
[Federal Register: February 4, 2010 (Volume 75, Number 23)]
[Rules and Regulations]               
[Page 5698-5701]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04fe10-10]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0745; FRL-9110-2]

 
Approval and Promulgation of Implementation Plans; Albuquerque-
Bernalillo County, NM; Excess Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving revisions to the New Mexico State 
Implementation Plan (SIP) submitted by the Governor of New Mexico on 
behalf of the Albuquerque Environmental Health Department (AEHD) in a 
letter dated September 23, 2009 (the September 23, 2009 SIP submittal). 
The September 23, 2009 SIP submittal concerns revisions to New Mexico 
Administrative Code Title 20, Chapter 11, Part 49, Excess Emissions 
(20.11.49 NMAC--Excess Emissions) occurring during startup, shutdown, 
and malfunction related activities. We are approving the September 23, 
2009 SIP submittal in accordance with the requirements of section 110 
of the Clean Air Act (the Act).

DATES: This direct final rule will be effective April 5, 2010 without 
further notice unless EPA receives relevant adverse comments by March 
8, 2010. If adverse comments are received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0815, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov.
     Follow the online instructions for submitting comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/
region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select 
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please 
also send a copy by e-mail to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7242.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), 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, and not 
on legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket No. EPA-R06-OAR-2008-
0815. 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 whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means 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 and with any 
disk or CD-ROM you submit. 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, any form of encryption, and 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 
whose disclosure 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 Planning 
Section (6PD-L), 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. There will be a fee of 15 cents per page for making photocopies 
of documents. On the day of the visit, please check in at the EPA 
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas. 
The State submittal is also available for public inspection during 
official business hours, by appointment, at the State Air Agency listed 
below during official business hours by appointment: AEHD, Air Quality 
Division, One Civic Plaza, Albuquerque, NM 87102.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6691, fax 
(214) 665-7263, e-mail address shar.alan @epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to EPA.

Outline

I. Background
    A. What action are we taking in this document?
    B. What documents did we use in our evaluation of the September 
23, 2009 SIP submittal?
    C. Why are we approving the September 23, 2009 SIP submittal?
II. Final Action
III. Statutory and Executive Order Reviews

[[Page 5699]]

I. Background

A. What actions are we taking in this document?

    We are approving revisions to 20.11.49 NMAC--Excess Emissions 
occurring during startup, shutdown, and malfunction related activities 
as revisions to the New Mexico SIP for Albuquerque-Bernalillo County. 
We received this submittal with a September 23, 2009 letter from the 
Governor of New Mexico on behalf of the AEHD.
    We are approving the repeal of the existing EPA-approved provisions 
of the New Mexico SIP for Albuquerque-Bernalillo County concerning 
excess emissions. The existing provisions were titled Breakdown, 
Abnormal Operating Conditions, or Scheduled Maintenance. The existing 
provisions were approved into the New Mexico SIP for Albuquerque-
Bernalillo County on April 10, 1980 (42 FR 24468) at 40 CFR 
52.1620(c)(11). See Chapter A of our Technical Support Document (TSD) 
prepared in conjunction with this rulemaking action for more 
information.
    The September 23, 2009 submittal included proposed revisions 
20.11.65 NMAC--Volatile Organic Compounds to correct the Part 49-
related cross-references, and was submitted as a revision to the New 
Mexico SIP for Albuquerque-Bernalillo County. We are approving the 
proposed revisions to 20.11.65 NMAC--Volatile Organic Compounds for 
Albuquerque-Bernalillo County. See Chapter C of our TSD prepared in 
conjunction with this rulemaking action for more information.
    The September 23, 2009 submittal included proposed revisions to 
20.11.90 NMAC-Source Surveillance, Administration and Enforcement to 
properly reflect repeal of the existing Breakdown, Abnormal Operating 
Conditions, or Scheduled Maintenance provisions of the 20.11.90 NMAC. 
The revised 20.11.90 NMAC was submitted as revisions to the New Mexico 
SIP for Albuquerque-Bernalillo County. We are approving proposed 
revisions to 20.11.90 NMAC-Source Surveillance, Administration and 
Enforcement for Albuquerque-Bernalillo County. See Chapter E of our TSD 
prepared in conjunction with this rulemaking action for more 
information.
    The September 23, 2009 submittal also included proposed revisions 
to NMAC 20.11.69--Pathological Waste Destructors. NMAC 20.11.69--
Pathological Waste Destructors is not currently in the EPA-approved SIP 
for Albuquerque-Bernalillo County. We are not taking action on the 
proposed revisions to NMAC 20.11.69 as part of today's rulemaking 
action. The revisions to NMAC 20.11.69 for Albuquerque-Bernalillo 
County will be handled in a separate rulemaking action.

B. What documents did we use in our evaluation of the September 23, 
2009 SIP submittal?

    The EPA's interpretation of the Act on excess emissions occurring 
during periods of startup, shutdown, and malfunction is set forth in 
the following documents: A memorandum dated September 28, 1982, from 
Kathleen M. Bennett, Assistant Administrator for Air, Noise, and 
Radiation, entitled ``Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions'' (1982 Policy); EPA's 
clarification to the above policy memorandum dated February 15, 1983, 
from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and 
Radiation (1983 Policy); EPA's policy memorandum reaffirming and 
supplementing the above policy, dated September 20, 1999, from Steven 
A. Herman, Assistant Administrator for Enforcement and Compliance 
Assurance and Robert Perciasepe, Assistant Administrator for Air and 
Radiation, entitled ``State Implementation Plans: Policy Regarding 
Excess Emissions During Malfunctions, Startup, and Shutdown'' (1999 
Policy); EPA's final rule for Utah's sulfur dioxide control strategy 
(Kennecott Copper), April 27, 1977 (42 FR 21472); EPA's final rule for 
Idaho's sulfur dioxide control strategy, November 8, 1977 (42 FR 
58171); and the latest clarification of EPA's policy issued on December 
5, 2001 (2001 Policy). You can find the 2001 Policy at: http://
www.epa.gov/ttn/oarpg/t1pgm.html (URL dating July 22, 2008). The EPA's 
interpretation of the Act related to exclusions from emission 
limitations for sources in certain startup, shutdown, or malfunction 
situations was upheld by the United States Court of Appeals for the 
Sixth Circuit in Michigan Mfrs. Ass'n v. Browner, 230 F.3d 181 (6th 
Cir. 2000).

C. Why are we approving the September 23, 2009 SIP submittal?

    Under section 110(a) of the Act, EPA views all excess emissions as 
violations of the applicable emission limitation because excess 
emissions have the potential to interfere with attainment and 
maintenance of the National Ambient Air Quality Standards, or with the 
protection of Prevention of Significant Deterioration increments. 
However, EPA recognizes that imposition of a penalty for sudden and 
unavoidable malfunctions, startups or shutdowns caused by circumstances 
entirely beyond the control of the owner or operator may not be 
appropriate. The EPA has provided guidance on two approaches for 
addressing excess emissions, the use of enforcement discretion and 
providing an affirmative defense to actions for civil penalties. 
Neither approach waives liability or reporting requirements for the 
violation. Excess emissions occurring during periods of startup, 
shutdown, maintenance, and malfunction must be included in determining 
compliance with SIP emission limitations. States are not required to 
provide an affirmative defense approach, but if they choose to do so, 
EPA will evaluate the State's SIP rules for consistency with our policy 
and guidance documents listed in section B of this document. Our 
reasons for approval of the September 23, 2009 SIP submittal are as 
follows:
    The AEHD's September 23, 2009 SIP submittal adopts an affirmative 
defense approach to address excess emissions. This approach is 
permissible under the 1999 Policy.
    The AEHD's September 23, 2009 SIP submittal clearly states that 
operation resulting in an excess emission is a violation of the air 
quality regulation or permit, and may be subject to potential 
enforcement action. This statement is consistent with the 1999 Policy.
    The AEHD's September 23, 2009 SIP submittal adequately sets forth 
notification and reporting requirements for the owner or operator of a 
source having an excess emission. We believe that notification and 
reporting, including implementation of corrective action(s) when 
needed, of excess emissions will assist with the management of excess 
emissions and will enhance the New Mexico SIP for Albuquerque-
Bernalillo County by reducing the amount or frequency of future 
potential excess emissions.
    The AEHD's September 23, 2009 SIP submittal contains criteria to be 
considered when asserting an affirmative defense for an excess emission 
during startup or shutdown to claims for a civil penalty (but not the 
injunctive relief) that are similar, if not identical, to those in the 
1999 Policy. We believe the criteria for asserting an affirmative 
defense are consistent with our guidance documents and should be 
approved. See 20.11.49.16(B) NMAC for these criteria.
    The AEHD's September 23, 2009 SIP submittal contains criteria to be 
considered when asserting affirmative defense for an excess emission 
during a malfunction to claims for a civil penalty (but not the 
injunctive relief) that are similar, if not identical, to those in the 
1999 Policy. We believe the criteria for

[[Page 5700]]

asserting an affirmative defense are consistent with our guidance 
documents and should be approved. See 20.11.49.16(A) NMAC for these 
criteria.
    The AEHD's September 23, 2009 SIP submittal clearly states that 
AEHD's determinations concerning an owner or operator's assertion of 
the affirmative defense shall not preclude EPA or citizens' enforcement 
authority under the Act. This statement is consistent with 42 U.S.C. 
7413 and 7604.
    Section 20.11.49.16 NMAC of the AEHD's September 23, 2009 SIP 
submittal does not make affirmative defense available to an owner or 
operator of a source having an excess emission due to maintenance 
related activities. We believe that maintenance activities are 
predictable events that are subject to planning to minimize releases, 
unlike malfunctions or upsets, which are sudden, unavoidable or beyond 
the control of owner or operator. The owner or operator of a source 
should be able to plan maintenance that might otherwise lead to excess 
emissions to coincide with maintenance of production equipment or other 
facility shutdowns. This position is consistent with EPA's 
interpretation of section 110 of the Act, and with our guidance 
documents.
    The AEHD's September 23, 2009 SIP submittal narrowly defines an 
emergency situation. An owner and operator may assert an affirmative 
defense for an emergency if certain criteria are met. See 
20.11.49.16(C) NMAC for these criteria. In any enforcement proceeding, 
the owner or operator seeking to establish the occurrence of an 
emergency has the burden of proof. In addition, AEHD may require 
additional information reported within the time period specified by the 
department. See 20.11.49.16 NMAC. We believe this approach is 
consistent with our guidance documents.
    Section 20.11.49.16 NMAC of the AEHD's September 23, 2009 SIP 
submittal prohibits availability of affirmative defense to an owner or 
operator of a source having an excess emission when exceeding 
federally-promulgated emissions limits, to an action for an injunctive 
relief, or when exceeding certain federally-approved SIP limits which 
were established by taking into account potential startup and shutdown 
emissions. See 20.11.49.16(D) NMAC. This requirement is consistent with 
our guidance documents.
    For a section-by-section evaluation of the September 23, 2009 SIP 
submittal see Chapter B of our TSD. For these reasons we are approving 
20.11.49 NMAC into New Mexico SIP for Albuquerque-Bernalillo County.
    In addition, we are approving the repeal and replacement of the 
existing EPA-approved provisions of the New Mexico SIP for Albuquerque-
Bernalillo County concerning excess emissions titled Breakdown, 
Abnormal Operating Conditions, or Scheduled Maintenance. The existing 
EPA-approved provisions allowed affirmative defense for maintenance 
activities, and stated that excess emissions from such activities are 
not violations. The existing EPA-approved provisions did not conform 
with the 1999 Policy. The revised 20.11.49 NMAC contained in the 
September 23, 2009 SIP submittal conforms with the 1999 Policy, and its 
approval will enhance the New Mexico SIP for Albuquerque-Bernalillo 
County. As such this repeal and replacement meets and complies with 
section 110(l) of the Act. See Chapter A of our TSD.

II. Final Action

    Today, we are approving revisions to New Mexico Administrative Code 
Title 20, Chapter 11, Part 49 Excess Emissions (20.11.49 NMAC--Excess 
Emissions), 20.11.65 NMAC--Volatile Organic Compounds, and 20.11.90 
NMAC--Source Surveillance, Administration and Enforcement into New 
Mexico SIP for Albuquerque-Bernalillo County. We are approving the 
repeal of the existing excess emissions provisions titled Breakdown, 
Abnormal Operating Conditions, or Scheduled Maintenance. We are not 
taking action on revisions to 20.11.69 NMAC--Pathological Waste 
Destructors for Albuquerque-Bernalillo County.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act;
     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);
     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; and
     Is not a ``major rule'' as defined by 5 U.S.C. 804(2) 
under the Congressional Review Act, 5 U.S.C. 801 et seq., added by the 
Small Business Regulatory Enforcement Fairness Act of 1996. A major 
rule cannot take effect until 60 days after it is published in the 
Federal Register. This action is not a ``major rule.'' Under section 
307(b)(1) of the Clean Air Act, petitions for judicial review of this 
action must be filed in the United States Court of Appeals for the 
appropriate circuit by April 5, 2010. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements (See section 307(b)(2) of the Act.)

[[Page 5701]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxide, Reporting and recordkeeping requirements, Ozone, Volatile 
organic compounds.

    Dated: January 25, 2010.
Al Armendariz,
Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart GG--New Mexico

0
2. The second table in Sec.  52.1620(c) entitled ``EPA Approved 
Albuquerque/Bernalillo County, NM Regulations'' is amended by:
0
a. Adding a new entry for ``Part 49 (20.11.49 NMAC) Excess Emissions'' 
in numerical order by part number;
0
b. Revising the existing entry for ``Part 65 (20.11.65 NMAC) Volatile 
Organic Compounds''; and
0
c. Revising the existing entry for ``Part 90 (20.11.90 NMAC) 
Administration, Enforcement, and Inspection''.
    The additions and revisions read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                           EPA Approved Albuquerque/Bernalillo County, NM Regulations
----------------------------------------------------------------------------------------------------------------
                                                          State approval/
           State citation                Title/subject       submittal     EPA approval date      Explanation
                                                               date
----------------------------------------------------------------------------------------------------------------
                         Albuquerque/Bernalillo County, Air Quality Control Regulations
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
   New Mexico Administrative Code (NMAC) Title 20--Environment Protection, Chapter 11--Albuquerque/Bernalillo
                                        County Air Quality Control Board
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Part 49 (20.11.49 NMAC).............  Excess Emissions..         9/23/09  2/4/10 [Insert FR   ..................
                                                                           page number where
                                                                           document begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Part 65 (20.11.65 NMAC).............  Volatile Organic           9/23/09  2/4/10 [Insert FR   ..................
                                       Compounds.                          page number where
                                                                           document begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Part 90 (20.11.90 NMAC).............  Source                     9/23/09  2/4/10 [Insert FR   ..................
                                       Surveillance,                       page number where
                                       Administration                      document begins].
                                       and Enforcement.

                                                  * * * * * * *
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[FR Doc. 2010-2393 Filed 2-3-10; 8:45 am]
BILLING CODE 6560-50-P

