
[Federal Register Volume 77, Number 230 (Thursday, November 29, 2012)]
[Proposed Rules]
[Pages 71145-71163]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28910]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-NM-0006; FRL-9756-3]


Approval and Promulgation of Implementation Plans; New Mexico; 
New Source Review (NSR) Preconstruction Permitting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the applicable New 
Source Review (NSR) State Implementation Plan (SIP) for New Mexico. 
Among the changes, EPA is proposing to approve are the following: The 
establishment of a new minor NSR (MNSR) general construction permitting 
program; changes to the MNSR Public Participation requirements; the 
establishment of three different types of MNSR Permit Revisions; and 
the addition of exemptions for de minimis emission sources and 
activities from obtaining a MNSR permit. EPA proposes to find that 
these revisions to the New Mexico SIP comply with the Federal Clean Air 
Act (the Act or CAA) and EPA regulations and are consistent with EPA 
policies. EPA is proposing this action under section 110 of the Act.

DATES: Comments must be received on or before December 31, 2012.

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, 1301 Siler 
Road, Building B, 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.

[[Page 71146]]

     ``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 proposing?
II. What did New Mexico submit?
    A. May 29, 1998 SIP Revision Submittal
    B. November 6, 1998 SIP Revision Submittal
    C. April 11, 2002 SIP Revision Submittal
    D. April 25, 2005 SIP Revision Submittal
    E. November 2, 2006 SIP Revision Submittal
III. EPA's Evaluation
    A. What are the requirements for EPA's evaluation of a 
preconstruction permitting program SIP submittal?
    B. Technical Review of New Mexico's SIP Revision Submittals
    1. Submitted Revisions to Section 203--Contents of Permit 
Applications
    2. Submitted Revisions to Section 207--Permit Decisions and 
Appeals
    3. Submitted Revisions to Section 216--New Applicability 
Conditions and Requirements for Sources Located in Nonattainment 
Areas
    4. Submittal of New Section 220--Minor NSR General Permits
    a. 110(l) Analysis for Section 220
    5. Submitted Revisions to Section 206--Public Notice and 
Participation for Minor NSR
    a. 110(l) Analysis for Section 206
    6. Submittal of New Section 219--Permit Revisions for Minor NSR
    a. Administrative Permit Revisions
    b. Technical Permit Revisions
    c. 110(l) Analysis for Technical Revisions
    d. Significant Permit Revisions
    7. Submitted Revisions to Section 202--New Exemptions for de 
minimis Sources and Activities From Minor NSR Permitting 
Requirements
    a. Paragraph A Exemptions
    b. 110(l) Analysis for Paragraph A Exemptions
    c. Paragraph B Exemptions
    d. 110(l) Analysis for Paragraph B Exemptions
    e. Paragraph C Exemptions
    f. 110(l) Analysis for Paragraph C Exemptions
    g. Portable Source Relocation
    h. Additional 110(l) Analysis--Historical Look Back
IV. Proposed Action
    A. What are we not addressing in this proposed action?
V. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    The Act at section 110(a)(2) requires states to develop and submit 
to EPA for approval into the SIP preconstruction review and permitting 
programs applicable to certain new and modified stationary sources of 
air pollutants for attainment and nonattainment areas that cover both 
major and minor sources and modifications, collectively referred to as 
the NSR SIP. The CAA NSR SIP program is composed of three separate 
programs: Prevention of Significant Deterioration (PSD), Nonattainment 
New Source Review (NNSR), and MNSR. PSD is established in part C of 
title I of the CAA and applies in areas that meet the NAAQS--
``attainment areas''--as well as areas where there is insufficient 
information to determine if the area meets the NAAQS--``unclassifiable 
areas.'' The NNSR SIP program is established in part D of title I of 
the CAA and applies in areas that are not in attainment of the NAAQS--
``nonattainment areas.'' The Minor NSR SIP program addresses 
construction or modification activities that do not emit, or have the 
potential to emit, beyond certain thresholds and thus do not qualify as 
``major'' and applies regardless of the NAAQS designation of the area 
in which a source is located. Together, these programs are referred to 
as the NSR program. EPA regulations governing the criteria that states 
must satisfy for EPA approval of the NSR programs as part of the SIP 
are contained in 40 CFR 51.160-51.166; and part 51, Appendix S.
    EPA is proposing to approve revisions to the NSR SIP for New Mexico 
submitted on May 29, 1998, November 6, 1998, April 11, 2002, April 25, 
2005, and November 2, 2006, which incorporate changes to the 
Construction Permits regulation contained in 20.2.72 of the New Mexico 
Administrative Code (NMAC), also known as Part 72. Part 72 contains the 
provisions that establish New Mexico's Minor NSR permitting program as 
well as preconstruction permitting requirements potentially applicable 
to other programs under the NMAC. EPA also is proposing to approve as 
part of the New Mexico NSR SIP, the letter dated November 7, 2012, from 
the Secretary committing the NMED Air Quality Bureau to providing 
notification on the NMED's Web site of all second 30-day public comment 
periods provided for under Paragraph B of Section 206 of Part 72.
    The five SIP revisions submittals under review in this action 
contain proposed changes to each of the current SIP-approved Sections 
of Part 72 and include the proposed addition of two new Sections within 
the Part. All changes are identified in Table 1 of this rulemaking. 
These proposed changes include non-substantive changes to Part 72, such 
as corrections of typographical errors and additions of clarifying 
language to the existing SIP. These proposed changes also include 
revisions that result in a more stringent SIP than currently approved, 
such as incorporation of additional recordkeeping and notification 
requirements for portable sources to relocate without a permit; these 
changes resulting in a more stringent SIP are discussed in more detail 
in this rulemaking and TSD. Furthermore, some of the revisions include 
changes that alter current SIP-approved permitting programs but still 
meet applicable federal requirements, such as a change from case-by-
case permitting to general permitting for certain Minor NSR sources. 
Finally, proposed changes also include revisions that are less 
stringent than the current SIP and those revisions must be evaluated 
under section 110(l) of the CAA to determine they will not interfere 
with attainment or reasonable further progress or any other applicable 
requirement of the Act. These revisions include the addition of 
exemptions for de minimis sources and activities from MNSR permitting 
requirements, tiered permit revisions, and changes to MNSR public 
notice and participation requirements. The November 7, 2012 letter from 
the Secretary provides clarifying information for the changes to NMSR 
public notice and participation requirements. Our technical analysis of 
all these proposed changes contained in the May 29, 1998, November 6, 
1998, April 11, 2002, April 25, 2005, and November 2, 2006 SIP revision 
submittals, the Secretary's November 7, 2012 letter, and additional 
supplemental information provided by NMED, has found that they meet the 
CAA and 40 CFR Part 51 and are consistent with EPA 
policies.1 2 3 4 Therefore, EPA proposes action to approve 
the revisions to Part 72 and the Secretary's November 7, 2012 letter 
into the New Mexico NSR SIP. EPA is proposing this action under section 
110 of the Clean Air Act (the Act). We

[[Page 71147]]

provide a summary of the reasoning comprising our evaluation in this 
rulemaking, as well as a more detailed evaluation and analysis in the 
Technical Support Document (TSD) for this rulemaking.
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    \1\ Clarification of Exemptions in Section 202 of 20.2.72 NMAC--
Construction Permits letter dated September 19, 2012 from Richard L. 
Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate 
Director for Air Programs, EPA, Region 6.
    \2\ Clarification of Intent for Section 220 of 20.2.72 NMAC--
Construction Permits letter dated September 19, 2012 from Richard L. 
Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate 
Director for Air Programs, EPA, Region 6.
    \3\ Permit Exemptions data provided via electronic mail dated 
September 18, 2012, from Kerwin Singleton, NMED, to Ashley Mohr, 
EPA, Region 6.
    \4\ Historical Technical permit revisions data was provided via 
electronic mail dated November 2, 2012, from Kerwin Singleton, NMED, 
to Ashley Mohr, EPA, Region 6.
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II. What did New Mexico submit?

    EPA's proposed approval action today addresses portions of five 
revisions to the New Mexico SIP submitted on May 29, 1998, November 6, 
1998, April 11, 2002, April 25, 2005, and November 2, 2006. EPA also is 
proposing to approve as part of the New Mexico NSR SIP, the letter 
dated November 7, 2012, from the Secretary.

A. May 29, 1998 SIP Revision Submittal

    The State of New Mexico submitted a revision on May 29, 1998 to 
20.2.72 NMAC--Construction Permits for incorporation into the New 
Mexico SIP. This submittal includes the following changes:
     Revisions to the following sections: 20.2.72.104 NMAC, 
Effective Date; 20.2.72.202 NMAC, Permit Revisions; 20.2.72.203 NMAC, 
Contents of Applications; and 20.2.72.207 NMAC, Permit Decisions and 
Appeals.
     Addition of the following new sections: 20.2.72.219 NMAC, 
Permit Revisions and 20.2.72.220 NMAC, General Permits.

B. November 6, 1998 SIP Revision Submittal

    The State of New Mexico submitted a revision on November 6, 1998 to 
20.2.72 NMAC--Construction Permits for incorporation into the New 
Mexico SIP. This submittal includes the following changes:
     Revisions to the following sections: 20.2.72.210 NMAC, 
Permit Conditions and 20.2.72.300 NMAC, Definitions.

C. April 11, 2002 SIP Revision Submittal

    The State of New Mexico submitted a revision on April 11, 2002 to 
20.2.72 NMAC--Construction Permits for incorporation into the New 
Mexico SIP. This submittal includes the following changes:
     Revisions to the following sections: 20.2.72.107 NMAC, 
Definitions; 20.2.72.201 NMAC, New Source Review Coordination; 
20.2.72.203 NMAC, Contents of Applications; 20.2.72.206 NMAC, Public 
Notice and Participation; 20.2.72.207 NMAC, Permit Decisions and 
Appeals; 20.2.72.208 NMAC, Basis for Denial of Permit; 20.2.72.215 
NMAC, Emergency Permit Process; 20.2.72.219 NMAC, Permit Revisions; 
20.2.72.220 NMAC, General Permits; 20.2.72.301 NMAC, Applicability; 
20.2.72.302 NMAC, Contents of Applications; and 20.2.72.304 NMAC, 
Permit Decisions.
     In addition to the revisions of the previously listed 
sections, the April 11, 2002 submittal also included the renumbering of 
several existing sections and formatting changes that were made 
throughout the entire Part. These formatting changes were necessary for 
the provisions contained in Part 72 to match the formatting style of 
other Parts contained in the NMAC.

D. April 25, 2005 SIP Revision Submittal

    The State of New Mexico submitted a revision on April 25, 2005 to 
20.2.72 NMAC--Construction Permits for incorporation into the New 
Mexico SIP. This submittal includes the following changes:
     Revisions to the following section: 20.2.72.219 NMAC, 
Permit Revisions.

E. November 2, 2006 SIP Revision Submittal

    The State of New Mexico submitted a revision on November 2, 2006 to 
20.2.72 NMAC--Construction Permits for incorporation into the New 
Mexico SIP. This submittal includes the following changes:
     Revisions to the following section: 20.2.72.216 NMAC, 
Nonattainment Area Requirements.
    Table 1 summarizes the changes that are in the SIP revisions 
submitted on May 29, 1998, November 6, 1998, April 11, 2002, April 25, 
2005, and November 2, 2006. A summary of EPA's evaluation of each 
section and the basis for this action is discussed in Section III of 
this preamble. The TSD includes a detailed evaluation of the referenced 
SIP submittals. Table 1. Summary of each SIP submittal that is affected 
by this action.

                     Table 1--Summary of Each SIP Submittal That Is Affected by This Action
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                                                       Submittal
            Section                    Title             dates       Description of change     Proposed  action
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                                       20.2.72 NMAC--Construction Permits
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                                                 Issuing Agency
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20.2.72.100 NMAC..............  Issuing Agency....       4/11/2002  Section 100 renumbered   Approval.
                                                                     to Section 1 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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                                                      Scope
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20.2.72.101 NMAC..............  Scope.............       4/11/2002  Section 101 renumbered   Approval.
                                                                     to Section 2 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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                                               Statutory Authority
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20.2.72.102 NMAC..............  Statutory                4/11/2002  Section 102 renumbered   Approval.
                                 Authority.                          to Section 3 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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                                                    Duration
----------------------------------------------------------------------------------------------------------------
20.2.72.103 NMAC..............  Duration..........       4/11/2002  Section 103 renumbered   Approval.
                                                                     to Section 4 and
                                                                     revised to update the
                                                                     section title and
                                                                     section references
                                                                     formatting.
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                                                 Effective Date
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20.2.72.104 NMAC..............  Effective Date....       5/29/1998  Section revised to       Approval.
                                                                     account for different
                                                                     effective dates for
                                                                     the different sections
                                                                     contained in this Part.

[[Page 71148]]

 
                                                         4/11/2002  Section 104 renumbered   Approval.
                                                                     to Section 5 and
                                                                     revised to update the
                                                                     section title and date
                                                                     formatting.
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                                                    Objective
----------------------------------------------------------------------------------------------------------------
20.2.72.105 NMAC..............  Objective.........       4/11/2002  Section 105 renumbered   Approval.
                                                                     to Section 6 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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                                 Amendment and Supersession of Prior Regulations
----------------------------------------------------------------------------------------------------------------
20.2.72.106 NMAC..............  Amendment and            4/11/2002  Section 106 renumbered   Approval.
                                 Supersession of                     to Section 8 and
                                 Prior Regulations.                  revised to update the
                                                                     section title
                                                                     formatting.
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                                                   Definitions
----------------------------------------------------------------------------------------------------------------
20.2.72.107 NMAC..............  Definitions.......       4/11/2002  Section 107 renumbered   Approval.
                                                                     to Section 7 and
                                                                     revised to update the
                                                                     section title, section
                                                                     references, and list
                                                                     numbering formatting;
                                                                     Section revised to
                                                                     update the definition
                                                                     of ``Potential
                                                                     Emission Rate''.
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                                                    Documents
----------------------------------------------------------------------------------------------------------------
20.2.72.108 NMAC..............  Documents.........       4/11/2002  Section 108 renumbered   Approval.
                                                                     to Section 9 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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               Application for Construction Modification, NSPS, and NESHAP--Permits and Revisions
----------------------------------------------------------------------------------------------------------------
20.2.72.200 NMAC..............  Application for          4/11/2002  Section revised to       Approval.
                                 Construction,                       update the section
                                 Modification,                       title, section
                                 NSPS, and NESHAP--                  references, and list
                                 Permits and                         numbering formatting.
                                 Revisions.
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                                         New Source Review Coordination
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20.2.72.201 NMAC..............  New Source Review        4/11/2002  Section revised to       Approval.
                                 Coordination.                       include clarification
                                                                     regarding the number
                                                                     of applications
                                                                     required if source is
                                                                     subject to NSR under
                                                                     multiple parts;
                                                                     Section revised to
                                                                     update the section
                                                                     title and section
                                                                     references formatting.
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                                                Permit Revisions
----------------------------------------------------------------------------------------------------------------
20.2.72.202 NMAC..............  Permit Revisions..       5/29/1998  Section revised to add   Approval.
                                                                     a list of emission
                                                                     sources and activities
                                                                     that may be exempt
                                                                     from certain
                                                                     preconstruction
                                                                     permitting
                                                                     requirements; Section
                                                                     revised to include an
                                                                     exemption from
                                                                     preconstruction
                                                                     permitting
                                                                     applicability for a
                                                                     specific group of
                                                                     sources that trigger
                                                                     permitting only as a
                                                                     result of NSPS and
                                                                     NESHAP requirements.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
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                                            Contents of Applications
----------------------------------------------------------------------------------------------------------------
20.2.72.203 NMAC..............  Contents of              5/29/1998  Section revised to       Approval.
                                 Applications.                       update provisions to
                                                                     reflect the tiered
                                                                     permit revisions
                                                                     approach and to add
                                                                     clarifying language
                                                                     regarding public
                                                                     notice requirements,
                                                                     including requirements
                                                                     for public service
                                                                     announcements.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
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                                       Confidential Information Protection
----------------------------------------------------------------------------------------------------------------
20.2.72.204 NMAC..............  Confidential             4/11/2002  Section revised to       Approval.
                                 Information                         update the section
                                 Protection.                         title and section
                                                                     references formatting.
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                       Construction, Modification and Permit Revision in Bernalillo County
----------------------------------------------------------------------------------------------------------------
20.2.72.205 NMAC..............  Construction,            4/11/2002  Section revised to       Approval.
                                 Modification and                    update the section
                                 Permit Revision                     title formatting.
                                 in Bernalillo
                                 County.
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[[Page 71149]]

 
                                         Public Notice and Participation
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20.2.72.206 NMAC..............  Public Notice and        5/29/1998  Section was revised to   Approval.
                                 Participation.                      remove a descriptive
                                                                     term from the
                                                                     provisions that the
                                                                     Department felt was
                                                                     unnecessary and caused
                                                                     confusion in the
                                                                     current provisions.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting;
                                                                     Section revised to
                                                                     change the public
                                                                     notice process to a
                                                                     two-step notice with
                                                                     the public comment
                                                                     period reduced from 45
                                                                     days to 30 days.
----------------------------------------------------------------------------------------------------------------
                                          Permit Decisions and Appeals
----------------------------------------------------------------------------------------------------------------
20.2.72.207 NMAC..............  Permit Decisions         5/29/1998  Section revised to       Approval.
                                 and Appeals.                        include clarifying
                                                                     language and to
                                                                     specify what
                                                                     requirements in the
                                                                     section apply only to
                                                                     significant permit
                                                                     revisions.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                           Basis for Denial of Permit
----------------------------------------------------------------------------------------------------------------
20.2.72.208 NMAC..............  Basis for Denial         4/11/2002  Section revised to       Approval.
                                 of Permit.                          include clarifying
                                                                     language and to delete
                                                                     references to
                                                                     provisions that have
                                                                     been previously
                                                                     removed from the NMAC.
----------------------------------------------------------------------------------------------------------------
                                 Additional Legal Responsibilities on Applicants
----------------------------------------------------------------------------------------------------------------
20.2.72.209 NMAC..............  Additional Legal         4/11/2002  Section revised to       Approval.
                                 Responsibilities                    update the section
                                 on Applicants.                      title formatting.
----------------------------------------------------------------------------------------------------------------
                                                Permit Conditions
----------------------------------------------------------------------------------------------------------------
20.2.72.210 NMAC..............  Permit Conditions.       11/6/1998  Section was revised to   Approval.
                                                                     correct a
                                                                     typographical error
                                                                     that was adopted by
                                                                     the state in a
                                                                     previous revision of
                                                                     the Section.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                              Permit Cancellations
----------------------------------------------------------------------------------------------------------------
20.2.72.211 NMAC..............  Permit                   4/11/2002  Section revised to       Approval.
                                 Cancellations.                      update the section
                                                                     title and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                               Permittee's Notification Requirements to Department
----------------------------------------------------------------------------------------------------------------
20.2.72.212 NMAC..............  Permittee's              4/11/2002  Section revised to       Approval.
                                 Notification                        update the section
                                 Requirements to                     title.
                                 Department.
----------------------------------------------------------------------------------------------------------------
                                          Startup and Followup Testing
----------------------------------------------------------------------------------------------------------------
20.2.72.213 NMAC..............  Startup and              4/11/2002  Section revised to       Approval.
                                 Followup Testing.                   update the section
                                                                     title and section
                                                                     references formatting.
----------------------------------------------------------------------------------------------------------------
                              Source Class Exemption Process (Permit Streamlining)
----------------------------------------------------------------------------------------------------------------
20.2.72.214 NMAC..............  Source Class             4/11/2002  Section revised to       Approval.
                                 Exemption Process                   update the section
                                 (Permit                             title, section
                                 Streamlining).                      references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                            Emergency Permit Process
----------------------------------------------------------------------------------------------------------------
20.2.72.215 NMAC..............  Emergency Permit         4/11/2002  Section revised to       Approval.
                                 Process.                            update the section
                                                                     title and section
                                                                     references formatting.
----------------------------------------------------------------------------------------------------------------
                                         Nonattainment Area Requirements
----------------------------------------------------------------------------------------------------------------
20.2.72.216 NMAC..............  Nonattainment Area       4/11/2002  Section revised to       Approval.
                                 Requirements.                       update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
                                                         11/2/2006  Section revised to       Approval.
                                                                     include clarifying
                                                                     language and to
                                                                     specify permitting
                                                                     applicability tests
                                                                     for permit actions in
                                                                     nonattainment areas.
----------------------------------------------------------------------------------------------------------------

[[Page 71150]]

 
                                            Compliance Certifications
----------------------------------------------------------------------------------------------------------------
20.2.72.217 NMAC..............  Compliance               4/11/2002  Section revised to       Approval.
                                 Certifications.                     update the section
                                                                     title and section
                                                                     references formatting.
----------------------------------------------------------------------------------------------------------------
                                                   Enforcement
----------------------------------------------------------------------------------------------------------------
20.2.72.218 NMAC..............  Enforcement.......       4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                                Permit Revisions
----------------------------------------------------------------------------------------------------------------
20.2.72.219 NMAC..............  Permit Revisions..       5/29/1998  Section added to the     Approval.
                                                                     Part and permit
                                                                     revisions previously
                                                                     contained in Section
                                                                     202 were moved to this
                                                                     Section and revised to
                                                                     include three separate
                                                                     tiers of permit
                                                                     revisions.
                                                         4/11/2002  Section updated to       Approval.
                                                                     revise references to
                                                                     other provisions in
                                                                     the Part that were
                                                                     changes as a result of
                                                                     simultaneous updates;
                                                                     Section revised to
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
                                                         4/25/2005  Section updated to       Approval.
                                                                     include two additional
                                                                     permit actions that
                                                                     would qualify as
                                                                     Technical permit
                                                                     revisions instead of
                                                                     Significant revisions.
----------------------------------------------------------------------------------------------------------------
                                                 General Permits
----------------------------------------------------------------------------------------------------------------
20.2.72.220 NMAC..............  General Permits...       5/29/1998  Section added to the     Approval.
                                                                     Part to include
                                                                     provisions related to
                                                                     the state adopted
                                                                     General Permits
                                                                     preconstruction
                                                                     program \a\.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                                   Definitions
----------------------------------------------------------------------------------------------------------------
20.2.72.300 NMAC..............  Definitions.......       11/6/1998  Section was revised to   Approval.
                                                                     correct a
                                                                     typographical error
                                                                     that was adopted by
                                                                     the state in a
                                                                     previous revision of
                                                                     the Section.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title and section
                                                                     references formatting.
----------------------------------------------------------------------------------------------------------------
                                                  Applicability
----------------------------------------------------------------------------------------------------------------
20.2.72.301 NMAC..............  Applicability.....       4/11/2002  Section updated to       Approval.
                                                                     revise references to
                                                                     other provisions in
                                                                     the Part that were
                                                                     changes as a result of
                                                                     simultaneous updates;
                                                                     Section revised to
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                            Contents of Applications
----------------------------------------------------------------------------------------------------------------
20.2.72.302 NMAC..............  Contents of              4/11/2002  Section revised to       Approval.
                                 Applications.                       include clarifying
                                                                     language regarding the
                                                                     permit application
                                                                     requirements for
                                                                     applicant's seeking a
                                                                     streamlined
                                                                     construction permit;
                                                                     Section revised to
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                         Public Notice and Participation
----------------------------------------------------------------------------------------------------------------
20.2.72.303 NMAC..............  Public Notice and        4/11/2002  Section revised to       Approval.
                                 Participation.                      update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                                Permit Decisions
----------------------------------------------------------------------------------------------------------------
20.2.72.304 NMAC..............  Permit Decisions..       4/11/2002  Section revised to       Approval.
                                                                     include clarifying
                                                                     language regarding the
                                                                     review of a permit
                                                                     application for
                                                                     ``administrative
                                                                     completeness'';
                                                                     Section revised to
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                              General Requirements
----------------------------------------------------------------------------------------------------------------
20.2.72.305 NMAC..............  General                  4/11/2002  Section revised to       Approval.
                                 Requirements.                       update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------

[[Page 71151]]

 
                                            Source Class Requirements
----------------------------------------------------------------------------------------------------------------
20.2.72.306 NMAC..............  Source Class             4/11/2002  Section revised to       Approval.
                                 Requirements.                       update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                   Table 1--Significant Ambient Concentrations
----------------------------------------------------------------------------------------------------------------
20.2.72.500 NMAC..............  Table 1--                4/11/2002  Section revised to       Approval.
                                 Significant                         update the section
                                 Ambient                             title formatting.
                                 Concentrations.
----------------------------------------------------------------------------------------------------------------
                              Table 2--Permit Streamlining Source Class Categories
----------------------------------------------------------------------------------------------------------------
20.2.72.501 NMAC..............  Table 2--Permit          4/11/2002  Section revised to       Approval.
                                 Streamlining                        update the section
                                 Source Class                        title formatting.
                                 Categories.
----------------------------------------------------------------------------------------------------------------
\a\ 20.2.72.220(A)(2)(c)(i) NMAC references the requirements found in 20.2.77 NMAC, 20.2.78 NMAC, and 20.2.82
  NMAC (hereafter collectively referred to as Parts 77, 78, and 82), which are regulations separate from the
  preconstruction permitting rules governed by 20.2.72 NMAC. The regulations included in Parts 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 revisions to the Part 72--Construction Permit provisions contained in
  the New Mexico SIP comply with the Federal Clean Air Act and EPA regulations and are consistent with EPA
  policies. Therefore, we are approving the reference to these regulations as part of the General Permits
  provisions being approved into Part 72 of the New Mexico SIP so as to include the requirement that general
  construction permits contain adequate permit conditions to ensure compliance with the requirements contained
  in Parts 77, 78, and 82, but we are not evaluating or approving into the SIP the underlying and related
  regulations for these Parts through this rulemaking.

III. EPA's Evaluation

    The current New Mexico SIP includes EPA-approved Part 72 provisions 
(see 62 FR 50514, September 26, 1997), which are related to New 
Mexico's MNSR construction permit program and preconstruction 
permitting requirements potentially applicable to other programs under 
the New Mexico Administrative Code. Since the September 26, 1997 EPA 
approval, New Mexico has submitted revisions to Part 72 provisions to 
EPA for review and action on the following dates: May 29, 1998, 
November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006. 
The following sections of this proposed action and the accompanying TSD 
analyze the proposed revisions to the Construction Permits regulation 
found in Part 72 to preliminarily determine whether the submitted 
revisions and the Secretary's Letter dated November 7, 2012 as a whole 
support the CAA, EPA policy, and guidance for NSR permitting.

A. What are the requirements for EPA's evaluation of a preconstruction 
permitting program SIP submittal?

    The State of New Mexico submitted revisions to its NSR SIP on May 
29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and 
November 2, 2006, incorporating changes to the Construction Permits 
regulation contained in 20.2.72 NMAC for approval by EPA as revisions 
to the New Mexico NSR SIP. These SIP revisions were submitted pursuant 
to the applicable requirements of section 110(a)(2) of the CAA. For 
example, the federal requirements at Section 110(a)(2)(A) direct each 
SIP to include enforceable emission limitations necessary or 
appropriate to meet the CAA's applicable requirements. Section 
110(a)(2)(C) requires each SIP to include a program to provide for the 
enforcement of the measures described in 110(a)(2)(A), and regulation 
of the modification and construction of any stationary source within 
attainment/unclassifiable areas and nonattainment areas. EPA 
regulations further governing the criteria that states must satisfy for 
EPA approval of the NSR programs as part of the SIP are contained in 40 
CFR 51.160--51.166; and part 51, Appendix S.
    In addition to the applicable preconstruction permitting program 
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. Thus, 
under CAA section 110(l), the proposed NSR SIP revision submittals must 
not interfere with attainment, reasonable further progress, or any 
other applicable requirement of the Act. The provisions contained in 
Part 72 are applicable to all ``regulated air pollutants,'' which 
includes all pollutants for which there are NAAQS. Therefore, as part 
of the 110(l) analysis, we have evaluated the proposed NSR SIP revision 
submittals for their impacts on attainment and reasonable further 
progress for all NAAQS pollutants. The entire state of New Mexico is 
designated attainment for all pollutants, with the exception of 
PM10 and 1-hour ozone. The only area designated 
nonattainment for PM10 in New Mexico is Anthony, which is 
located in Dona Ana County, and the only area designated nonattainment 
for the 1-hour ozone NAAQS is Sunland Park, which is also located in 
Dona Ana County.\5\
---------------------------------------------------------------------------

    \5\ The Sunland Park area has unique considerations for ozone 
planning due to airshed contributions from Mexico and Texas. Air 
quality within the Paso del Norte Airshed has improved over the last 
10 years due to cooperative efforts between the State of Texas, the 
State of New Mexico, and Mexico through organizations such as the 
Paso Del Norte Joint Advisory Committee (JAC). Although the area has 
continued to monitor attainment of the 1-hour ozone standard the 
State chose not to submit a request for redesignation before EPA 
revoked the 1-hour ozone NAAQS. Monitors in Sunland Park continue to 
reflect attainment of the 1-hour ozone NAAQS. The State, however, 
did not submit a request for redesignation of the area to attainment 
for the 1-hour ozone standard and a section 175A maintenance plan. 
Because the area was never redesignated to attainment, the area must 
continue to meet the 1-hour ozone marginal area applicable 
requirements (see 40 CFR 51.905(a)(3)). Sunland Park has met the 
revoked 1-hour ozone standard since 1998. (See 76 FR 28181).
---------------------------------------------------------------------------

    In EPA's technical review of New Mexico's submitted SIP revisions, 
as further discussed in Section III.B of this preamble, and the TSD, we 
evaluate each revision against the applicable federal requirements and 
regulations.

[[Page 71152]]

B. Technical Review of New Mexico's SIP Revision Submittals

    The provisions found in Part 72 are divided into five subparts. 
Four of the five subparts contain provisions that are currently 
approved into the New Mexico SIP, with Subpart IV (20.2.72.400 NMAC--
20.2.72.499 NMAC), which relates to Permits for Toxic Air Pollutant 
Emission, being outside of the scope of the New Mexico SIP.\6\ The 
remaining four SIP-approved subparts are as follows: Subpart I 
(20.2.72.100 NMAC--20.2.72.199 NMAC)--General Provisions, Subpart II 
(20.2.72.200 NMAC--20.2.72.299 NMAC)--Permit Processing and 
Requirements, Subpart III (20.2.72.300 NMAC--20.2.72.399 NMAC)--Source 
Class Permit Streamlining, and Subpart V--Appendix. As part of the five 
SIP revision submittals under review in the action, changes were made 
to the provisions contained in each of the four SIP-approved subparts. 
As detailed in the TSD, the May 29, 1998, November 6, 1998, April 11, 
2002, April 25, 2005, and November 2, 2006 SIP submittals meet the 
completeness criteria established in 40 CFR 51, Appendix V. In addition 
to the completeness review, the revisions contained in the five SIP 
submittals were evaluated against the applicable requirements contained 
in the Act and 40 CFR 51. A Section-by-Section review showing each 
proposed change made to Part 72 is included in the TSD for this 
proposed action, which also includes a summary of the revisions made to 
each specific section of Part 72. The following sections of this 
preamble provide a summary of the reasoning comprising our evaluation 
used in this rulemaking, specifically for those proposed revisions that 
include substantive changes to Part 72.
---------------------------------------------------------------------------

    \6\ Subparts I, II, III, and V were approved by EPA on September 
26, 1997 (62 FR 50518), effective November 25, 1997.
---------------------------------------------------------------------------

1. Submitted Revisions to Section 203--Contents of Permit Applications
    40 CFR 51.160 contains federal requirements regarding information 
an owner or operator of a new or modified source must submit to the 
State or local agency. The current SIP-approved Part 72 contains 
requirements regarding contents of a permit application that any person 
seeking a permit under 20.2.72.200(A) NMAC must file with the 
Department. New Mexico has proposed several revisions to the required 
contents of permit applications as specified in Section 203 in the May 
29, 1998 and April 11, 2002 SIP revision submittals. In addition to 
formatting, clarification, and other non-substantive changes detailed 
in the TSD, these revisions include substantive changes that add to 
existing SIP-approved requirements. These changes include the addition 
of provisions related to the changing, supplementing, or correcting a 
previously submitted permit application. The revisions also include the 
provision of additional requirements tied to the existing Public 
Service Announcement requirements for permit applicants. Because the 
revisions to the current SIP-approved Section 203 include additional 
requirements for permit applicants with respect to the contents of 
permit applications that were not present in the current SIP, we 
propose to approve these revisions into the New Mexico SIP as meeting 
applicable federal requirements, including 40 CFR 51.160.
2. Submitted Revisions to Section 207--Permit Decisions and Appeals
    Section 207 of the currently approved SIP includes procedural 
requirements regarding permit and permit revision issuance by the 
Department, and petition for hearing and appeal procedural requirements 
for applicants adversely affected by a permit decision by the 
Department. The May 29, 1998 and April 11, 2002 SIP revisions include 
clarifying language, formatting changes, and other non-substantive 
changes to Section 207, which are further detailed in the TSD. The May 
29, 1998 SIP revision also added language to change the applicability 
of Section 207's requirements regarding the Department's completeness 
determination and time frame within which the Department must take 
action on a permit application to Significant permit revisions, rather 
than all permit revisions. This change reflects the tiered permit 
revision approach adopted by New Mexico under the newly added Section 
219, and that approach is further discussed in Subsection III.B.6 of 
this preamble.
    The submitted Section 207 requirements, in part, specify numbers of 
days within which the Department shall either grant, grant subject to 
conditions, or deny a permit or permit revision after the Department 
deems a permit application administratively complete. For permit 
applications that are subject to the PSD requirements of Part 74, the 
April 11, 2002 SIP revision reduced the time for the Department's 
action from 240 days to 180 days.\7\ Section 165(c) of the CAA requires 
that any completed PSD permit application shall be granted or denied no 
later than one year after the date of filing of such completed 
application. The reduction of time for the Department's action on a PSD 
permit application from 240 days to 180 days thus still complies with 
federal requirements to act on such a permit within one year after the 
date of filing of a completed application.
---------------------------------------------------------------------------

    \7\ We are only reviewing and proposing action on the revisions 
to Part 72 in this action. The underlying regulations and program in 
Part 74 were not included, and are substantively not required to be 
evaluated, in the SIP revisions EPA is evaluating in this 
rulemaking.
---------------------------------------------------------------------------

    The April 11, 2002 SIP revision reduced the number of days within 
which the Department must take action upon a preconstruction permit 
application that is not subject to the PSD requirements of Part 74 from 
180 days to 90 days. This reduction applies to both Part 79 NNSR and 
Part 72 MNSR permits. NMED has been implementing this reduction in time 
for review of NNSR permit applications for over 10 years. NMED has 
issued zero (0) new NNSR permits between 1995 and 2012.\8\ Similarly, 
NMED has been implementing this reduction in time for the Department's 
review of Minor NSR permits for over 10 years. NMED has issued 
approximately 673 new MNSR permits between 1995 and 2012.\9\ As 
previously discussed, the entire state of New Mexico is designated 
attainment for all pollutants, with the exception of PM10 
and 1-hour ozone. The only area designated nonattainment for 
PM10 in New Mexico is Anthony, which is located in Dona Ana 
County, and the only area designated nonattainment for the 1-hour ozone 
NAAQS is Sunland Park, which is also located in Dona Ana County. We 
propose to find the reduction of time for the Department's review of 
NNSR and Minor NSR permit applications has therefore not interfered 
with attainment, reasonable further progress, or any other applicable 
requirement of the Act.
---------------------------------------------------------------------------

    \8\ Historical NNSR permit issuance data was provided via 
electronic email dated November 7, 2012, from Ted Schooley, NMED, to 
Ashley Mohr, EPA, Region 6.
    \9\ Historical new MNSR permit issuance data was provided via 
electronic mail dated November 2, 2012, from Kerwin Singleton, NMED, 
to Ashley Mohr, EPA, Region 6.
---------------------------------------------------------------------------

    Section 207 of the current SIP also specifies the Department shall 
hold a hearing within 90 days upon receipt of a timely petition for 
hearing by a person who participated in a permitting action before the 
Department and is adversely affected by such permitting action. The 
April 11, 2002 SIP revision changed the number of days by which the 
Department must hold a hearing from 90 days to 60 days. Because this 
change expedites the time frame within which the Department must hold a 
hearing upon receipt of a petition by a person

[[Page 71153]]

adversely impacted by a permitting action, this change is one that 
makes the current SIP more stringent. We propose to find the revisions 
to Section 207 comply with applicable federal requirements, including 
section 110(l) of the Act.
3. Submitted Revisions to Section 216--New Applicability Conditions and 
Requirements for Sources Located in Nonattainment Areas
    The current SIP-approved Part 72 contains potentially applicable 
requirements for sources located in Nonattainment areas within the 
Section 216 provisions. New Mexico proposed non-substantive changes to 
Section 216 in the April 11, 2002 SIP revision submittal that include 
updates to formatting within the rule provisions to be consistent with 
formatting updates that were made throughout Part 72 and the NMAC. New 
Mexico also proposed changes to this section of Part 72 as part of the 
November 2, 2006 SIP revision submittal. These changes to Section 216 
include the non-substantive changes to the rule language in Paragraphs 
(A)(1), (A)(2), and (B) to clarify that the requirements of this 
section are potentially applicable to both new sources and 
modifications of an existing source. This change does not change the 
applicability test or requirements of Section 216. The April 11, 2002 
SIP revision also contained proposed changes to add Paragraphs (A)(3) 
and (C) to Section 216. The addition of these two sections add a 
requirement for specific stationary sources (i.e., landfills and 
grandfathered sources) that were not previously required to obtain a 
preconstruction NSR permit to submit an application for a permit under 
Part 72, including submittal of a modeling analysis to demonstrate 
compliance with the NAAQS. The April 11, 2002 revisions also 
incorporate a requirement that if those newly permitted sources could 
not show compliance with the NAAQS, the source would be required to 
make changes to the facility that would result in an overall net air 
quality benefit. These proposed revisions to Section 216 result in a 
more stringent SIP than currently approved. Therefore, we propose to 
approve these revisions to Section 216 into the SIP by the 
determination that they will not affect the ability of the Section, or 
Part 72 overall, to meet the federal requirements for SIP-approved 
permitting plans.
4. Submittal of New Section 220--Minor NSR General Permits
    The current SIP-approved provisions of part 72 contain provisions 
for a Source Class Permit Streamlining program but issuance of such a 
permit required prior EPA approval. New Mexico adopted the new Section 
220, which contains the general preconstruction permitting program, and 
submitted this addition in the May 29, 1998 SIP submittal.\10\ In New 
Mexico's proposed general permitting program, the underlying provisions 
related to the general permitting program are adopted into the state's 
regulations and are submitted for approval into the New Mexico SIP by 
EPA. As a result, if Section 220 is approved by EPA into the SIP, the 
general permits that are developed and issued by the NMED in accordance 
with the procedures and requirements of Section 220 automatically 
become part of the SIP, and therefore, are federally enforceable on the 
basis that they meet the SIP-approved requirements of the general 
construction permits program in Section 220.
---------------------------------------------------------------------------

    \10\ The proposed general construction permitting program is 
similar to the Source Class Permit Streamlining program contained in 
20.2.72.300--20.2.72.399 NMAC of the current New Mexico SIP. The key 
difference is that under the current SIP-approved Source Class 
Permit Streamlining program, each source class permit must be 
approved by EPA into the SIP; whereas, under the proposed Section 
220 general construction permitting program, the underlying 
provisions for the permitting program are SIP approved and the 
individual general permits undergo public participation process 
similar to that required for a case-by-case NSR permit.
---------------------------------------------------------------------------

    Paragraph A of Section 220 includes the requirements related to the 
procedures to develop and issue a general permit. As required in 
20.2.72.220(A)(1) NMAC, a general construction permit developed by NMED 
must cover numerous similar sources. Sources allowed to register for 
coverage under a general permit must be homogenous in terms of 
operations, processes and emissions, subject to the same or 
substantially similar requirements, and not subject to case-by-case 
standards or requirements. These requirements satisfy the Federal 
requirement 40 CFR 51.160(a) that the SIP has legally enforceable 
procedures that enable the NMED to determine whether construction or 
modification will result in a violation of a control strategy or 
interfere with attainment or maintenance of a national standard in New 
Mexico or a surrounding state. Section 20.2.72.220(A)(2) NMAC requires 
each general permit to describe which sources may qualify to register 
under the general permit, which satisfies the requirement of 40 CFR 
160(e) which provides that the SIP must identify the types and sizes of 
facilities that will be subject to review. NMED has indicated in the 
SIP submittal that the permits developed and issued under the general 
construction permitting program are for Minor NSR sources.\11\ 40 CFR 
51.160 requires that the Minor NSR SIP revision submittal be 
enforceable. In particular, 40 CFR 51.160(a) requires that the SIP 
revision be enforceable in order to ensure that the issuance of the 
Minor NSR permit will not cause or contribute to a violation of any SIP 
control strategy and will not interfere with attainment and maintenance 
of the NAAQS. The September 23, 1987, Memorandum from J. Craig Potter, 
Assistant Administrator for Air and Radiation, and Thomas L. Adams Jr., 
Assistant Administrator for Enforcement and Compliance Monitoring, 
entitled ``Review of State Implementation Plans and Revisions for 
Enforceability and Legal Sufficiency'' provides EPA's guidance for 
assessing whether a SIP revision submittal is sufficiently enforceable. 
We find that the new general construction permitting program meets the 
requirements of section 40 CFR 51.160(a), which requires that SIP 
revision submittals be enforceable. The submitted regulation 
specifically requires that a general permit include monitoring, record 
keeping and reporting (MRR) requirements appropriate to the source and 
sufficient to ensure compliance with the general construction permit. 
At a minimum, the general permit shall specify where the records shall 
be maintained, how long the records shall be retained and that all 
records or reports shall be made available upon request by the 
Department. The general permit also must contain sufficient terms and 
conditions to ensure that all sources operating under a general permit 
will meet all applicable requirements under the Federal Clean Air Act, 
e.g., NSPS, NESHAPS, and MACT, and all requirements of the SIP. Such a 
general permit is not allowed to cause or contribute to air contaminant 
levels in excess of any National or New Mexico Ambient Air Quality 
Standard. For these reasons, EPA finds that the submitted general 
construction permitting program will ensure attainment and maintenance 
of the NAAQS and will prevent violations of any of the New Mexico SIP's 
control strategies. Under this submitted new permitting program, the 
State is able to determine if there will be an adverse impact on air 
quality.
---------------------------------------------------------------------------

    \11\ Pages 77 and 78 of hearing transcripts for October 17, 1997 
Environmental Improvement Board Public Hearing.
---------------------------------------------------------------------------

    EPA has recognized, for certain classes of sources, that it is 
appropriate for states to establish enforceable

[[Page 71154]]

emission limits that serve to limit potential to emit through 
exclusionary rules that apply to certain source categories. See, 
Memorandum from D. Kent Berry, Acting Director, Air Quality Management 
Division, Office of Air Quality Planning and Standards (OAQPS) entitled 
``Guidance for State Rules for Optional Federally-Enforceable Emissions 
Limits Based on Volatile Organic Compound Use,'' dated October 15, 
1993; See also, Memorandum from John Seitz, Director, OAQPS entitled 
``Approaches to Creating Federally-Enforceable Emission Limits,'' dated 
November 3, 1993. EPA also issued a guidance memorandum that provides 
guidance for addressing the minor source status under the Act for 
lower-emitting sources in eight source categories. See, April 14, 1998, 
Memorandum entitled, ``Potential to Emit (PTE) Guidance for Specific 
Source Categories'' (hereinafter the 1998 memoranda). It provides 
technical information useful in devising practicable enforceable 
potential to emit for small sources and identifies sources that are 
``true minors.'' Although not an exclusionary rule, the practicable 
enforceability criteria in the guidance memoranda serve as a way to 
measure whether the submitted general construction permitting program 
is practicably enforceable and therefore can ensure that issuance of 
the Minor general NSR permit will not cause or contribute to a 
violation of any SIP control strategy and will not interfere with 
attainment and maintenance of the NAAQS. The submitted program clearly 
identifies the category of sources that qualify for coverage. The 
submitted program provides that a source notify the State of its 
coverage under the program by submitting a complete application to 
register. The NMED shall grant registration to a source only if it 
submits a complete application and meets the terms and conditions of 
the general permit. The NMED may grant or deny an application.
    Based on the requirements contained in Section 220 and further 
clarification provided by NMED, a general permit could not be developed 
for use by a Major NSR source.\12\ The state's implementation of the 
general permitting program since the state adopted the Section 220 
provisions is consistent with the fact that the general permitting 
program is for Minor NSR sources only. Each of the general construction 
permits that New Mexico has issued in accordance with Section 220 
includes facility-wide annual emission limits that are less than PSD 
permitting thresholds. In addition, Paragraph A of Section 220 includes 
provisions that specify what requirements must be met for a general 
permit to be issued under Section 220, including requirements that the 
permit contain sufficient terms and conditions, along with sufficient 
monitoring, record keeping, and reporting requirements, to assure that 
sources authorized via the general construction permit will meet all 
applicable requirements under the Act, including PSD and NNSR. Since 
these major NSR permitting programs require source-specific evaluations 
as part of the permitting process, a general permit could not be 
developed to authorize a major NSR source. The general permitting 
program was adopted as a Minor NSR preconstruction permitting program, 
and NMED's historical implementation since adoption of Section 220 is 
consistent with its intended applicability to Minor NSR sources only.
---------------------------------------------------------------------------

    \12\ Clarification of Intent for Section 220 of 20.2.72 NMAC--
Construction Permits letter dated September 19, 2012 from Richard L. 
Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate 
Director for Air Programs, EPA, Region 6.
---------------------------------------------------------------------------

    The provisions contained in Paragraph A of Section 220 also address 
public notice requirements for issued general permits. 
20.2.72.220(A)(1) NMAC requires that prior to issuance, each general 
construction permit must undergo the same public notice as that 
required for case-by-case permits in Section 206. Section 206 public 
notice requirements are discussed in more detail in Section III.B.5 of 
this preamble. Paragraph B of Section 220 contains procedural 
requirements that must be met if NMED wishes to modify an existing 
general construction permit. These modifications are required to 
undergo an additional public notice and must include a transition 
schedule that addresses how and when sources that are registered under 
the existing general construction permit will be transitioned to the 
requirements contained in the modified general construction permit.
    Together with Paragraph A, we propose to find the provisions of 
Paragraph B contain requirements that satisfy the requirements 
contained in 40 CFR 51.160, 51.161, 51.163 related to a permitting 
program having legally enforceable procedures, making information 
publicly available, and having administrative procedures in place to 
operate the program consistent with the previous requirements. The 
addition of Section 220 also does not interfere with the Part 72 
construction permits program ability to meet requirements in 40 CFR 
51.162 and 51.164 that are applicable to Minor NSR programs, since the 
addition does not impact the identification of the responsible agency 
or the stack height procedures.
    Because the revisions to incorporate the general permitting program 
under Section 220 would add an alternative Minor NSR permitting 
approach to the preconstruction permitting program, these proposed 
revisions must also be evaluated to determine if they will interfere 
with attainment or reasonable further progress or any other applicable 
requirement of the Act. This evaluation is included in the following 
section of this preamble.
a. 110(l) Analysis for Section 220
    The provisions in Section 220 establish a general preconstruction 
permitting program that allows NMED to develop and issue general 
permits. Minor NSR sources may seek authorization under these general 
permits in lieu of case-by-case preconstruction permits if they meet 
the requirements of the general permitting program and the specific 
requirements of the general construction permit, itself. As required by 
the provisions of Section 220, a general construction permit issued 
under Section 220 must contain terms and conditions that assure that 
sources authorized via the general construction permit will meet all 
applicable requirements under the federal act (e.g., PSD, NSPS, NESHAP) 
and will not cause or contribute to an exceedance of the NAAQS.\13\ As 
stated in the May 29, 1998 SIP submittal supporting documentation, a 
general construction permit will contain more conservative permit 
conditions and more stringent requirements since the general permit has 
to be protective of all applicable state and federal requirements for 
each source that may seek authorization via the general construction 
permit. Therefore, the general construction permits developed and 
issued by NMED are likely to contain more stringent permit conditions 
for a given source than would be included in a case-by-case permit 
issued for that same source.
---------------------------------------------------------------------------

    \13\ 20.2.72.220(A)(2)(c)(1) NMAC.
---------------------------------------------------------------------------

    Section 220 also identifies procedures for existing general 
construction permits to be modified by NMED. This modification 
procedure allows NMED to update the general permit conditions if they 
determine that more stringent conditions are necessary or to account 
for new state or federal requirements. Under the general 
preconstruction permitting program established in Section 220, each 
source registration under a general permit requires review and approval 
by NMED prior to

[[Page 71155]]

construction, as well as, a separate public notice of each source 
registration. The public notice provisions require the source to notify 
the public that the source is seeking authorization under a general 
construction permit. NMED has been utilizing the general 
preconstruction permitting program based on the provisions in Section 
220 since the state adoption of those provisions in 1998 without any 
indication that the implementation of this Minor NSR program has 
interfered with attainment or reasonable further progress.
    Based on the reasons discussed above, we do not believe that the 
addition of the general preconstruction permitting provisions contained 
in Section 220 will interfere with attainment or reasonable further 
progress or any other applicable requirement of the Act. Our evaluation 
of the SIP revision submittals related to Section 220, which are under 
review in this action, demonstrates compliance with section 110(l) of 
the CAA and provides further basis for proposed approval of this SIP 
revision.
5. Submitted Revisions to Section 206--Public Notice and Participation 
for Minor NSR
    Prior to the revisions contained in the April 11, 2002 SIP 
submittal, NMED under existing SIP-approved Section 206 was required to 
publish in a newspaper of general circulation in the area closest to 
the location of the source public notice of the permit application 
submitted under part 72 and the Department's preliminary determination 
for a single 45-day comment period. The proposed revisions to Section 
206 revise the public notice procedures so that it becomes a two-step 
process, whereas the current SIP public notice procedure is a one-step 
process. Under the submitted Section 206 revised provisions, NMED 
publishes in a newspaper of general circulation in the area closest to 
the location of the source public notice of the permit application. The 
public would then have 30 days to express written interest in the 
permit application, whereas under the current SIP-approved provisions 
the public has 45 days to comment on the permit application and the 
Department's preliminary determination.
    If NMED does not receive any written expressions of interest from 
the public on the permit application during the 30-day public notice of 
the permit application, the Department will take action to issue or 
deny the permit. However, if any person expresses interest in writing 
in the permit application during the 30-day public notice period, NMED 
shall notify these interested persons of the date and location that the 
Department's Analysis was or will be available. These interested people 
and any other member of the public then have 30 days to submit written 
comments on the Department's Analysis. The NMED cannot issue the permit 
until at least 30 days after the Department's Analysis is available for 
review. As clarified in the Secretary's November 7, 2012 letter, the 
second 30-day period is triggered for members of the public to submit 
written comments on the Department's Analysis, when the State posts 
notice of the availability of the Analysis onto its Web site.\14\
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    \14\ Public Notice for Minor Source New Source Review letter 
dated November 7, 2012, from Dave Martin, Cabinet Secretary, NMED, 
to Mr. Ron Curry, Regional Administrator, EPA, Region 6.
---------------------------------------------------------------------------

    Additionally, New Mexico has submitted a SIP revision to the 
language within 20.2.72.206(A)(7) NMAC requiring public notices to be 
sent to the Region 6 EPA office, adding language directing public 
notices be sent if requested by EPA. 40 CFR 51.161(d) requires that a 
state send a copy of all public notices to EPA via the Regional Office, 
without qualifying whether a request by EPA is necessary. To ensure 
that all public notices are received by EPA pursuant to 40 CFR 
51.161(d), Region 6 has formally requested copies of each public notice 
be provided to EPA.\15\ Therefore, NMED will provide a copy of all 
public notices for construction permits to EPA, and we propose to 
approve 20.2.72.206(A)(7) NMAC as consistent with the federal 
requirement in 40.CFR 51.161(d).
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    \15\ Copies of public notices were requested via letter from Mr. 
Thomas Diggs, Associate Director for Air Programs, EPA, Region 6 to 
Mr. Richard Goodyear, PE, Bureau Chief, NMED on September 7, 2012. 
NMED responded to EPA's request via letter dated September 13, 2012 
from Mr. Goodyear, NMED, to Mr. Diggs, EPA, and agreed to provide 
copies of the notices to EPA. Copies of these letters and all others 
referenced in this proposal are in the docket for this rulemaking.
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a. 110(l) Analysis for Section 206
    As noted, the proposed revisions to Section 206 do result in a 
reduction in the length of the public notice period from 45 days to 30 
days. This public notice period, while reduced from the current SIP-
approved requirements, is equivalent to the federal public 
participation minimum public comment period requirements, which 
requires a 30-day period for submittal of public comment. The proposed 
revisions also require a person to comment in writing on the permit 
application before any member of the public can comment on the 
Department's Analysis. We believe that this is a minimal burden placed 
on the public to express written interest on the permit application in 
order to have the opportunity to comment on the Department's Analysis. 
This additional requirement does not undermine federal public 
participation requirements. Also, the change from 45 days to 30 days 
for public review and comment, while a reduction, also meets federal 
public participation minimum public comment period requirements. 
Therefore, we propose to approve these revisions into the SIP by 
determining that they will not interfere with the ability of the New 
Mexico SIP to meet the applicable federal public participation 
requirements, nor will they violate the requirements of CAA section 
110(l).
6. Submittal of New Section 219--Permit Revisions for Minor NSR
    The current SIP-approved Permit Revisions provisions under Section 
202 include general requirements for sources seeking permit revisions 
to submit a revision request to NMED, which was to include a 
description of the proposed changes and the reasons for those changes. 
The current SIP requires that permit revisions with associated 
increases in permitted emission limits are processed in accordance with 
public notice, review, and hearing procedures contained in Sections 206 
and 207 of Part 72. As part of the submitted May 29, 1998 SIP 
revisions, the Permit Revisions provisions were moved to Section 219 
and were revised to include three different tiers of revisions: 
Administrative, Technical, and Significant. These Permit Revisions 
provisions were subsequently revised and submitted in the April 11, 
2002 and April 25, 2005 SIP submittals. The tiered permit revision 
process established in the May 29, 1998 SIP revision submittal was 
developed by New Mexico through a permitting Task Force that consisted 
of NMED staff and members of the public, including representatives from 
industry and environmental groups. The Task Force identified types of 
Minor NSR permit revisions that should qualify for streamlined 
permitting based on their anticipated negligible or insignificant 
environmental impacts and established the proposed tiered permit 
revisions process for Minor NSR permit revisions.
    The public participation requirements for each of the three new 
types of permit revisions were also changed in the May 29, 1998 SIP 
revision submittal. The associated public notice requirements are one 
of the main differences between the separate tiers of permit revisions 
included in Section 219. The Federal requirements for Minor NSR permit

[[Page 71156]]

applications and public notice requirements are at 40 CFR 51.160 and 
161. These requirements establish the minimum requirements for 
approvability of a state's Minor NSR SIP, which a state develops to 
prevent construction and modification of stationary sources from 
interfering with an area's ability to achieve compliance with a NAAQS.
    These requirements generally require 30-day public review for all 
sources subject to the Minor NSR; however, these requirements also 
allow a State to identify the types and sizes of facilities, buildings, 
structures, or installations, which will require full preconstruction 
review by justifying the basis for the State's determination of the 
proper scope of its program.\16\ Importantly, our decision to approve a 
State's scope of its Minor NSR program must consider the individual air 
quality concerns of each jurisdiction, and therefore will vary from 
state to state.
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    \16\ For example, under the federal Tribal NSR regulations, EPA 
did not require permits for sources with emissions below ``de 
minimis'' levels, and for sources in ``insignificant source 
categories''. 76 FR at 38755. In sum, under these Tribal NSR 
regulations, some sources are not required to obtain permits, and 
have no public notice requirements.
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    New Mexico's submitted rules create tiered, public notice 
requirements for the three types of permit revisions. New Mexico 
justified its approach for permit revision applications using de 
minimis principles like those established in Alabama Power.\17\ A 
Significant permit revision will have the same public notice 
requirements as an application for a new minor source. The submitted 
New Mexico rules generally provide that all new Minor NSR permit 
applications and all Minor NSR Significant permit revision applications 
will go through public notice consistent with federal requirements at 
40 CFR 51.160 and 51.161. Under the submitted rules, Administrative 
permit revisions do not have any associated public notice requirements. 
Meanwhile, the submitted Technical permit revisions require that the 
applicant conduct a reduced public notice, as compared with the full 
notice required for new Minor NSR permits and Significant permit 
revisions. EPA recognizes a State's ability to tailor the scope of its 
Minor NSR program as necessary to achieve and maintain the NAAQS. As 
documented in the State's SIP revision submittal and subsequent 
submission of supporting information, New Mexico justified the scope of 
its regulatory program, and thus the permit applications for which full 
public review is necessary, using de minimis principles like those 
established in Alabama Power to identify permit revisions that are not 
environmentally significant.
---------------------------------------------------------------------------

    \17\ See Ala. Power Co. v. Costle, 636 F.2d 323 (DCCir. 1979).
---------------------------------------------------------------------------

    EPA's evaluation of the environmental significance of each permit 
revision tier and its associated public participation requirements are 
discussed in the following subsections and the TSD. The following 
subsections and TSD also discuss the State's analysis and supporting 
documentation regarding how the permitting actions qualifying as 
Administrative and Technical permit revisions were chosen and why the 
Department finds that these permit actions qualify for a more 
streamlined permitting process because of their environmental 
insignificance.
a. Administrative Permit Revisions
    NMED established Administrative permit revisions that are limited 
to those actions that are listed below that do not have any associated 
increases in permitted emissions, and a permittee may obtain such a 
revision for an existing source without undergoing preconstruction 
permitting requirements under Part 72. Administrative permit revisions 
do not have applicable filing or permit fees under Part 75 and are also 
not subject to the public notice requirements contained in either 
Section 203 or Section 206. Administrative permit revisions are limited 
to the following permit actions that are considered to be 
administrative changes:
     Correction of typographical errors,
     Change in administrative information (e.g., change in 
owner, facility address, or contact phone number),
     Incorporation of the retirement of permitted source or the 
closing of a facility,
     Incorporation of the deletion of a proposed source(s) that 
was not constructed or will not be built, or
     Incorporation of Section 202 Paragraph B exempted 
sources.\18\
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    \18\ The incorporation of the Paragraph B exempted sources into 
an existing permit is an administrative action and does not change 
the exempt status of these sources. These Section 202 Paragraph B 
exempt sources remain exempt from Minor NSR permitting requirements 
and their incorporation into an existing permit does not result in 
an increase in permitted emission rates or change a term or 
condition of the existing permit.
---------------------------------------------------------------------------

    Because these permit revisions do not have any associated increases 
in permitted emissions, they would not be required to undergo the 
preconstruction permitting requirements under Part 72 to receive a 
permit revision. Under the new submitted SIP rule, Administrative 
permit revisions now require a certified written notification of the 
revision be submitted by the applicant to NMED. Administrative 
revisions become effective upon receipt of the notification by NMED. 
NMED is not required to reissue the permit to incorporate an 
Administrative permit revision. The revised SIP rule is more stringent 
than the current SIP with respect to requiring certified written 
notification of the Administrative revision to be submitted by the 
applicant to NMED.
    Under the proposed SIP revisions, Administrative permit revisions 
are exempt from all Minor NSR public participation requirements under 
Part 72. As documented in the SIP revision submittals, the permit 
revisions allowed under the Administrative revision provisions are 
limited to those permit changes that are administrative in nature and 
do not result in a change to any permit term or condition and do not 
have any associated increases in permitted emission rates. Therefore, 
the Administrative permit revisions are truly de minimis in nature, and 
we propose to find that New Mexico provided an adequate demonstration 
and justification to show that their proposed Administrative permit 
revisions provisions meet 40 CFR 51.160(e) and 161.
b. Technical Permit Revisions
    NMED also established Technical permit revisions in the proposed 
SIP revisions that include the following changes to a permit:
     Incorporate changes to monitoring, recordkeeping, or 
reporting requirements that do not reduce the enforceability of the 
permit,
     Incorporate the addition of permit conditions on sources 
that existed on August 31, 1972, and have been operated regularly 
since,
     Like kind replacement of permitted equipment that meets 
the specific requirements listed in 20.2.72.219(B)(1)(d) NMAC,
     Incorporate terms and conditions in the permit for the 
purpose of reducing the potential emission rate of a unit or source 
(e.g., cap on hours or throughputs),
     Incorporate addition of new equipment with potential 
emission rate no more than 1 pound per hour (4.38 tons per year, 
assuming continuous operation for 8,760 hours per year) for any NAAQS 
pollutant or any VOC,
     Revision of permitted emission limit based on initial 
compliance testing results that meets the specific requirements listed 
in 20.2.72.219(B)(1)(e) NMAC, and
     Incorporate the addition of, or substitution of, a 
different type of air

[[Page 71157]]

pollution control equipment with an increase in potential emission rate 
no more than 1 pound per hour (4.38 tons per year, assuming continuous 
operation for 8,760 hours per year) for any NAAQS pollutant or total 
VOCs.
    The Technical permit revisions established under the proposed New 
Mexico SIP revisions are not required to meet the full public 
participation requirements under Part 72.\19\ Under the new submitted 
Section 219, Technical permit revisions, like new permit applications 
and Significant permit revision applications, the applicant still is 
required to publish a newspaper notice of general circulation in each 
county in which the source is proposing to construct or modify. This 
newspaper notice shall contain the following:
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    \19\ Technical permit revisions are not subject to public 
notification requirements under Paragraphs 1, 4 and 5 of Subsection 
B of 20.2.72.203 NMAC, and 20.2.72.206 NMAC. However, applicant's 
requesting a Technical permit revision must still meet the public 
notice requirements contained in Paragraphs 2 and 3 of 20.2.203 
NMAC.
---------------------------------------------------------------------------

    1. The applicant's name and address, together with the names and 
addresses of all owners or operators of the facility or proposed 
facility;
    2. The actual or estimated date that the application was or will be 
submitted to the Department;
    3. The exact location of the facility or proposed facility;
    4. A description of the process or change for which a permit is 
sought, including an estimate of the maximum quantities of any 
regulated air contaminant the source will emit after proposed 
construction is complete or permit is issued;
    5. The maximum and standard operating schedules of the facility 
after completion of proposed construction or permit issuance; and
    6. The current address of the Department to which comments and 
inquiries may be directed.
    The applicant also is still required to provide certified mail 
notices of the proposed Technical permit revision to nearby 
municipalities, Indian tribes, and counties.\20\ Public participation 
requirements for Technical permit revisions also allow for NMED to hold 
a public meeting in response to significant public interest in the 
proposed permit revision. What is no longer required is that the 
applicant (1) provides certified mail notices to owners of all 
properties within specified distances; (2) post signs of the notice in 
four publicly accessible places; or (3) submit a public service 
announcement to at least one radio of TV station that serves the area 
where the source is located. NMED is not required to publish a 
newspaper notice that includes its preliminary intent to issue the 
permit if the construction or modification requested in the application 
will comply with air quality requirements, including ambient standards.
---------------------------------------------------------------------------

    \20\ 20.2.72,203(B)(1) and (2) NMAC require that the applicant's 
public notice be: (1) Provided by certified mail, to the owners of 
record, as shown in the most recent property tax schedule, of all 
properties: (a) Within one hundred (100) feet of the property on 
which the facility is located or proposed to be located, if the 
facility is or is proposed to be located in a Class A or Class H 
county or a municipality with a population of more than two thousand 
five hundred (2500) persons; or (b) within one-half (\1/2\) mile of 
the property on which the facility is located or is proposed to be 
located if the facility is or will be in a county or municipality 
other than those specified in Sub-paragraph (a) of Paragraph 1 of 
Subsection B of 20.2.72.203 NMAC; and (2) provided by certified mail 
to all municipalities and counties in which the facility is or will 
be located and to all municipalities, Indian tribes, and counties 
within a ten (10) mile radius of the property on which the facility 
is proposed to be constructed or operated.
---------------------------------------------------------------------------

    The applicant is required to file a certified written notification 
of the proposed Technical revision to NMED. NMED has 30 days after the 
receipt of a complete application to approve or deny the Technical 
permit revision or inform the applicant that the Technical permit 
revision request must be ``bumped up'' and resubmitted as a Significant 
permit revision requiring the revision to undergo full public 
participation. The Technical permit revision becomes effective upon 
written approval from NMED, and NMED is required to attach the 
Technical permit revision to the existing permit.
    While the Technical permit revisions are exempt from a portion of 
the public participation requirements, within the scope of New Mexico's 
revised rules, the thresholds do not affect any part of the technical 
review of these permit revision applications, including a requirement 
that the applicant demonstrate that the proposed modification will not 
result in allowable emissions that could contribute to an exceedance of 
the NAAQS.
    New Mexico determined that revisions allowed under the Technical 
permit revisions provisions were limited to permit revisions that 
either have no associated increases in emissions or associated 
emissions increases that are insignificant. The first four permit 
actions listed previously that qualify as Technical permit revisions do 
not have any associated increases in permitted emission rates. 
Therefore, similar to the Administrative permit revisions, these four 
types of Technical permit revisions are truly de minimis in nature. 
Therefore, similar to our determination for Administrative permit 
revisions, we propose to find that New Mexico provided an adequate 
demonstration and justification to show that these four types of 
Technical permit revisions provisions that are excluded from the full 
public participation requirements are environmentally insignificant and 
therefore satisfy the provisions of 40 CFR 51.160(e) and 161. The three 
remaining types of Technical permit revisions are limited to permit 
revisions that are expected to be environmentally insignificant, either 
because of the limits placed on the associated emissions increases or 
because the limited subcategory of permit revisions, which represent a 
small subset of the permitting universe that are allowed by the 
Technical revisions. Two of the remaining Technical revisions are 
limited to permit actions that have associated increases in permitted 
emission rates less than 1 pound per hour, which equates to 4.38 tons 
per year assuming continuous operation. As documented in the SIP 
revision submittal, an emissions increase of this small magnitude is 
not expected to result in a significant environmental impact. The last 
Technical permit revision with associated increases in permitted 
emissions allows an applicant to request up to a 10 percent increase in 
permitted emission rates as a result of initial compliance testing. 
Such adjustments in permitted emission rates are limited to very 
specific permit actions, and the applicant is required to, as part of 
the Technical permit revision request, supply a demonstration that the 
requested increase will not trigger additional requirements under any 
Part of the NMAC, including Part 74--PSD, and will not result in 
allowable emissions that could contribute to the violation of any 
NAAQS. The provisions in Section 219 result in the scope of permit 
revisions that would qualify for the 10 percent increase allowance to 
be limited to a small portion of permitting actions. New Mexico has 
reviewed the 73 Technical permit revisions issued since 2009, and none 
of these Technical permit revisions were issued under the 10 percent 
increase allowance provisions contained in 20.2.72.219(B)(1)(e) 
NMAC.\21\ Therefore, based on the insignificant environmental impacts 
associated with the Technical permit revisions found in 
20.2.72.219(B)(1)(b) NMAC and 20.2.72.219(B)(1)(f) NMAC and the

[[Page 71158]]

limited scope of permitting actions allowed under the Technical 
revision found in 20.2.72.219(B)(1)(e) NMAC, we propose to find that 
New Mexico provided an adequate demonstration and justification to show 
that exclusion of these remaining three types of Technical permit 
revisions provisions from the full public participation requirements 
are environmentally insignificant and therefore satisfy the provisions 
of 40 CFR 51.160(e) and 161.
---------------------------------------------------------------------------

    \21\ Additional historical Technical permit revisions data was 
provided via electronic mail dated November 2, 2012, from Kerwin 
Singleton, NMED, to Ashley Mohr, EPA, Region 6.
---------------------------------------------------------------------------

c. 110(l) Analysis for Technical Revisions
    As noted, the proposed revisions to add Section 219 and establish a 
tiered permit revisions approach for Minor NSR modifications result in 
a reduction of public notice requirement for a portion of the 
modifications listed as Technical permit revisions. Similar to the 
Administrative permit revisions, most of the permit actions that 
qualify as Technical permit revisions do not have associated increases 
in permitted emission limits. Under the new provisions found in Section 
219, these Technical permit revisions are required to conduct a reduced 
public notice that requires the applicant provide notice via certified 
mail to specific persons and via a published newspaper notice. This 
public notice is reduced compared to the public notice required for 
Significant permit revisions, but is more stringent than the current 
SIP requirements for revisions with no associated increases in 
permitted emissions, which include a requirement for public notice only 
for those permit revisions that include an increase in a permitted 
emission limit. Therefore, for those Technical permit revisions which 
do not have associated increases in permitted emission limits, the 
proposed revisions to the New Mexico SIP result in additional public 
notice requirements that are not included in the current SIP.
    The three permit actions identified as Technical permit revisions 
in 20.2.72.219(B)(1)(b) NMAC, 20.2.72.219(B)(1)(e) NMAC, and 
20.2.72.219(B)(1)(f) NMAC do include associated increases in permitted 
emission limits. Two of these permit revisions allow only for small 
increases in permitted emission rates (1 pound per hour, which 
corresponds to 4.38 tons per year assuming continuous operation). The 
remaining permit action that qualifies as a Technical permit revision 
having an associated increase in emission limitations described in 
20.2.72.219(B)(1)(e) NMAC has other requirements that must be met by 
the permit revision action that ensure that the revision will not 
contribute to a NAAQS violation. For example, the applicant must 
demonstrate that the increase in permit emissions limits being proposed 
as a result of stack testing will not result in a new allowable 
emission limit in the permit that would contribute to a violation of 
the NAAQS. These revisions, like all other Technical permit revisions, 
will undergo review by NMED during which the Department will confirm 
that the revision meets the applicable requirements of Section 219 to 
qualify for a Technical permit revision and determine if the revision 
should be issued, denied, or ``bumped up'' to a Significant permit 
revision. Since Technical permit revisions have a required public 
notice component, the public will be notified of the proposed revision 
and will have the opportunity to request a public meeting if they have 
significant questions or concerns regarding the proposed permit 
revision.
    Since adopting the tiered permit revisions approach in 1998, New 
Mexico has issued 2,055 Administrative permit revisions, 234 Technical 
permit revisions, and 482 Significant permit revisions in accordance 
with the Section 219 provisions. NMED's implementation of the tiered 
permit revision program, which allows for reduced public notice for 
Administrative and Technical revisions, has not resulted in a measured 
exceedance of the NAAQS and has not shown any interference with 
reasonable further progress in the state.\22\ Furthermore, a review of 
the Technical permit revisions issued in the last three calendar years 
(2009-2011) shows that the total annual increases in permitted 
emissions is less than 7 tons per year for all NAAQS pollutants for 
each of the years.\23\ In fact, most of the pollutants show no change 
or an overall decrease in annual emissions as a result of the Technical 
permit revisions issued during a given calendar year. This historical 
look back of the New Mexico preconstruction permitting program is 
consistent with our expectation that the tiered permit revision program 
and associated tiered public notice requirements will not have adverse 
impacts on air quality that interfere with attainment or reasonable 
further progress or any other applicable requirement of the Act.
---------------------------------------------------------------------------

    \22\ Historical permit revisions data provided via Clarification 
of Exemptions in Section 202 of 20.2.72 NMAC--Construction Permits 
letter dated September 19, 2012 from Richard L. Goodyear, PE, Bureau 
Chief, NMED to Mr. Thomas Diggs, Associate Director for Air 
Programs, EPA, Region 6.
    \23\ Additional historical Technical permit revisions data was 
provided via electronic mail dated November 2, 2012, from Kerwin 
Singleton, NMED, to Ashley Mohr, EPA, Region 6.
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    Based on the reasons discussed above, we do not believe that the 
addition of Technical permit revisions to the tiered approach in 
Section 219, will interfere with attainment or reasonable further 
progress or any other applicable requirement of the Act. We believe 
that New Mexico provided a demonstration that adequately justifies the 
scope of activities that require full review with public participation, 
because it excludes Technical permit revisions that have associated 
environmental impacts that are either de minimis or environmentally 
insignificant, using de minimis principles like those established in 
Alabama Power to identify permit revisions that are not environmentally 
significant. Our evaluation of the SIP revision submittals related to 
Section 219, which are under review in this action, demonstrates 
compliance with section 110(l) of the CAA and provides further basis 
for proposed approval of this SIP revision.
d. Significant Permit Revisions
    Significant revisions include those modifications made at a 
stationary source that either prior to or following the modification 
would result in a facility-wide potential emission rate for any 
regulated air contaminant greater than 10 pounds per hour or 25 tons 
per year, given that the modification does not qualify as a Paragraph 
A, B, or C exemption under Section 202 or an Administrative or 
Technical Revision under Section 219. Significant permit revisions must 
follow the same permitting procedures and meet the same permitting 
requirements (e.g., payment of applicable fees, completion of public 
notice) as those required for newly issued Minor NSR permits. The 
permitting requirements for Significant permit revisions are no more or 
less stringent than those required for permit revisions with an 
associated increase in permitted emission rates under the currently 
approved SIP. Significant permit revisions are subject to the same 
submitted public participation requirements as those required for 
initial Minor NSR permits, that we are proposing to approve. Because 
the associated public participation requirements do not undermine the 
SIP revision's ability to meet section 110(l) or any other applicable 
requirement of the Act, we propose to approve Significant permit 
revisions under Section 219 into the New Mexico SIP.

[[Page 71159]]

7. Submitted Revisions to Section 202--New Exemptions for de Minimis 
Sources and Activities From Minor NSR Permitting Requirements
    As required by 40 CFR 51.160(e), a NSR program, including a Minor 
NSR permitting program, must have procedures in place that identify the 
``types and sizes of facilities, buildings, structures, or 
installations which will be subject to review.'' As part of the current 
SIP-approved Part 72 regulations, all stationary sources with emissions 
in excess of the following emissions thresholds are required to obtain 
a construction permit: (1) Any person constructing a stationary source 
which has a potential emission rate greater than 10 pounds per hour or 
25 tons per year of any regulated air contaminant for which there is a 
National or New Mexico Ambient Air Quality Standard; (2) Any person 
modifying a stationary source when all of the pollutant emitting 
activities at the entire facility, either prior to or following the 
modification, emit a regulated air contaminant for which there is a 
National or New Mexico Ambient Air Quality Standard with a potential 
emission rate greater than 10 pounds per hour or 25 tons per year and 
the regulated air contaminant is emitted as a result of the 
modification; and (3) Any person constructing a stationary source which 
has a potential emission rate for lead greater than 5 tons per year or 
modifying a stationary source which either prior to or following the 
modification has a potential emission rate for lead greater than 5 tons 
per year.\24\
---------------------------------------------------------------------------

    \24\ The New Mexico SIP at 20.2.72.200(A)(1), (2), and (5) 
specify the emissions thresholds that trigger minor preconstruction 
permitting requirements.
---------------------------------------------------------------------------

    Therefore, the current New Mexico SIP does exempt constructed 
stationary sources and modifications to an existing stationary source 
with potential emissions below these thresholds from the Minor NSR 
permitting requirements. These emissions based exemptions are the only 
type of exemptions contained in the current SIP for the Minor NSR 
permitting program.
    As part of the May 29, 1998 SIP submittal, Paragraphs A, B, and C 
were added to Section 202 containing new exemptions from the Minor NSR 
permitting requirements in Part 72. These newly proposed exemptions are 
emission source or activity based exemptions. The provisions contained 
in these new Paragraphs include a listing of the specific types and 
sizes, where applicable, of sources and activities that would be exempt 
from all or a portion of the preconstruction permitting requirements. 
Therefore, the sources and activities included in Paragraphs A, B, and 
C can be commenced or changed without obtaining a Minor NSR permit or 
Minor NSR permit revision. The following subsections describe the 
sources and emission activities listed in each Paragraph and the 
permitting requirements they are exempted from in further detail. 
Because these Paragraphs add source and activity specific exemptions 
from preconstruction permitting beyond the exemptions evaluated for and 
included in the current New Mexico SIP, the following subsections also 
evaluate each new Paragraph to determine if the proposed exemptions 
will interfere with attainment or reasonable further progress or any 
other applicable requirement of the Act pursuant to section 110(l).
a. Paragraph A Exemptions
    Paragraph A includes a list of exempted emission sources and 
activities EPA has historically approved into state SIPs, finding them 
to have de minimis environmental impacts due to their trivial, 
insignificant nature.\25\ These emission sources and activities 
include, but are not limited to, those relating to office activities 
such as photocopying, residential activity such as fireplaces and 
barbecue cookers, food service such as cafeteria activity, and 
maintenance of ground activities such as lawn care and pest control 
(see our TSD for a complete list of the Paragraph A exemptions).
---------------------------------------------------------------------------

    \25\ See e.g. Montana Air Quality Permits--General Exclusions 
(76 FR 40237, July 8, 2011), West Virginia Table 45-13B De Minimis 
Sources (72 FR 5932, February 8, 2007).
---------------------------------------------------------------------------

b. 110(l) Analysis for Paragraph A Exemptions
    NMED provided a summary of anticipated impacts on ambient air 
quality for the emission sources and activities included in the 
Paragraph A exemptions. For all sources on this list, NMED indicated 
that impacts are expected to be non-existent, negligible/insignificant, 
or less than emissions from other sources that are currently 
unregulated.\26\ NMED's determination of anticipated impacts for these 
sources is consistent with our understanding of the environmental 
insignificance of emissions anticipated from these small emission 
sources and activities. In addition, NMED has been carrying out the 
MNSR permitting program based on the codification of their permitting 
policy since the adoption of the Paragraph A permit exemptions in 1998 
without any indication that these permit exemptions have interfered 
with attainment or reasonable further progress. Specifically, the 
implementation of the Paragraph A exemptions has not resulted in a 
measured exceedance of the NAAQS. The historical monitoring data is 
consistent with the anticipated impacts from these types of emission 
sources and activities being environmentally insignificant along with 
the fact that the sources that qualify for exemptions from Minor NSR 
permitting requirements make a small portion of the state's emission 
sources. Based on the current number of active emission sources in the 
state of New Mexico, NMED estimates that the portion of emission 
sources that qualify for exemptions under Section 202, including the 
Paragraph A exemptions, accounts for less than ten percent (10%) of the 
total number of active emission sources in the state.\27\ Based on the 
supporting information and historical look back regarding these types 
of emission source and activity specific exemptions in other SIPs, EPA 
proposes to approve Paragraph A of Section 202 into the New Mexico SIP.
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    \26\ Supporting documentation contained in May 29, 1998 SIP 
submittal, specifically the direct testimony and public hearing 
transcript documents. Additional clarification also provided via 
Clarification of Exemptions in Section 202 of 20.2.72 NMAC--
Construction Permits letter dated September 19, 2012 from Richard L. 
Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate 
Director for Air Programs, EPA, Region 6.
    \27\ Information regarding the portion of current active 
emission sources that qualify for the source and activity specific 
exemptions under Section 202 was provided via electronic mail dated 
September 18, 2012, from Kerwin Singleton, NMED, to Ashley Mohr, 
EPA, Region 6.
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c. Paragraph B Exemptions
    Paragraph B of Section 202 includes the addition of a second list 
of source and activity specific permit exemptions for the Minor NSR 
permitting program. Like the Paragraph A emission sources, the 
Paragraph B sources and activities are exempted from the Minor NSR 
permitting requirements. However, facilities are required to include a 
listing of all Paragraph B exempt sources in their permit application. 
This inclusion in the permit application serves as a notification to 
NMED that a Paragraph B exempt source is located at a facility. NMED 
can then, based on the notification, verify that the source qualifies 
for the permit exemption. For cases where a Paragraph B source is being 
added to a permitted facility, the owner or operator is required to 
submit a request to NMED requesting an Administrative revision to the 
permit. This revision request also serves as a

[[Page 71160]]

notification that a Paragraph B source is located at a facility and 
provides NMED an opportunity to verify that the source qualifies for 
the claimed exemption. Administrative revisions are subject to the 
revised requirements under Section 219 and were further discussed in 
Subsection III.B.6.a of this preamble.
    The list of exempt sources and activities included in Paragraph B 
also includes operational limitations for most of the emission sources, 
which serve to minimize the potential impacts from these sources and 
activities on ambient air quality. The following is a listing of the 
Paragraph B exemptions, including any operational limitations contained 
in the Section 202 provisions:
    1. Fuel burning equipment which is used solely for heating 
buildings for personal comfort or for producing hot water for personal 
use and which:
    a. Uses gaseous fuel and has a design rate less than or equal to 
five (5) million BTU per hour; or
    b. Uses distillate oil (not including waste oil) and has a design 
rate less than or equal to one (1) million BTU per hour; \28\
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    \28\ This activity generally is not considered construction or a 
modification by EPA and not required to obtain a minor NSR permit.
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    2. VOC emissions resulting from the handling or storing of any VOC 
if:
    a. Such VOC has a vapor pressure of less than two tenths (0.2) PSI 
at temperatures at which the compound is stored and handled; and
    b. The owner or operator maintains sufficient record keeping to 
verify that the requirements of Sub-paragraph (a) of this paragraph are 
met;
    3. Standby generators which are:
    a. Operated only during the unavoidable loss of commercial utility 
power;
    b. Operated less than 500 hours per year; and
    c. Either are:
    i. The only source of air emissions at the site; or
    ii. Accompanied by sufficient record keeping to verify that the 
standby generator is operated less than 500 hours per year;
    4. The act of repositioning or relocating sources of air emissions 
or emissions points within the plant site, but only when such change in 
physical configuration does not increase air emissions or the ambient 
impacts of such emissions; \29\
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    \29\ This activity does not increase emissions and therefore 
generally is not considered construction or modification by EPA, 
requiring a minor NSR permit.
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    5. Any emissions unit, operation, or activity that has a potential 
emission rate of no more than one-half (\1/2\) ton per year of any 
pollutant for which a National or New Mexico Ambient Air Quality 
Standard has been set or one-half (\1/2\) ton per year of any VOC. 
Multiple emissions units, operations, and activities that perform 
identical or similar functions shall be combined in determining the 
applicability of this exemption;
    6. Surface coating of equipment, including spray painting, roll 
coating, and painting with aerosol spray cans, if:
    a. The potential emission rate of VOCs do not exceed ten (10) 
pounds per hour;
    b. The facility-wide total VOC content of all coating and clean-up 
solvent use is less than two (2) tons per year; and
    c. The owner or operator maintains sufficient record keeping to 
verify that the requirements in Sub-paragraphs (a) and (b) of this 
paragraph are met;
    7. Particulate emissions resulting from abrasive blasting 
operations, if:
    a. Blasting operations are entirely enclosed in a building; and
    b. No visible particulate emissions are released from the building.
d. 110(l) Analysis for Paragraph B Exemptions
    Similar to that of the analysis provided for Paragraph A sources, 
NMED provided an analysis of the anticipated impacts on ambient air 
quality for the sources contained in Paragraph B of Section 202. 
Emissions estimates were provided for sources excluded under Paragraph 
B, Sub-paragraphs 1, 2, 4, 5, 6 and 7. All of the emissions estimates 
provided for the Paragraph B sources in the SIP submittal are less than 
5.5 tons per year. NMED did not provide specific emissions information 
for standby generators, which are found under Sub-paragraph 3 of the 
Paragraph B exemptions in Section 202. However, standby generators only 
qualify for the Paragraph B exemptions if they are operated only during 
periods of unavoidable loss of commercial utility power and operate 
less than 500 hours per year. Paragraph B also requires that for those 
sources located at a site with other air emission sources, the facility 
must maintain records to verify operating hours below 500 hours. Based 
on the limitations on the annual hours of operation for the exempt 
standby generators, the expected annual emissions from these types of 
sources is expected to be of similar magnitude as those emissions 
resulting from the other Paragraph B exempted sources, i.e., less than 
5.5 tons per year. The provisions under Section 202 also include 
similar operational restrictions for other exempted sources under 
Paragraph B that minimize the potential impacts from these exempted 
emission sources. As indicated in the state's analysis, the emissions 
resulting from the Paragraph B exempted sources are not expected to 
have adverse impacts on air quality. Furthermore, Section 202 requires 
that applicants report the presence of the Paragraph B exempted sources 
on permit applications so that the Department can verify that the 
sources meet the requirements under this Paragraph and qualify as a 
Paragraph B exempted sources, and thus will not adversely impact air 
quality.
    In addition to the emissions estimates information provided by New 
Mexico, NMED has been carrying out the Minor NSR permitting program 
allowing for sources and activities listed in Paragraph B to be exempt 
from a portion of the preconstruction permitting requirements since the 
adoption of the permit exemptions in 1998 without any indication that 
these permit exemptions have interfered with attainment or reasonable 
further progress. As previously stated, NMED has reviewed the currently 
active emission sources contained in the state's permitting database to 
determine the number of documented sources that qualify for exemptions 
under Section 202. NMED has determined that Section 202 exempted 
sources, including Paragraph B sources, account for less than 10 
percent of the total number of currently active emission sources. Based 
on the supporting information and historical look back data regarding 
these emission source and activity specific exemptions, EPA proposes to 
approve Paragraph B of Section 202 into the New Mexico SIP.
e. Paragraph C Exemptions
    20.2.72.200(A)(3) NMAC of the current SIP requires sources that are 
subject to the applicable requirements of NSPS, NESHAP, or other 
emission limitation related requirements of another Part under Chapter 
2 of NMAC to obtain a preconstruction permit under Part 72, regardless 
of the source's potential to emit. The submitted Paragraph C exemption 
under Section 202 exempts from Minor NSR permitting requirements under 
Part 72 these sources with potential emission rates less than 25 tons 
per year or 10 lb per hour if the only reason permitting under Part 72 
is triggered is by the fact the source is subject to NSPS, NESHAP, or 
another Part under Chapter 2 of NMAC.30 31 This exemption 
only applies

[[Page 71161]]

to the permitting applicability requirement found in 20.2.72.200(A)(3) 
NMAC. Therefore, in the event a source subject to NSPS, NESHAP, or 
other Part exceeds the permitting applicability thresholds, such as the 
thresholds for new Minor NSR sources found in 20.2.72.200(A)(1) NMAC or 
Minor NSR modifications found 20.2.72.200(A)(2) NMAC, then the source 
would be required to be subject to the Minor NSR permitting 
requirements under Part 72. New Mexico has also explicitly excluded the 
following NSPS and NESHAP sources from claiming the exemption under 
Paragraph C of Section 202: NSPS Subparts I and OOO and NESHAP Subparts 
C and D.
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    \30\ The applicability test requiring the source to obtain a 
permit due to applicable emission limits under NSPS, NESHAP, or 
other Part under NMAC Chapter 2 is found in 20.2.200(A)(3) NMAC.
    \31\ To qualify for the Paragraph C exemptions, sources are also 
required to be included in a Notice of Intent filed under 20.2.73 
NMAC (Notice of Intent and Emissions Inventory); or to have met the 
notification requirements to which they are subject under NSPS or 
NESHAP.
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f. 110(l) Analysis for Paragraph C Exemptions
    Under the current SIP at 20.2.72.200(A)(3) NMAC, sources subject to 
NSPS, NESHAP, or any other New Mexico Air Quality Control Regulation 
which contains emission limitations for any regulated air contaminant 
are subject to the Minor NSR permitting requirements in Part 72 
regardless of whether their potential to emit is less than the 25 tons 
per year or 10 lb per hour permitting threshold in 200.2.72.200(A)(1) 
NMAC. The submitted Paragraph C of Section 202 includes an exemption 
for these sources from 20.2.72.200(A)(3) NMAC, and thus an exemption 
from the Minor NSR permitting requirements in Part 72, if they are 
included in a Notice of Intent under Part 73 or have met all applicable 
NSPS and NESHAP requirements, and have a potential to emit under 25 
tons per year or 10 lb per hour. This exemption thus is less stringent 
than the requirements of the currently approved SIP, and must be 
evaluated to determine whether it would cause interference with 
attainment or reasonable further progress.
    NMED indicated in testimony before the state Environmental 
Improvement Board that the intent of the current SIP approved rule was 
to use the Part 72 permit process as a mechanism for receiving 
notification of NSPS, NESHAP, or other regulated sources. NMED 
indicated in hearing testimony that it is unnecessary for such a 
source, as long as its potential to emit is under the 25 tons per year 
or 10 lb per hour Minor NSR permitting thresholds, to undergo the 
entire Part 72 permitting program if the Department's intent--
notification--is achieved in another way. Based on the implementation 
of this preconstruction permitting requirement along with the other 
state and federal notification requirements applicable to these 
sources, the Department determined that the notification requirements 
found in Part 73, NSPS, or NESHAP are sufficient for these sources with 
potential emission rates less than 25 tons per year or 10 lb per hour. 
Therefore, requiring these sources to undergo the entire Part 72 
preconstruction permitting process merely to obtain notification of the 
sources' existence is not necessary, as long as, the source complies 
with the Part 73, NSPS, or NESHAP notification requirements. EPA finds 
from NMED's supporting documentation nothing indicating these sources 
with potential emission rates less than 25 tons per year or 10 lb per 
hour were permitted for any reason other than notification.
    Under the proposed Paragraph C exemption, these sources are only 
exempted from the Minor NSR permitting requirements in Part 72 and are 
still required to meet all other applicable requirements, including 
emissions limitations, testing, recordkeeping, and reporting 
requirements. Additionally, this exemption only applies to the 
20.2.72.200(A)(3) NMAC applicability test, and the source must evaluate 
the permitting applicability requirements found in Sub-paragraphs (1), 
(2), (4), (5), and (6) under Paragraph A of Section 200. Based on 
NMED's testimony, EPA finds the Paragraph C exemption for these sources 
if their potential to emit is under Part 72's permitting thresholds for 
new Minor NSR sources and Minor NSR modifications codifies NMED's 
original primary purpose behind the current SIP--notification--without 
unnecessarily requiring these sources to undergo the full Minor NSR 
permitting requirements of Part 72 in order to meet that purpose. 
Because this exemption would apply only for those sources with a 
potential to emit below the currently SIP approved 25 tons per year or 
10 lb per hour minor NSR permitting thresholds in Part 72, EPA proposes 
to find Paragraph C of Section 202 does not interfere with attainment 
or reasonable further progress and approve it into the New Mexico SIP.
g. Portable Source Relocation
    The submitted Section 202 also contains provisions related to 
applicable permitting requirements for portable sources that are being 
relocated. These provisions were previously contained in Paragraph B of 
Section 202, but were moved to Paragraph D based on the additions of 
the source specific exemptions in the previous paragraphs. As part of 
the May 29, 1998 SIP revisions, clarifying language was added to 
provisions in Paragraph D regarding the requirements applicants must 
meet in order to relocate a permitted portable source without obtaining 
a permit revision. This SIP revision submittal also included the 
incorporation of additional recordkeeping and notification requirements 
that must be met in order for the portable source to relocate without 
obtaining a permit revision. As compared with the current SIP, EPA is 
proposing to approve these revised provisions as they include more 
stringent requirements for portable source relocation to meet and 
qualify for an exemption from preconstruction permitting.
h. Additional 110(l) Analysis--Historical Look Back
    In addition to the referenced supporting documentation regarding 
the Section 202 exemptions included in the May 29, 1998 SIP revision 
submittal, NMED also provided data as part of a historical look back to 
document how many active emission sources have been reported as 
exempted sources, as well as how may active emission sources throughout 
the state may have qualified for exemptions from preconstruction 
permitting under Section 202 of Part 72. Within the current database of 
active emission sources, there are 493 subject items listed as 
``Exempt'' within the database. These subject items may represent more 
than one emission source at a facility, if the facility has multiple 
units that are the same. In addition, the current active emission 
source database included additional emission units that may have 
qualified for a permit exemption under Section 202 and are not listed 
specifically as ``Exempt.'' NMED estimates that the total number of 
emission sources that may have qualified for exemptions from 
preconstruction permitting requirements is currently more than 
2,000.\32\ NMED has indicated that over the course of a decade since 
the state adopted the Permit Exemptions provisions in Section 202, the 
implementation of the Permit Exemptions provisions have not resulted in 
a measured exceedance of

[[Page 71162]]

the NAAQS. EPA finds this data is consistent with the supporting 
documentation provided by New Mexico in the SIP submittal that stated 
that the anticipated impacts on air quality from the sources qualifying 
for exemptions from preconstruction permitting requirements under 
Section 202 are expected to be insignificant.
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    \32\ Information regarding active emission sources and the 
current number of active sources that have claimed and/or may have 
qualified for exemptions under Section 202 was provided via 
Clarification of Exemptions in Section 202 of 20.2.72 NMAC--
Construction Permits letter dated September 19, 2012 from Richard L. 
Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate 
Director for Air Programs, EPA, Region 6 letter dated September 19, 
2012, from Mr. Richard Goodyear, NMED, to Mr. Thomas Diggs, EPA.
---------------------------------------------------------------------------

    Based on the reasons discussed above, we do not believe that the 
addition of the permit exemptions contained in Section 202 for minor 
permit modifications will interfere with attainment or reasonable 
further progress or any other applicable requirement of the Act. 
Furthermore, it is important to note that all of the permit exemptions 
contained in Section 202 are limited only to the Minor NSR permitting 
requirements contained in Sections 200-299 of Part 72. These exemptions 
would not apply to any other applicable state or federal requirements. 
The source would still be required to meet all other applicable state 
and federal requirements, including major NSR permitting requirements, 
NSPS, NESHAPS or MACT requirements, and state toxics permitting 
requirements, if applicable. The source would also have to comply with 
any control requirements developed as part of a SIP control strategy, 
like the control requirements applicable to the PM10 
nonattainment area in Anthony. Our evaluation of the SIP revision 
submittals related to Section 202, which are under review in this 
action, demonstrates compliance with section 110(l) of the CAA and 
provides further basis for proposing approval of this SIP revision.

IV. Proposed Action

    EPA is proposing an approval of the SIP revisions to the 
Construction Permits regulation found in Part 72 that were submitted by 
New Mexico on May 29, 1998, November 6, 1998, April 11, 2002, April 25, 
2005, and November 2, 2006, and the letter dated November 7, 2012 from 
the Secretary. EPA is proposing this action in accordance with section 
110 of the Act.

A. What are we not addressing in this proposed action?

    EPA is only taking proposed action on the severable revisions to 
Part 72 contained in the five SIP revision submittals listed above that 
were submitted to us for review and incorporation into the New Mexico 
SIP. By severable, we mean that the portions of the SIP revision 
submittals relating to Part 72 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 
Part 72. The following is a list of other revisions contained in the 
May 29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and 
November 2, 2006 submittals that are not being addressed in this 
proposed action:
     The November 6, 1998 submittal from New Mexico also 
contained revisions to correct errors in 20.2.70 NMAC--Operating 
Permits. Because 20.2.70 NMAC is outside the scope of the New Mexico 
SIP, the revisions to the Operating Permits provisions were not 
submitted as revisions to the state's SIP.
     The April 11, 2002 submittal from New Mexico also 
contained revisions to 20.2.73 NMAC--Notice of Intent and Emissions 
Inventory Requirements, 20.2.74 NMAC--Permits--Prevention of 
Significant Deterioration, 20.2.75 NMAC--Construction Permit Fees, and 
20.2.79 NMAC--Permits--Nonattainment Areas. Portions of the submittal 
related to Parts 73, 74, 75, and 79 have been or will be addressed in 
separate SIP revisions reviews and rule actions, as necessary.
     The April 11, 2002 submittal also included documentation 
related to an additional revision to 20.2.72 NMAC (filed with the State 
Records Center on February 28, 2001, effective March 30, 2001), which 
was submitted to EPA for informational purposes only and was not 
submitted for approval under the SIP. Therefore, the February 28, 2001 
state adopted revisions to Part 72 are not included in this proposed 
action.
     The April 25, 2005 submittal from New Mexico also 
contained revisions to 20.2.66 NMAC--Cotton Gins, 20.2.73 NMAC--Notice 
of Intent and Emissions Inventory Requirements, and 20.2.75 NMAC--
Construction Permit Fees. Portions of the submittal related to Parts 
66, 73, and 75 have been or will be addressed in separate SIP revisions 
reviews and rule actions, as necessary.
     The November 2, 2006 submittal from New Mexico also 
contained revisions to 20.2.3 NMAC--Ambient Air Quality Standards, 
20.2.70 NMAC--Operating Permits, and 20.2.99 NMAC--Conformity to the 
State Implementation Plan of Transportation Plans, Programs and 
Projects. Portions of the submittal related to Parts 3, 70, and 99 have 
been or will be addressed in separate SIP revisions reviews and rule 
actions, as necessary.

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. See 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 notice merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed 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.

[[Page 71163]]

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.

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

    Dated: November 13, 2012.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2012-28910 Filed 11-28-12; 8:45 am]
BILLING CODE 6560-50-P


