

[Federal Register: February 15, 2007 (Volume 72, Number 31)]
[Proposed Rules]               
[Page 7361-7365]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15fe07-17]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0568; FRL-8278-3]

 
Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Albuquerque/Bernalillo County; Prevention of Significant 
Deterioration (PSD) and New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve revisions to the State 
Implementation Plan (SIP) for the Albuquerque/Bernalillo County, New 
Mexico, area that were submitted to EPA by the Governor of New Mexico 
on May 24, 2006. The proposed revisions modify the Prevention of 
Significant Deterioration and Nonattainment New Source Review (NNSR) 
regulations in the SIP. They were submitted to make the area's PSD and 
NNSR rules consistent with Federal NNSR and PSD revised regulations, 
which were promulgated by EPA on December 31, 2002 (67 Federal Register 
(FR) 80186) and reconsidered with minor changes on November 7, 2003 (68 
FR 63021) (collectively, these Federal actions are called the ``2002 
New Source Review

[[Page 7362]]

(NSR) Reform Rules''). The revisions include provisions for baseline 
emissions calculations, an actual-to-projected-actual methodology for 
calculating emissions changes, options for plantwide applicability 
limits (PALs), and recordkeeping and reporting requirements. We are 
proposing to approve these revisions pursuant to section 110, part C, 
and part D of the Federal Clean Air Act (Act).

DATES: Comments must be received on or before March 19, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R06-OAR-2006-0568, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the online instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm.
 Please click on ``6PD'' (Multimedia) and select 

``Air'' before submitting comments.
     E-mail: Mr. Stanley M. Spruiell at 
spruiell.stanley@epa.gov.

     Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R), 
at fax number (214) 665-7263.
     Mail: Mr. Stanley M. Spruiell, Air Permits Section (6PD-
R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Stanley M. Spruiell, Air 
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket ID Number EPA-R06-OAR-
2006-0568. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
through http://www.regulations.gov or e-mail if you believe that it is CBI or otherwise protected from disclosure. The http://

http://www.regulations.gov Web site is an ``anonymous access'' system, which 

means that EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov
, your e-mail address will be automatically captured 

and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment along with any disk or CD-ROM 
submitted. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters and any form of encryption and should be free of any 
defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
the disclosure of which is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy at the Air 

Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made 
available by appointment for public inspection in the Region 6 FOIA 
Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays 
except for legal holidays. Contact the person listed in the FOR FURTHER 
INFORMATION CONTACT paragraph below to make an appointment. If 
possible, please make the appointment at least two working days in 
advance of your visit. A 15 cent per page fee will be charged for 
making photocopies of documents. On the day of the visit, please check 
in at the EPA Region 6 reception area on the seventh floor at 1445 Ross 
Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:
    Albuquerque Environmental Health Department, Air Pollution Control 
Division, One Civic Plaza, Albuquerque, New Mexico 87103.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits 
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212; 
fax number (214) 665-7263; e-mail address spruiell.stanley@epa.gov.

SUPPLEMENTARY INFORMATION:
    Throughout this document, any reference to ``we,'' ``us,'' or 
``our'' shall mean EPA.

Outline:

I. What Action Is EPA Proposing?
II. What Is the Background for This Action?
III. What Is EPA's Analysis of Albuquerque's NSR Rule Revisions?
IV. Does Approval of the NNSR and PSD Revised Rules Interfere With 
Attainment, Reasonable Further Progress, or Any Other Applicable 
Requirement of the Act?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing?

    On May 24, 2006, the Governor of the State of New Mexico submitted 
revisions to the SIP for Albuquerque/Bernalillo County. The submittal 
consists of revisions to two regulations that are already part of the 
Albuquerque/Bernalillo County SIP. The affected regulations are: 
20.11.60 New Mexico Administrative Code (NMAC) (Permitting in 
Nonattainment Areas) and 20.11.61 NMAC (Prevention of Significant 
Deterioration). The revisions were made to update the Albuquerque/
Bernalillo County Air Quality Control Board (AQCB) NNSR and PSD 
regulations to ensure that the regulations are consistent with changes 
to the Federal NSR regulations published on December 31, 2002 (67 FR 
80186) and November 7, 2003 (68 FR 63021). These EPA rulemakings are 
collectively referred to as the ``2002 NSR Reform Rules.''
    This SIP revision also includes other non-substantive changes to 
AQCB's PSD and NNSR rules needed to update the regulatory citations, 
make clarifying revisions to the regulatory text, correct typographical 
errors, and ensure that the regulations are consistent with all current 
Federal requirements for PSD and NNSR. These non-substantive changes do 
not change the regulatory requirements. Please see the Technical 
Support Document (TSD) for further information.

II. What Is the Background for This Action?

    On December 31, 2002, EPA published final rule changes to 40 Code 
of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air 
Act's PSD and NNSR programs. See 67 FR 80186. On November 7, 2003, EPA 
published a notice of final action on the reconsideration of the 
December 31, 2002, final rule changes. See 68 FR 63021. In the November 
7th final action, EPA added the definition of ``replacement unit,'' and 
clarified issues regarding PALs. The purpose of today's

[[Page 7363]]

action is to propose approval of the State's SIP submittal for 
Albuquerque/Bernalillo County that includes revisions to the NNSR and 
PSD SIP rules.
    The 2002 NSR Reform Rules are part of EPA's implementation of parts 
C and D of Title I of the Act, 42 U.S.C. 7470-7515, addressing major 
sources and major modifications. Part C of Title I of the Act, 42 
U.S.C. 7470-7492, is the PSD program, which applies in areas that meet 
the National Ambient Air Quality Standards (NAAQS)--``attainment 
areas''--as well as in areas for which there is insufficient 
information to determine whether the area meets the NAAQS--
``unclassifiable'' areas. Part D of Title I of the Act, 42 U.S.C. 7501-
7515, is the NNSR program, which applies in areas that are not in 
attainment of one or more of the NAAQS--``nonattainment areas.'' There 
also is the section 110 requirement for a minor NSR preconstruction 
permit program SIP. EPA regulations implementing the NNSR and PSD 
programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and 
appendix S of part 51.
    The Act's NSR programs are preconstruction review and permitting 
programs applicable to new and modified stationary sources of air 
pollutants regulated under the Act. These programs include a 
combination of air quality planning and air pollution control 
technology program requirements. Briefly, section 109 of the Act, 42 
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public 
health and secondary NAAQS to protect public welfare. Once EPA sets 
those standards, each State must develop, adopt, and submit to EPA for 
approval, a SIP that contains emissions limitations and other control 
measures to attain and maintain the NAAQS. Each SIP is required to 
contain a preconstruction review program for the construction and 
modification of stationary sources of air pollution to assure that the 
NAAQS are achieved and maintained; to protect areas of clean air; to 
protect air quality related values (such as visibility) in national 
parks and other areas; to assure that appropriate emissions controls 
are applied; to maximize opportunities for economic development 
consistent with the preservation of clean air resources; and to ensure 
that any decision to increase air pollution is made only after full 
public consideration of the consequences of the decision.
    The 2002 NSR Reform Rules made changes to five areas of the NSR 
programs. In summary, these rules: (1) Provide a new method for 
determining baseline actual emissions in the NNSR and PSD programs; (2) 
adopt for the NNSR and PSD programs an actual-to-projected-actual 
methodology for determining whether a major modification has occurred; 
(3) allow major stationary sources to comply with PALs to avoid having 
a significant emissions increase that triggers the requirements of the 
NNSR and PSD programs; (4) provide a new applicability provision in the 
NNSR and PSD programs for emissions units that are designated clean 
units; and (5) exclude pollution control projects from the NNSR and PSD 
program definitions of ``physical change or change in the method of 
operation.'' For additional information on the 2002 NSR Reform Rules, 
see 67 FR 80186 (December 31, 2002) and http://www.epa.gov/nsr.

    After the 2002 NSR Reform Rules were finalized and effective (March 
3, 2003), various petitioners challenged numerous aspects of the 2002 
NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45 FR 
5276, August 7, 1980). On June 24, 2005, the D.C. Circuit Court of 
Appeals issued a decision on the challenges to the 2002 NSR Reform 
Rules. See New York v. United States, 413 F.3d 3 (D.C. Cir. 2005) 
rehearing en banc denied (December 9, 2005). In summary, the Court 
vacated portions of the Rules pertaining to clean units and pollution 
control projects; remanded a portion of the Rules regarding 
recordkeeping, e.g., 40 CFR 51.165(a)(6) and 40 CFR 51.166(r)(6); and 
either upheld or did not comment on the other provisions included as 
part of the 2002 NSR Reform Rules. The EPA has not yet responded to the 
Court's remand regarding the recordkeeping provisions. Today's action 
is consistent with the decision of the D.C. Circuit Court of Appeals 
because Albuquerque's submittal does not include any portions of the 
2002 NSR Reform Rules that were vacated as part of the June 2005 
decision.
    The 2002 NSR Reform Rules require that State agencies adopt and 
submit revisions to their SIP permitting programs implementing the 
minimum program elements of the 2002 NSR Reform Rules no later than 
January 2, 2006. See 40 CFR 51.166(a)(6)(i) (requiring State agencies 
to adopt and submit PSD SIP revisions within three years after new 
amendments are published in the Federal Register). State agencies may 
meet the requirements of 40 CFR Part 51 and the 2002 NSR Reform Rules 
with regulations that are different than but equivalent to the Federal 
regulations. If, however, a State decides not to implement any of the 
new applicability provisions, that State must demonstrate that its 
existing program is at least as stringent as the Federal program.
    On May 24, 2006, the Governor of New Mexico submitted a SIP 
revision for the purpose of revising AQCB's NNSR and PSD permitting 
regulations. These changes were made primarily to adopt EPA's 2002 NSR 
Reform Rules. As discussed in further detail below, EPA believes the 
revisions contained in the submittal are approvable for inclusion into 
the SIP for Albuquerque/Bernalillo County.

III. What Is EPA's Analysis of the Albuquerque NSR Rule Revisions?

    The AQCB currently has an EPA-approved NSR program for new and 
modified sources, including a minor NSR preconstruction permit program, 
an NNSR preconstruction permit program, and a PSD preconstruction 
permit program. Today, EPA is proposing to approve revisions to the 
AQCB's existing NNSR and PSD regulations in the SIP. These proposed 
revisions were submitted to EPA on May 24, 2006. Copies of the revised 
rules, as well as the TSD, can be obtained from the Docket, as 
discussed in the ``Docket'' section above. A discussion of the specific 
AQCB rule changes that are proposed for inclusion in the SIP is 
included in the TSD and summarized below.
    The AQCB's permitting requirements for major sources in or 
impacting upon non-attainment areas are set forth at 20.11.60 NMAC 
(Permitting in Nonattainment Areas). The current AQCB NNSR program 
applies to the construction of any new major stationary source or major 
modification of air pollution in a nonattainment area, as required by 
part D of Title I of the Act. To receive approval to construct, a 
source that is subject to this regulation must show that it will not 
cause a net increase in pollution or create a delay in meeting the 
NAAQS, and that it will install and use control technology that 
achieves the lowest achievable emission rate.
    The AQCB's regulation 20.11.61 NMAC (Prevention of Significant 
Deterioration) contains the preconstruction review program that 
provides for the prevention of significant deterioration of ambient air 
quality as required under part C of Title I of the Act. The program 
applies to major stationary sources or modifications constructed or 
installed in areas designated as attainment or unclassifiable with 
respect to the NAAQS.

[[Page 7364]]

    These revisions to 20.11.60 NMAC and 20.11.61 NMAC update the 
existing provisions to be consistent with the current Federal NNSR and 
PSD rules, including the effects of the 2002 NSR Reform Rules. These 
revisions address baseline actual emissions, actual-to-projected-actual 
applicability tests, and PALs. The revisions included in AQCB's NNSR 
and PSD programs are substantively the same as the 2002 NSR Reform 
Rules. As part of our review of AQCB's regulations, we performed a 
line-by-line review of the proposed revisions and have determined that 
they are consistent with the program requirements for the preparation, 
adoption and submittal of implementation plans for NSR set forth at 40 
CFR 51.165 and 51.166. This review is contained in the TSD for this 
action. The AQCB rules that we are reviewing do not incorporate the 
portions of the Federal rules that were vacated by the D.C. Circuit 
Court of Appeals, such as the clean unit provisions and the pollution 
control projects exclusion.
    The revised AQCB rules include the recordkeeping provisions set 
forth in the Federal rules at 40 CFR 51.165(a)(6) and 51.166(r)(6). 
However, AQCB chose to exclude the phrase ``reasonable possibility.'' 
In the Federal rule, this phrase limits the recordkeeping provisions to 
modifications at facilities that use the actual-to-future-actual 
methodology to calculate emissions changes, where there is a 
``reasonable possibility'' that the modifications will result in a 
significant emissions increase. Therefore, by leaving out the phrase 
``reasonable possibility'' from Subsection F of 20.11.60.12 NMAC and 
Subsection E of 20.11.61.12 NMAC, the AQCB rules require all 
modifications that use the actual-to-future-actual methodology to meet 
the recordkeeping requirements. As noted earlier, EPA has not yet 
responded to the D.C. Circuit Court of Appeals remand of the 
recordkeeping provisions of EPA's 2002 NSR Reform Rules. As a result, 
EPA's final decision with regard to the remand may require EPA to take 
further action on this portion of AQCB's rules. At present, however, 
AQCB's recordkeeping provisions are at least as stringent as the 
Federal requirements, and are therefore approvable.

IV. Does Approval of the NNSR and PSD Revised Rules Interfere With 
Attainment, Reasonable Further Progress, or Any Other Applicable 
Requirement of the Act?

    The Act provides in Section 110(l) that:

    Each revision to an implementation plan submitted by a State 
under this Act shall be adopted by such State after reasonable 
notice and public hearing. The Administrator shall not approve a 
revision of a plan if the revisions would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress (as defined in section 171), or any other applicable 
requirement of the Act.

Because, as discussed above and in the TSD, the revisions to the AQCB 
NNSR and PSD programs are substantively the same as the 2002 NSR Reform 
Rules, without including any vacated provisions, we conclude that these 
rules do not interfere with attainment, reasonable further progress, or 
any other applicable requirement of the Act. See 67 FR 80186 and 68 FR 
63021 for EPA's detailed explanation of the legal basis for the 2002 
NSR Reform Rules.

V. What Action Is EPA Taking Today?

    For the reasons discussed above, EPA is proposing to approve the 
changes made in the two rules, 20.11.60 NMAC (Permitting in 
Nonattainment Areas) and 20.11.61 NMAC (Prevention of Significant 
Deterioration) as submitted May 24, 2006, as revisions to the 
Albuquerque/Bernalillo County SIP.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by State law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under State law and does not impose any 
additional enforceable duty beyond that required by State law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Public Law 104-4).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on: One or more Indian 
tribes, the relationship between the Federal Government and Indian 
tribes, or the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000). This action also does not have 
Federalism implications because it does not have substantial direct 
effects on the States, the relationship between the national government 
and the States, or the distribution of power and responsibilities among 
the various levels of government, as specified in Executive Order 13132 
(64 FR 43255, August 10, 1999). This action merely proposes to approve 
a state rule implementing a Federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. The EPA interprets Executive Order 
13045, ``Protection of Children from Environmental Health Risks and 
Safety Risks'' (62 FR 19885, April 23, 1997), as applying only to those 
regulatory actions that concern health or safety risks such that the 
analysis required under section 5-501 of the Executive Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it would approve a state 
program. Executive Order 12898 (59 FR 7629 (February 16, 1994)) 
establishes federal executive policy on environmental justice. Because 
this rule merely proposes to approve a state rule implementing a 
Federal standard, EPA lacks the discretionary authority to modify 
today's regulatory decision on the basis of environmental justice 
considerations.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Act. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose 
an information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,

[[Page 7365]]

Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: February 5, 2007.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E7-2671 Filed 2-14-07; 8:45 am]

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