMAC, Objective; 20.2.75.7 NMAC, Definitions; 20.2.75.8 NMAC, 
Amendment and Supersession of Prior Regulations; 20.2.75.9 NMAC, 
Documents; 20.2.75.10 NMAC, Filing Fee; 20.2.75.11 NMAC, Permit Fee; 
20.2.75.12 NMAC, Payment of Fees; and 20.2.75.13 NMAC, Periodic Review.

B. April 25, 2005 SIP Revision Submittal

    The Governor of New Mexico submitted on April 25, 2005, a revision 
to 20.2.75 NMAC, Construction Permit Fees. This submittal includes the 
following changes:
     Revisions to the following sections: 20.2.75.5 NMAC, 
Effective Date; 20.2.75.7 NMAC, Definitions; 20.2.75.10 NMAC, Filing 
Fee; and 20.2.75.11 NMAC, Permit Fee.
    Table 1 summarizes the changes that are in the repeal and replace 
submitted April 11, 2002, and the additional SIP revisions submitted 
April 25, 2005. A summary of EPA's evaluation of each section and the 
basis for this action is discussed in section III of this preamble. The 
Technical Support Document (TSD) includes a detailed evaluation of the 
referenced SIP submittals.

                     Table 1--Summary of Each SIP Submittal That Is Affected by This Action
----------------------------------------------------------------------------------------------------------------
                                                         Submittal
             Section                      Title            dates       Description of change     Final  action
----------------------------------------------------------------------------------------------------------------
                                     20.2.75 NMAC--Construction Permit Fees
----------------------------------------------------------------------------------------------------------------
                                                 Issuing Agency
----------------------------------------------------------------------------------------------------------------
20.2.75.1 NMAC...................  Issuing Agency.....    4/11/2002  Repeal and replace:       Approval.
                                                                      Information about the
                                                                      issuing agency.
----------------------------------------------------------------------------------------------------------------
                                                      Scope
----------------------------------------------------------------------------------------------------------------
20.2.75.2 NMAC...................  Scope..............    4/11/2002  Repeal and replace:       Approval.
                                                                      Scope of rule
                                                                      applicability and
                                                                      annual fee payment
                                                                      requirements \1\.
----------------------------------------------------------------------------------------------------------------
                                               Statutory Authority
----------------------------------------------------------------------------------------------------------------
20.2.75.3 NMAC...................  Statutory Authority    4/11/2002  Repeal and replace: Fees  Approval.
                                                                      provisions adopted
                                                                      pursuant to state
                                                                      statutory authority.
----------------------------------------------------------------------------------------------------------------
                                                    Duration
----------------------------------------------------------------------------------------------------------------
20.2.75.4 NMAC...................  Duration...........    4/11/2002  Repeal and replace:       Approval.
                                                                      Rules to be of
                                                                      permanent duration.
----------------------------------------------------------------------------------------------------------------
                                                 Effective Date
----------------------------------------------------------------------------------------------------------------
20.2.75.5 NMAC...................  Effective Date.....    4/11/2002  Repeal and replace:       Approval.
                                                                      Rules to be effective
                                                                      March 2, 2001.
----------------------------------------------------------------------------------------------------------------

[[Page 18926]]

 
                                   ...................    4/25/2005  Section revised to        Approval.
                                                                      include the effective
                                                                      date as March 2, 2001
                                                                      except where a later
                                                                      date is cited at the
                                                                      end of a specific
                                                                      section.
----------------------------------------------------------------------------------------------------------------
                                                    Objective
----------------------------------------------------------------------------------------------------------------
20.2.75.6 NMAC...................  Objective..........    4/11/2002  Repeal and replace:       Approval.
                                                                      Establishes objective
                                                                      for fees rules.
----------------------------------------------------------------------------------------------------------------
                                                   Definitions
----------------------------------------------------------------------------------------------------------------
20.2.75.7 NMAC...................  Definitions........    4/11/2002  Repeal and Replace:       Approval.
                                                                      Provides definitions
                                                                      for the following as
                                                                      used in the fees rules:
                                                                      ``Air toxics review'',
                                                                      \2\ ``Applicable
                                                                      regulations''. \3\
                                                                      ``Fee unit'',\4\
                                                                      ``Fugitive Emissions
                                                                      Fee Unit''.
                                                                      ``Revision'',\5\
                                                                      ``Small business'',\6\
                                                                      ``Technical review of
                                                                      an existing permit''.
----------------------------------------------------------------------------------------------------------------
                                   ...................    4/25/2005  Section revised to        Approval.
                                                                      include the correction
                                                                      of a typographical
                                                                      error in the definition
                                                                      of ``Fee unit''.
----------------------------------------------------------------------------------------------------------------
                                 Amendment and Supersession of Prior Regulations
----------------------------------------------------------------------------------------------------------------
20.2.75.8 NMAC...................  Amendment and          4/11/2002  Repeal and replace:       Approval.
                                    Supersession of                   Amendment and
                                    Prior Regulations.                supersession of AQCR
                                                                      700 with Part 75.
----------------------------------------------------------------------------------------------------------------
                                                    Documents
----------------------------------------------------------------------------------------------------------------
20.2.75.9 NMAC...................  Documents..........    4/11/2002  Repeal and replace:       Approval.
                                                                      Documents cited may be
                                                                      viewed at physical
                                                                      location.
----------------------------------------------------------------------------------------------------------------
                                                   Filing Fee
----------------------------------------------------------------------------------------------------------------
20.2.75.10 NMAC..................  Filing Fee.........    4/11/2002  Repeal and replace:       Approval.
                                                                      Filing fees established
                                                                      for construction permit
                                                                      applications \7\.
----------------------------------------------------------------------------------------------------------------
                                   ...................    4/25/2005  Section revised to        Approval.
                                                                      include filing fee
                                                                      requirements for filing
                                                                      of a notice of intent.
----------------------------------------------------------------------------------------------------------------
                                                   Permit Fee
----------------------------------------------------------------------------------------------------------------
20.2.75.11 NMAC..................  Permit Fee.........    4/11/2002  Repeal and replace:       Approval.
                                                                      Complexity point-based
                                                                      permit fee schedule and
                                                                      annual fees established
                                                                      for construction permit
                                                                      applicants 8 9 10.
----------------------------------------------------------------------------------------------------------------
                                   ...................    4/25/2005  Section revised to        Approval.
                                                                      include complexity
                                                                      points for portable
                                                                      source relocation;
                                                                      increase annual fee
                                                                      amount; and establish
                                                                      requirement to update
                                                                      fee amounts annually
                                                                      based on the Consumer
                                                                      Price Index.
----------------------------------------------------------------------------------------------------------------
                                                 Payment of Fees
----------------------------------------------------------------------------------------------------------------
20.2.75.12 NMAC..................  Payment of Fees....    4/11/2002  Repeal and replace:       Approval.
                                                                      Construction permit fee
                                                                      payment requirements
                                                                      for filing fees,
                                                                      permits fees, and
                                                                      annual fees.
----------------------------------------------------------------------------------------------------------------
                                                 Periodic Review
----------------------------------------------------------------------------------------------------------------
20.2.75.13 NMAC..................  Periodic Review....    4/11/2002  Repeal and replace:       Approval.
                                                                      Construction permit
                                                                      fees and construction
                                                                      permit program costs
                                                                      will be reviewed
                                                                      annually.
----------------------------------------------------------------------------------------------------------------
\1\ The scope provisions submitted on April 11, 2002 as part of the repeal and replace references Operating
  Permits (20.2.70 NMAC) and Operating Permit Emission Fees (20.2.71 NMAC) related to the Title V program. The
  Title V program is subject to statutory and regulatory evaluation beyond the statutory scope of this
  rulemaking. CAA Section 110(a)(2) falls under Title I of the CAA. Any evaluation of the Title V program and
  related fees must be done pursuant to CAA section 502 through 507 and 40 CFR part 70. Therefore, we are
  approving the reference to Operating Permits and Operating Permit Emission Fees as part of the permit fee
  schedule for the purpose of compliance with the fee related requirements of section 110(a)(2), but we are not
  evaluating or approving into the SIP the underlying and related regulations found in 20.2.70 NMAC and 20.2.71
  NMAC through this rulemaking.
\2\ ``Air toxics review'' under the repeal and replace submitted April 11, 2002 references Air Toxics Review
  (20.2.72.400 NMAC-20.2.72.499 NMAC), which is a permitting program and regulation separate from the fee rules
  governed by 20.2.75 NMAC. The State Air Toxics program is subject to statutory and regulatory evaluation
  beyond the statutory scope of this rulemaking. This action is limited to determining whether the New Mexico
  fee SIP submittals meet the fee related requirements of section 110(a)(2). Therefore, we are approving the
  reference to Air Toxics Review as part of the permit fee schedule for the purpose of compliance with the fee
  related requirements of section 110(a)(2), but we are not evaluating or approving into the SIP the underlying
  and related regulations for Air Toxics Review through this rulemaking.

[[Page 18927]]

 
\3\ ``Applicable regulations'' under the repeal and replace submitted April 11, 2002 references Operating
  Permits (20.2.70 NMAC), Operating Permit Emissions Fees (20.2.71 NMAC), New Source Performance Standards
  (NSPS) (20.2.77 NMAC), Emission Standards for Hazardous Air Pollutants (NESHAP) (20.2.78 NMAC), and Maximum
  Achievable Control Technology Standards for Source Categories of Hazardous Air Pollutants (MACT) (20.2.82
  NMAC) (hereafter collectively referred to as Parts 70, 71, 77, 78, and 82), which are regulations separate
  from the fee rules governed by 20.2.75 NMAC. The regulations included in Parts 70, 71, 77, 78, and 82 are
  subject to statutory and regulatory evaluation beyond the statutory scope of this rulemaking. This action is
  limited to determining whether the New Mexico fee SIP submittals meet the fee related requirements of section
  110(a)(2). Therefore, we are approving the reference to these regulations as part of the permit fee schedule
  for the purpose of compliance with the fee related requirements of section 110(a)(2), but we are not
  evaluating or approving into the SIP the underlying and related regulations for Parts 70, 71, 77, 78, and 82
  through this rulemaking.
\4\ ``Fee unit'' under the repeal and replace submitted April 11, 2002 references Exemptions (20.2.72.202 NMAC),
  which are a permitting program and regulations separate from the fee rules governed by 20.2.75 NMAC. In this
  rulemaking, we are approving only the reference to Exemptions as part of the fee schedule required by the
  applicable requirements of section 110(a)(2). However, though we are approving these fee rules and the related
  references for the purpose of compliance with the fee related requirements of section 110(a)(2), we are not
  evaluating or approving into the SIP the underlying permitting program or regulations for Exemptions through
  this rulemaking. New Mexico has submitted these Exemptions in a separate SIP submittal, and we will act upon
  that submittal in a separate future rulemaking.
\5\ ``Revision'' under the repeal and replace submitted April 11, 2002 references Administrative Revisions as
  used in 20.2.72 NMAC, which are regulations separate from the fee rules governed by 20.2.75 NMAC. In this
  rulemaking, we are approving only the reference to Administrative Revisions as part of the fee schedule
  required by the applicable requirements of section 110(a)(2). However, though we are approving these fee rules
  and the related references for the purpose of compliance with the fee related requirements of section
  110(a)(2), we are not evaluating or approving into the SIP the underlying regulations for Administrative
  Revisions through this rulemaking. New Mexico has submitted the Administrative Revisions provisions in a
  separate SIP submittal, and we will act upon that submittal in a separate future rulemaking.
\6\ ``Small business'' under the repeal and replace submitted April 11, 2002 references 20.2.70 NMAC related to
  the Title V program. The Title V program is subject to statutory and regulatory evaluation beyond the
  statutory scope of this rulemaking. CAA Section 110(a)(2) falls under Title I of the CAA. Any evaluation of
  the Title V program must be done pursuant to CAA section 502 through 507 and 40 CFR part 70. Therefore, we are
  approving the reference to Operating Permits as part of the permit fee schedule for the purpose of compliance
  with the fee related requirements of section 110(a)(2), but we are not evaluating or approving into the SIP
  the underlying regulation found in 20.2.70 NMAC through this rulemaking.
\7\ The filing fee provisions submitted on April 11, 2002 as part of the repeal and replace includes filing fee
  requirements in 20.2.75.10(B) NMAC for permit applications filed under the Accelerated Review permit
  processing program (20.2.72.221 NMAC). New Mexico has withdrawn the provisions contained in 20.2.75.10(B) NMAC
  from the April 11, 2002 submittal since the underlying Accelerated Review permit processing program is not
  part of the New Mexico SIP.
\8\ The complexity point-based permit fee schedule submitted on April 11, 2002 as part of the repeal and replace
  includes permit fee requirements in 20.2.75.11(D) NMAC for permit applications filed under the Accelerated
  Review permit processing program (20.2.72.221 NMAC). New Mexico has withdrawn the provisions contained in
  20.2.75.11(D) NMAC from the April 11, 2002 submittal since the underlying Accelerated Review permit processing
  program is not part of the New Mexico SIP.
\9\ The complexity point-based permit fee schedule submitted on April 11, 2002 as part of the repeal and replace
  includes allotment of points to Air Toxics Review (20.2.72.400 NMAC-20.7.72.499 NMAC), NSPS, and NESHAP/MACT
  programs for the purpose of calculating a permit fee. Air Toxics Review, NSPS, and NESHAP/MACT programs are
  subject to statutory and regulatory evaluation beyond the statutory scope of this rulemaking. This action is
  limited to determining whether the New Mexico fee SIP submittals meet the fee related requirements of section
  110(a)(2). Therefore, we are approving the references to Air Toxics Review, NSPS, and NESHAP/MACT programs as
  part of the permit fee schedule for the purpose of compliance with the fee related requirements of section
  110(a)(2), but we are not evaluating or approving into the SIP the underlying and related regulations for Air
  Toxics Review, NSPS, and NESHAP/MACT programs through this rulemaking.
\10\ The complexity point-based permit fee schedule submitted on April 11, 2002 as part of the repeal and
  replace includes allotment of points to ``applicable regulations'' as represented by a generic catch-all
  provision denoted 20.2.X NMAC. (20.2.X NMAC includes those regulations that are applicable to sources as
  defined in 20.2.75.7(B)). 20.2.X NMAC includes regulations that are separate from the fee rules governed by
  20.2.75 NMAC. The regulations, sources, and programs represented by 20.2.X NMAC and as defined by 20.2.75.7(B)
  may be subject to statutory and regulatory evaluation beyond the statutory scope of this rulemaking. This
  action is limited to determining whether the New Mexico fee SIP submittals meet the fee related requirements
  of section 110(a)(2). Therefore, we are approving the reference to 20.2.X NMAC as part of the permit fee
  schedule for the purpose of compliance with the fee related requirements of section 110(a)(2), but we are not
  evaluating or approving into the SIP the underlying and related regulations including in 20.2.X NMAC through
  this rulemaking.

III. EPA's Evaluation

A. What are the requirements for EPA's review of a fees SIP submittal?

    The New Mexico EIB adopted and the Governor of New Mexico submitted 
the April 11, 2002, repeal and replace and the April 15, 2005, SIP 
revisions pursuant to the applicable provisions of section 110(a)(2) of 
the CAA related to fees. These federal requirements include permitting 
fees to cover the cost of reviewing, approving, implementing, and 
enforcing a permit. In addition to the applicable fee related 
requirements of section 110(a)(2), EPA's evaluation must consider 
section 110(l) of the CAA. Section 110(l) of the CAA states that EPA 
shall not approve a revision of the SIP if it would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement of the Act.

B. Do the submitted repeal and replace revisions and subsequent SIP 
revisions meet the CAA requirements?

    Based on EPA's evaluation of the April 11, 2002, and April 25, 
2005, SIP submittals, we find these submitted rules and revisions meet 
the applicable fee related requirements of section 110(a)(2) of the 
CAA. These rules and revisions are summarized in Table 1 of this 
rulemaking, and are analyzed with more detail in the TSD. The rules and 
revisions contained within the Governor of New Mexico's submittals 
demonstrate compliance with section 110(a)(2) of the Act. For example, 
the NMED assesses fees when an owner or operator applies for a notice 
of intent, a permit to construct or modify a source, or a revision to a 
construction permit. Additionally, annual fees are assessed for sources 
that have been issued a permit under 20.2.72 NMAC, Construction 
Permits. These fees are used to cover the costs of NMED's construction 
permit program, including permit review, issuance, and implementation 
costs. New Mexico indicated in the April 11, 2002, and April 25, 2005, 
SIP submittals that the repeal and replace and subsequent revisions to 
the construction permit fee requirement regulation are necessary for 
the Department to collect sufficient fees to cover the costs of the 
construction permit program. The fee schedule adopted by New Mexico and 
the fee rules and revisions further described and evaluated in this 
action and TSD, evince a basis for EPA's approval that the submittals 
meet the requirements of 110(a)(2).
    The fee assessment provisions in 20.2.75 NMAC and submitted to EPA 
are a portion of the regulatory scheme regulating NMED's construction 
permitting program, and provide for permitting fees to cover the cost 
of reviewing, approving, implementing, and enforcing a permit under the 
permitting program. EPA has previously reviewed the New Mexico EIB

[[Page 18928]]

regulations for the Nonattainment New Source Review Program, Prevention 
of Significant Deterioration Permitting, and Minor NSR program, and has 
approved these programs as being consistent with the federal 
requirements. EPA approved revisions to the Nonattainment New Source 
Review Program, the Prevention of Significant Deterioration Program, 
and the Minor NSR program on September 5, 2007 (72 FR 50879), July 30, 
2011 (76 FR 43149), September 26, 1997 (62 FR 50518) respectively. 
Based on our evaluation of these fee assessment rules and revisions 
both described in this notice and TSD, EPA finds they meet the fee 
related requirements of section 110(a)(2) to in part cover costs for 
these previously approved programs, and thus approves the rules and 
revisions as explained in Table 1.
    Our evaluation of the April 11, 2002, and April 25, 2005, SIP 
submittals also demonstrates compliance with section 110(l) of the CAA, 
and further provides basis for approval of these rules and revisions. 
Pursuant to section 110(l) of the CAA, the repeal and replace included 
in the April 11, 2002, SIP submittal provides for a broader breadth, 
application, and stringency of requirements related to fees than the 
construction permit fees contained in the previously approved SIP, 
which was approved by EPA on September 26, 1997. Based on EPA's 
evaluation of these fee assessment provisions submitted, EPA finds the 
submitted repeal and replace of, and subsequent revisions to, 20.2.75 
NMAC establishing fee requirements for permits is consistent section 
110(a)(2) of the CAA.

IV. Final Action

    EPA is taking direct final action to approve revisions to the New 
Mexico SIP submitted on April 11, 2002, and April 25, 2005. 
Specifically, EPA is approving the repeal and replacement of 20.2.75 
NMAC submitted on April 11, 2002, and subsequent revisions to sections 
20.2.75.5 NMAC, 20.2.75.7 NMAC, 20.2.75.10 NMAC, and 20.2.75.11 NMAC, 
submitted on April 25, 2005, establishing a revised permit fee schedule 
to cover the reasonable costs of the New Mexico construction permit 
program.
    EPA is not acting on other severable portions of the April 11, 
2002, and April 25, 2005, SIP submittals.\11\ Specifically, EPA is not 
taking action on the revisions submitted on April 11, 2002, to 20.2.72 
NMAC, Construction Permits; 20.2.73 NMAC, Notice of Intent and 
Emissions Inventory Requirements; and 20.2.79 NMAC, Permits--
Nonattainment Areas. EPA is also not taking action on the revisions 
submitted on April 25, 2005, to 20.2.66 NMAC, Cotton Gins; 20.2.72 
NMAC, Construction Permits; and 20.2.73 NMAC, Notice of Intent and 
Emissions Inventory Requirements. These revisions have been or will be 
addressed by EPA in separate SIP revision reviews and rule actions.
---------------------------------------------------------------------------

    \11\ By severable, we mean that the portions of the SIP 
revisions that address fees can be implemented independently of the 
remaining portions of the submittal, without affecting the 
stringency of the submitted rules. In addition, the remaining 
portions of the submittal are not necessary for approval of the 
provisions addressing fees.
---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 29, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposed of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 16, 2012.
Al Armendariz,
Regional Administrator, EPA Region 6.

    40 CFR part 52 is amended as follows:

[[Page 18929]]

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart GG--New Mexico

0
2. The first table in Sec.  52.1620(c) entitled ``EPA Approved New 
Mexico Regulations'' is amended by revising the entry for Part 75 to 
read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                                                           EPA Approved New Mexico Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      State
                                                                    approval/
            State citation                    Title/subject         effective               EPA approval date                         Comments
                                                                       date
--------------------------------------------------------------------------------------------------------------------------------------------------------
                              New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Part 75...............................  Construction Permit Fees.    12/1/2003  3/29/2012 [Insert FR page number where     NOT in SIP: subsection (B) of
                                                                                 document begins]                           20.2.75.10 and subsection
                                                                                                                            (D) of 20.2.75.11.
                                                                                                                           References to 20.2.70,
                                                                                                                            20.2.71, 20.2.72.400-
                                                                                                                            20.2.72.499, 20.2.77,
                                                                                                                            20.2.78, 20.2.82, and 20.2.X
                                                                                                                            are approved for Part 75
                                                                                                                            only; underlying and related
                                                                                                                            regulations for referred
                                                                                                                            Parts NOT in SIP.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-7561 Filed 3-28-12; 8:45 am]
BILLING CODE 6560-50-P


