Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Prevention of Significant Deterioration and New Source Review, 33933-33937 [E7-11942]
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Federal Register / Vol. 72, No. 118 / Wednesday, June 20, 2007 / Proposed Rules
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regulations, experience has shown that
the previous, as well as the current,
regulation could not, in fact, be given
full effect because the cost of computer
searches could not be fully ascertained
and because of the difficulties in
determining the salary costs attributable
to individuals doing manual searches,
particularly at overseas posts where
Foreign Service Nationals have a
different and more frequently changing
pay scale. By using average salary costs
of the categories of individuals involved
in a search (i.e., clerical, professional,
executive) instead of the actual salary of
each such individual, the proposed
revision will permit computer
calculation of the fees that should be as
accurate as the current method and
should not result in any substantial
increase or diminution of search fees
charged or collected.
Regulatory Findings
Administrative Procedure Act. The
Department is publishing this rule as a
proposed rule. Public comments are
invited for a period of 90 days following
this document’s publication in the
Federal Register.
Regulatory Flexibility Act. The
Department, in accordance with the
Regulatory Flexibility Act (5 U.S.C.
605(b)), has reviewed this proposed rule
and, by approving it, certifies that this
rule will not have significant economic
impact on a substantial number of small
entities.
Unfunded Mandates Act of 1995. This
proposed rule will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any year, and it will not significantly
or uniquely affect small governments.
Therefore, no actions are deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
Small Business Regulatory
Enforcement Fairness Act of 1996. This
rule is not a major rule as defined by
section 804 of the Small Business
Regulatory Enforcement Act of 1996.
This rule will not result in an annual
effect on the economy of $100 million
or more; a major increase in costs or
prices; or significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreign
based companies in domestic and
import markets.
Executive Order 12866. The
Department does not consider this rule
to be a ‘‘significant regulatory action’’
under Executive Order (E.O.) 12866,
section 3(f), Regulatory Planning and
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Review. In addition, the Department is
exempt from Executive Order 12866
except to the extent that it is
promulgating regulations in conjunction
with a domestic agency that are
significant regulatory actions. The
Department has nevertheless reviewed
the regulation to ensure its consistency
with the regulatory philosophy and
principles set forth in that Executive
Order.
Executive Order 13132. This
regulation will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to require consultations or
warrant the preparation of a federalism
summary impact statement.
Paperwork Reduction Act. This rule
does not impose any new reporting or
recordkeeping requirements subject to
the Paperwork Reduction Act, 44 U.S.C.
Chapter 35.
List Subjects in 22 CFR Part 171
Administrative practice and
procedure, fees for searches in Freedom
of Information Act cases.
For the reasons set forth in the
preamble, 22 CFR part 171 of the Code
of Federal Regulations is proposed to be
amended as follows:
PART 171—AVAILABILITY OF
INFORMATION AND RECORDS TO
THE PUBLIC
1. The authority citation for part 171
continues to read as follows:
Authority: 22 U.S.C. 552, 552a; Ethics in
Government Act of 1978, Pub. L. 95–521, 92
Stat. 1824, as amended; E.O. 12958, as
amended, 60 FR 19825, 3 CFR, 1995 Comp.,
p. 333; E.O. 12600, 52 FR 23781, 3 CFR, 1987
Comp., p. 235.
2. Section 171.14 is amended by
adding a new paragraph (a)(3) to read as
follows:
§ 171.14
Fees to be charged—general.
*
*
*
*
*
(a) * * *
(3) For both manual and computer
searches, the Department shall charge
the estimated direct cost of each search
based on the average current salary rates
of the categories of personnel doing the
searches. Further information on search
fees is available by clicking on ‘‘FOIA’’
at the Department’s Web site at https://
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www.state.gov or directly at the FOIA
home page at https://foia.state.gov.
*
*
*
*
*
Dated: June 15, 2007.
Lee Lohman,
Deputy Assistant Secretary, Department of
State.
[FR Doc. E7–11944 Filed 6–19–07; 8:45 am]
BILLING CODE 4710–24–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2005–NM–0006; FRL–
8328–8]
Approval and Promulgation of Air
Quality Implementation Plans; New
Mexico; Prevention of Significant
Deterioration and New Source Review
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: The EPA is proposing to
approve revisions to the New Mexico
State Implementation Plan (SIP) that
were submitted to EPA on April 11,
2002, and December 29, 2005. The
proposed revisions modify New
Mexico’s Prevention of Significant
Deterioration (PSD) and Nonattainment
New Source Review (NNSR) regulations
in the SIP to address changes to the
Federal PSD and NNSR regulations,
which were promulgated by EPA on
December 31, 2002 and reconsidered
with minor changes on November 7,
2003 (collectively, these two Federal
actions are called the ‘‘2002 New Source
Review (NSR) Reform Rules’’). The
proposed revisions include provisions
for baseline emissions calculations, an
actual-to-projected-actual methodology
for calculating emissions changes,
options for plantwide applicability
limits (PALs), and recordkeeping and
reporting requirements. EPA is
proposing to approve these revisions
pursuant to section 110, parts C and D
of the Federal Clean Air Act (Act).
DATES: Comments must be received on
or before July 20, 2007.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R06–OAR–2005–NM–0006 by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• U.S. EPA Region 6 ‘‘Contact Us’’
Web site: https://epa.gov/region6/
r6coment.htm. Please click on ‘‘6PD’’
(Multimedia) and select ‘‘Air’’ before
submitting comments.
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• E-mail: Mr. Stanley M. Spruiell at
spruiell.stanley@epa.gov.
• Fax: Mr. Stanley M. Spruiell, Air
Permits Section (6PD–R), at fax number
(214) 665–7263.
• Mail: Mr. Stanley M. Spruiell, Air
Permits Section (6PD–), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
• Hand or Courier Delivery: Mr.
Stanley M. Spruiell, Air Permits Section
(6PD–R), Environmental Protection
Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202–2733. Such
deliveries are accepted only between the
hours of 8 a.m. and 4 p.m. weekdays
except for legal holidays. Special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID Number EPA–R06–OAR–
2005–NM–0006. The EPA’s policy is
that all comments received will be
included in the public docket without
change and may be made available
online at https://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 https://
www.regulations.gov or e-mail if you
believe that it is CBI or otherwise
protected from disclosure. The https://
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 https://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 https://
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
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material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically at https://
www.regulations.gov or in hard copy at
the Air Permits Section (6PD–R),
Environmental Protection Agency, 1445
Ross Avenue, Suite 700, Dallas, Texas
75202–2733. The file will be made
available by appointment for public
inspection in the Region 6 Freedom of
Information Act (FOIA) Review Room
between the hours of 8:30 a.m. and 4:30
p.m. weekdays except for legal holidays.
Contact the person listed in the FOR
FURTHER INFORMATION CONTACT
paragraph below to make an
appointment. If possible, please make
the appointment at least two working
days in advance of your visit. A 15 cent
per page fee will be charged for making
photocopies of documents. On the day
of the visit, please check in at the EPA
Region 6 reception area on the seventh
floor at 1445 Ross Avenue, Suite 700,
Dallas, Texas.
The State submittal is also available
for public inspection during official
business hours by appointment at the
New Mexico Environment Department,
Air Quality Bureau, 1190 St. Francis
Drive, Santa Fe, New Mexico 87502.
FOR FURTHER INFORMATION CONTACT: Mr.
Stanley M. Spruiell, Air Permits Section
(6PD–R), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–7212; fax number
(214) 665–7263; e-mail address
spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, any
reference to ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ shall
mean EPA.
Outline
I. What Action Is EPA Proposing?
II. What Is the Background for This Action?
III. What Is EPA’s Analysis of New Mexico’s
NSR Rule Revisions?
IV. Does Approval of New Mexico NSR Rule
Revisions Interfere With Attainment,
Reasonable Further Progress, or Any
Other Applicable Requirement of the
Act?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing?
On April 11, 2002, and December 29,
2005, New Mexico submitted revisions
to the New Mexico SIP. The submittal
consists of revisions to two regulations
that are already part of the New Mexico
SIP. The affected regulations are 20.2.74
New Mexico Administrative Code
(NMAC) (Permits—Prevention of
Significant Deterioration) and 20.2.79
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NMAC (Permits—Nonattainment Areas).
The revisions will update New Mexico’s
PSD and NNSR regulations to make
them consistent with changes to the
Federal NSR regulations published on
December 31, 2002 (67 FR 80186) and
November 7, 2003 (68 FR 63021). These
EPA rulemakings are collectively
referred to as the ‘‘2002 NSR Reform
Rules.’’
This SIP revision also includes other
non-substantive changes to New
Mexico’s PSD and NNSR rules needed
to update the regulatory citations, make
clarifying revisions to the regulatory
text, and correct typographical errors.
These non-substantive changes do not
change the regulatory requirements.
Please see the Technical Support
Document (TSD) for further information.
The EPA is also proposing to approve
portions of the SIP submittal dated
April 11, 2002. This action only
approves the following provisions of the
April 11, 2002, SIP submittal:
• The removal of the definition of
‘‘complete’’ currently in Paragraph O of
20.2.74.7 NMAC; and
• Revisions to 20.2.74.400 NMAC and
20.2.79 NMAC which relate to the
requirements for public notice and
public participation for PSD and NNSR
permits.
The EPA is only addressing two
provisions of the April 11, 2002, SIP
submittal in this action because these
provisions are the only provisions in the
submittal that address PSD and NNSR.
The EPA will take appropriate action on
the remaining provisions of the April
11, 2002, submittal in a separate action.
II. What Is the Background for This
Action?
On December 31, 2002, EPA
published final rule changes to 40 Code
of Federal Regulations (CFR) parts 51
and 52, regarding the Clean Air Act’s
PSD and NNSR programs. See 67 FR
80186. On November 7, 2003, EPA
published a notice of final action on the
reconsideration of the December 31,
2002, final rule changes. See 68 FR
63021. In the November 7th final action,
EPA added the definition of
‘‘replacement unit,’’ and clarified issues
regarding PALs. The purpose of today’s
action is to propose approval of New
Mexico’s SIP submittal, which includes
revisions to the NNSR and PSD SIP
rules.
The 2002 NSR Reform Rules are part
of EPA’s implementation of parts C and
D of Title I of the Act, 42 U.S.C. 7470–
7515, addressing major sources and
major modifications. Part C of Title I of
the Act, 42 U.S.C. 7470–7492, is the
PSD program, which applies in areas
that meet the National Ambient Air
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Quality Standards (NAAQS)—
‘‘attainment areas’’—as well as in areas
for which there is insufficient
information to determine whether the
area meets the NAAQS—‘‘unclassifiable
areas.’’ Part D of Title I of the Act, 42
U.S.C. 7501–7515, is the NNSR
program, which applies in areas that are
not in attainment of one or more of the
NAAQS—‘‘nonattainment areas.’’ EPA
regulations implementing the NNSR and
PSD programs are contained in 40 CFR
51.165, 51.166, 52.21, 52.24, and
appendix S of part 51.
The Act’s NSR programs are
preconstruction review and permitting
programs that apply to new and
modified stationary sources of air
pollutants regulated under the Act.
These programs include a combination
of air quality planning and air pollution
control technology program
requirements. Briefly, section 109 of the
Act, 42 U.S.C. 7409, requires EPA to
promulgate primary NAAQS to protect
public health and secondary NAAQS to
protect public welfare. Once EPA sets
those standards, each State must
develop, adopt, and submit to EPA for
approval, a SIP that contains emissions
limitations and other control measures
to attain and maintain the NAAQS. Each
SIP is required to contain a
preconstruction review program for the
construction and modification of
stationary sources of air pollution to
assure that the NAAQS are achieved
and maintained; to protect areas of clean
air; to protect air quality related values
(such as visibility) in national parks and
other areas; to assure that appropriate
emissions controls are applied; to
maximize opportunities for economic
development consistent with the
preservation of clean air resources; and
to ensure that any decision to increase
air pollution is made only after full
public consideration of the
consequences of the decision.
The 2002 NSR Reform Rules made
changes to five areas of the NSR
programs. The rules: (1) Provide a new
method for determining baseline actual
emissions in the NNSR and PSD
programs; (2) adopt for the NNSR and
PSD programs an actual-to-projectedactual 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
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or change in the method of operation.’’
For additional information on the 2002
NSR Reform Rules, see 67 FR 80186
(December 31, 2002) and https://
www.epa.gov/nsr.
After the 2002 NSR Reform Rules
were finalized and became effective
(March 3, 2003), various petitioners
challenged numerous aspects of the
2002 NSR Reform Rules, along with
portions of EPA’s 1980 NSR Rules (45
FR 5276, August 7, 1980). On June 24,
2005, the D.C. Circuit Court of Appeals
issued a decision on the challenges to
the 2002 NSR Reform Rules. See New
York v. United States, 413 F.3d 3 (D.C.
Cir. 2005) rehearing en banc denied
(December 9, 2005). The Court vacated
portions of the Rules pertaining to clean
units and pollution control projects;
remanded a portion of the Rules
regarding recordkeeping, e.g., 40 CFR
51.165(a)(6) and 40 CFR 51.166(r)(6);
and either upheld or did not comment
on the other provisions included as part
of the 2002 NSR Reform Rules. The EPA
has not yet responded to the Court’s
remand regarding the recordkeeping
provisions. Today’s action is consistent
with the decision of the D.C. Circuit
Court of Appeals because New Mexico’s
submittal does not include any portions
of the 2002 NSR Reform Rules that were
vacated.
The 2002 NSR Reform Rules require
that no later than January 2, 2006, State
agencies adopt and submit revisions to
their SIP permitting programs to
implement the minimum program
elements of the 2002 NSR Reform Rules.
See 40 CFR 51.166(a)(6)(i) (requiring
State agencies to adopt and submit PSD
SIP revisions within three years after
new amendments are published in the
Federal Register). State agencies may
meet the requirements of 40 CFR part 51
and the 2002 NSR Reform Rules with
different but equivalent regulations. If,
however, a State decides not to
implement any of the new applicability
provisions, that State must demonstrate
that its existing program is at least as
stringent as the Federal program. As
discussed in further detail below, EPA
believes the revisions contained in this
submittal are approvable for inclusion
into the New Mexico SIP.
III. What Is EPA’s Analysis of New
Mexico’s NSR Rule Revisions?
New Mexico currently has an EPAapproved NSR program for new and
modified sources, including a minor
NSR preconstruction permit program,
an NNSR preconstruction permit
program, and a PSD preconstruction
permit program. Today, EPA is
proposing to approve revisions to New
Mexico’s existing NNSR and PSD
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regulations in the SIP. These proposed
revisions were submitted to EPA on
December 29, 2005. Copies of the
revised rules, as well as the TSD, can be
obtained from the Docket, as discussed
in the ‘‘Docket’’’ section above. A
discussion of the specific New Mexico
rule changes that are proposed for
inclusion in the SIP is included in the
TSD and summarized below.
New Mexico’s regulation 20.2.74
NMAC (Permits—Prevention of
Significant Deterioration) contains the
preconstruction review program that
provides for the prevention of
significant deterioration of ambient air
quality as required under part C of Title
I of the Act. The program applies to
major stationary sources or
modifications constructed or installed
in areas designated as attainment or
unclassifiable with respect to the
NAAQS.
New Mexico’s permitting
requirements for major sources in or
impacting upon non-attainment areas
are set forth at 20.2.79 NMAC
(Permitting—Nonattainment Areas). The
current New Mexico NNSR program
applies to the construction of any new
major stationary source or major
modification of air pollution in a
nonattainment area, as required by part
D of Title I of the Act. To receive
approval to construct, a source that is
subject to this regulation must show that
it will not cause a net increase in
pollution or create a delay in meeting
the NAAQS and that it will install and
use control technology that achieves the
lowest achievable emission rate.
These revisions to 20.2.74 NMAC and
20.2.79 NMAC update the existing
provisions to be consistent with the
Federal 2002 NSR Reform Rules. These
revisions address baseline actual
emissions, actual-to-projected-actual
applicability tests, and PALs. The
revisions included in New Mexico’s
NNSR and PSD programs are
substantively the same as the 2002 NSR
Reform Rules. As part of EPA’s review
of New Mexico’s regulations, EPA
performed a line-by-line review of the
proposed revisions and determined that
the proposed revisions are consistent
with the program requirements for the
preparation, adoption and submittal of
implementation plans for NSR set forth
at 40 CFR 51.165 and 51.166. This
review is contained in the TSD for this
action. The New Mexico rules that EPA
reviewed do not incorporate the
portions of the Federal rules that were
vacated by the D.C. Circuit Court of
Appeals, such as the clean unit
provisions and the pollution control
projects exclusion.
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The revised New Mexico rules
include the recordkeeping provisions
set forth in the Federal rules at 40 CFR
51.165(a)(6) and 51.166(r)(6). However,
New Mexico chose to exclude the
phrase ‘‘reasonable possibility.’’ In the
Federal rule, this phrase limits the
recordkeeping provisions to
modifications at facilities that use the
actual-to-future-actual methodology to
calculate emissions changes, where
there is a ‘‘reasonable possibility’’ that
the modifications will result in a
significant emissions increase.
Therefore, by leaving out the phrase
‘‘reasonable possibility’’ from
Subsection E of 20.2.74.300 NMAC and
Subsection E of 20.2.79.199 NMAC, the
NMED rules require all modifications
that use the actual-to-future-actual
methodology to meet the recordkeeping
requirements. As noted earlier, EPA has
not yet responded to the D.C. Circuit
Court of Appeals remand of the
recordkeeping provisions of EPA’s 2002
NSR Reform Rules. As a result, EPA’s
final decision with regard to the remand
may require EPA to take further action
on this portion of NMED’s rules. At
present, however, NMED’s
recordkeeping provisions are at least as
stringent as the Federal requirements,
and are therefore approvable.
In the April 11, 2002, submittal, New
Mexico revised the definitions by
removing the definition of ‘‘complete’’
from Paragraph O of 20.2.74.7 NMAC.
The current SIP contained this
definition of ‘‘complete’’ to meet the
requirements of 40 CFR 51.166(b)(22).
Although the definition of ‘‘complete’’
is removed from 20.2.74.7 NMAC, other
provisions in 20.2.74 NMAC address the
criteria that a permit application must
address in order to be administratively
complete. Specifically, 20.2.74.301
NMAC and 20.2.74.400 NMAC include
each of the elements that an application
for a PSD permit must contain in order
to be administratively complete. These
provisions include and meet the
requirements of 40 CFR 51.166(n). Thus
the New Mexico rules contain
provisions that ensure that PSD permit
applications are administratively
complete as required by the Federal
rules.
The April 11, 2002, submittal also
includes revisions to 20.2.74.400 NMAC
and 20.2.79.118 NMAC, which include
the schedules and procedures to
determine completeness of PSD and
NNSR permit applications and the
requirements for public participation
and notice. The provisions were revised
to provide that the New Mexico
Environment Department (NMED) will
review a permit application and
determine whether it is administratively
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complete within 30 days after receipt of
the application. If the application is
administratively complete, the NMED
will notify the applicant of this finding
by certified mail. If the application is
administratively incomplete, the NMED
will inform the applicant of such
finding by certified mail and state the
additional information or points of
clarifications that are necessary to deem
the application administratively
complete. When the NMED receives
additional information or clarification,
it will promptly review such
information and determine whether the
application is administratively
complete. The procedures for
determining administrative
completeness and for public
participation meet the requirements of
40 CFR 51.161 and 40 CFR 51.166(q)
which specifies the public participation
requirements for PSD permits.
The April 11, 2002, submittal also
revised 20.2.74.400 NMAC to include a
cross-reference to 20.2.72 NMAC.
Specifically, 20.2.74.400 NMAC
provides that in order for a PSD permit
application to be administratively
complete, it must meet 20.2.74.301
NMAC and 20.2.72 NMAC. 20.2.74.301
NMAC includes the source information
specified in 40 CFR 51.166(n) and is not
substantively changed in this action.
Under 20.2.72 NMAC, requirements of a
complete application are identified in
Paragraph A of 20.2.72.203 NMAC. The
cross-reference to Paragraph A of
20.2.72.203 NMAC contains the
elements for a complete application
which has non-substantive changes to
the current SIP. It also contains
additional criteria that are in addition to
the completeness elements that a permit
application must contain in order to be
administratively complete. Accordingly,
New Mexico retains the minimum
requirements for determining whether
an application is complete that meets
the Federal requirements. The TSD
contains a detailed discussion of these
completeness provisions.
IV. Does Approval of New Mexico’s
Rule Revisions Interfere With
Attainment, Reasonable Further
Progress, or Any Other Applicable
Requirement of the Act?
The Act provides in Section 110(l)
that:
Each revision to an implementation plan
submitted by a State under this Act shall be
adopted by such State after reasonable notice
and public hearing. The Administrator shall
not approve a revision of a plan if the
revisions would interfere with any applicable
requirement concerning attainment and
reasonable further progress (as defined in
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section 171), or any other applicable
requirement of the Act.
Because, as discussed above and in
the TSD, the revisions to the New
Mexico NNSR and PSD programs are
substantively the same as the 2002 NSR
Reform Rules, without including any
vacated provisions, we conclude that
these rules do not interfere with
attainment, reasonable further progress,
or any other applicable requirement of
the Act. See 67 FR 80186 and 68 FR
63021 for EPA’s detailed explanation of
the legal basis for the 2002 NSR Reform
Rules.
V. What Action Is EPA Taking Today?
For the reasons discussed above, EPA
is proposing to approve the changes
made in the two rules, 20.2.74 NMAC
(Permits—Prevention of Significant
Deterioration) and 20.2.79 NMAC
(Permits—Nonattainment Areas) as
revised in the following SIP submittals:
• The portion of the SIP revisions
submitted April 11, 2002, which revise
20.2.74 NMAC and 20.2.79 NMAC; and
• The NSR Reform provisions
submitted December 29, 2005.
VI. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this proposed
action is not a ‘‘significant regulatory
action’’ and therefore is not subject to
review by the Office of Management and
Budget. For this reason, this action is
also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This proposed action merely
proposes to approve State law as
meeting Federal requirements and
imposes no additional requirements
beyond those imposed by State law.
Accordingly, the Administrator certifies
that this proposed rule will not have a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). Because this rule
proposes to approve pre-existing
requirements under State law and does
not impose any additional enforceable
duty beyond that required by State law,
it does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4).
This proposed rule also does not have
tribal implications because it will not
have a substantial direct effect on one or
more Indian tribes, the relationship
between the Federal Government and
Indian tribes, or the distribution of
power and responsibilities between the
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Federal Register / Vol. 72, No. 118 / Wednesday, June 20, 2007 / Proposed Rules
rwilkins on PROD1PC63 with PROPOSALS
Federal Government and Indian tribes,
as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). This
action also does not have Federalism
implications because it does not have
substantial direct effects on the States,
the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This action merely
proposes to approve a State rule
implementing a Federal standard, and
does not alter the relationship or the
distribution of power and
responsibilities established in the Clean
Air Act. The EPA interprets Executive
Order 13045, ‘‘Protection of Children
from Environmental Health Risks and
Safety Risks’’ (62 FR 19885, April 23,
1997), as applying only to those
regulatory actions that concern health or
safety risks such that the analysis
required under section 5–501 of the
Executive Order has the potential to
influence the regulation. This proposed
rule is not subject to Executive Order
13045 because it would approve a State
program. Executive Order 12898 (59 FR
7629 (February 16, 1994)) establishes
Federal executive policy on
environmental justice. Because this rule
merely proposes to approve a State rule
implementing a Federal standard, EPA
lacks the discretionary authority to
modify today’s regulatory decision on
the basis of environmental justice
considerations. In reviewing SIP
submissions, EPA’s role is to approve
State choices, provided that they meet
the criteria of the Act. In this context,
in the absence of a prior existing
requirement for the State to use
voluntary consensus standards (VCS),
EPA has no authority to disapprove a
SIP submission for failure to use VCS.
It would thus be inconsistent with
applicable law for EPA, when it reviews
a SIP submission, to use VCS in place
of a SIP submission that otherwise
satisfies the provisions of the Act. Thus,
the requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. This proposed
rule does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
VerDate Aug<31>2005
17:23 Jun 19, 2007
Jkt 211001
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 11, 2007.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E7–11942 Filed 6–19–07; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R05–OAR–2006–0956; FRL–8328–9]
Approval and Promulgation of
Implementation Plans and Designation
of Areas for Air Quality Planning
Purposes; Ohio; Redesignation of
Dayton-Springfield Area to Attainment
for Ozone
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to make a
determination under the Clean Air Act
(CAA) that the nonattainment area of
Dayton-Springfield, Ohio (Clark, Green,
Miami, and Montgomery Counties) has
attained the 8-hour ozone National
Ambient Air Quality Standard
(NAAQS). This determination is based
on complete, quality-assured ambient
air quality monitoring data for the 2004–
2006 seasons that demonstrate that the
8-hour ozone NAAQS have been
attained in the area. EPA is also
proposing to approve, as a revision to
the Ohio State Implementation Plan
(SIP), the State’s plan for maintaining
the 8-hour ozone NAAQS through 2018
in the area.
EPA is proposing to approve a request
from the State of Ohio to redesignate the
Dayton-Springfield area to attainment of
the 8-hour ozone NAAQS. The Ohio
Environmental Protection Agency
(OEPA) submitted this request on
November 6, 2006 and supplemented it
on November 29, 2006, December 4,
2006, December 13, 2006, January 11,
2007, March 9, 2007, March 27, 2007,
and May 31, 2007. EPA is also
proposing to approve the State’s 2005
and 2018 Motor Vehicle Emission
Budgets (MVEBs) for the DaytonSpringfield area.
DATES: Comments must be received on
or before July 20, 2007.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2006–0956, by one of the
following methods:
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
33937
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. E-mail: mooney.john@epa.gov.
3. Fax: (312) 886–5824.
4. Mail: John M. Mooney, Chief,
Criteria Pollutant Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
5. Hand delivery: John M. Mooney,
Chief, Criteria Pollutant Section, Air
Programs Branch (AR–18J), U.S.
Environmental Protection Agency, 77
West Jackson Boulevard, 18th floor,
Chicago, Illinois 60604. Such deliveries
are only accepted during the Regional
Office normal hours of operation, and
special arrangements should be made
for deliveries of boxed information. The
Regional Office official hours of
business are Monday through Friday,
8:30 a.m. to 4:30 p.m. excluding federal
holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R05–OAR–2006–
0956. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
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 www.regulations.gov
or e-mail. The 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 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. For additional instructions
on submitting comments, go to Section
I of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: All documents in the docket
are listed in the www.regulations.gov
E:\FR\FM\20JNP1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 118 (Wednesday, June 20, 2007)]
[Proposed Rules]
[Pages 33933-33937]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11942]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2005-NM-0006; FRL-8328-8]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Prevention of Significant Deterioration and New Source
Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is proposing to approve revisions to the New Mexico
State Implementation Plan (SIP) that were submitted to EPA on April 11,
2002, and December 29, 2005. The proposed revisions modify New Mexico's
Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NNSR) regulations in the SIP to address changes to the
Federal PSD and NNSR regulations, which were promulgated by EPA on
December 31, 2002 and reconsidered with minor changes on November 7,
2003 (collectively, these two Federal actions are called the ``2002 New
Source Review (NSR) Reform Rules''). The proposed revisions include
provisions for baseline emissions calculations, an actual-to-projected-
actual methodology for calculating emissions changes, options for
plantwide applicability limits (PALs), and recordkeeping and reporting
requirements. EPA is proposing to approve these revisions pursuant to
section 110, parts C and D of the Federal Clean Air Act (Act).
DATES: Comments must be received on or before July 20, 2007.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R06-OAR-2005-NM-0006 by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments.
U.S. EPA Region 6 ``Contact Us'' Web site: https://epa.gov/
region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
[[Page 33934]]
E-mail: Mr. Stanley M. Spruiell at
spruiell.stanley@epa.gov.
Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R),
at fax number (214) 665-7263.
Mail: Mr. Stanley M. Spruiell, Air Permits Section (6PD-),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
Hand or Courier Delivery: Mr. Stanley M. Spruiell, Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID Number EPA-R06-OAR-
2005-NM-0006. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at https://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 https://www.regulations.gov or e-mail if you believe that it is
CBI or otherwise protected from disclosure. The https://
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 https://
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 https://
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 https://www.regulations.gov or in hard copy at the Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 Freedom
of Information Act (FOIA) Review Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal holidays. Contact the person
listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make
an appointment. If possible, please make the appointment at least two
working days in advance of your visit. A 15 cent per page fee will be
charged for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area on the seventh floor
at 1445 Ross Avenue, Suite 700, Dallas, Texas.
The State submittal is also available for public inspection during
official business hours by appointment at the New Mexico Environment
Department, Air Quality Bureau, 1190 St. Francis Drive, Santa Fe, New
Mexico 87502.
FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212;
fax number (214) 665-7263; e-mail address spruiell.stanley@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, any reference to
``we,'' ``us,'' or ``our'' shall mean EPA.
Outline
I. What Action Is EPA Proposing?
II. What Is the Background for This Action?
III. What Is EPA's Analysis of New Mexico's NSR Rule Revisions?
IV. Does Approval of New Mexico NSR Rule Revisions Interfere With
Attainment, Reasonable Further Progress, or Any Other Applicable
Requirement of the Act?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing?
On April 11, 2002, and December 29, 2005, New Mexico submitted
revisions to the New Mexico SIP. The submittal consists of revisions to
two regulations that are already part of the New Mexico SIP. The
affected regulations are 20.2.74 New Mexico Administrative Code (NMAC)
(Permits--Prevention of Significant Deterioration) and 20.2.79 NMAC
(Permits--Nonattainment Areas). The revisions will update New Mexico's
PSD and NNSR regulations to make them consistent with changes to the
Federal NSR regulations published on December 31, 2002 (67 FR 80186)
and November 7, 2003 (68 FR 63021). These EPA rulemakings are
collectively referred to as the ``2002 NSR Reform Rules.''
This SIP revision also includes other non-substantive changes to
New Mexico's PSD and NNSR rules needed to update the regulatory
citations, make clarifying revisions to the regulatory text, and
correct typographical errors. These non-substantive changes do not
change the regulatory requirements. Please see the Technical Support
Document (TSD) for further information.
The EPA is also proposing to approve portions of the SIP submittal
dated April 11, 2002. This action only approves the following
provisions of the April 11, 2002, SIP submittal:
The removal of the definition of ``complete'' currently in
Paragraph O of 20.2.74.7 NMAC; and
Revisions to 20.2.74.400 NMAC and 20.2.79 NMAC which
relate to the requirements for public notice and public participation
for PSD and NNSR permits.
The EPA is only addressing two provisions of the April 11, 2002,
SIP submittal in this action because these provisions are the only
provisions in the submittal that address PSD and NNSR. The EPA will
take appropriate action on the remaining provisions of the April 11,
2002, submittal in a separate action.
II. What Is the Background for This Action?
On December 31, 2002, EPA published final rule changes to 40 Code
of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air
Act's PSD and NNSR programs. See 67 FR 80186. On November 7, 2003, EPA
published a notice of final action on the reconsideration of the
December 31, 2002, final rule changes. See 68 FR 63021. In the November
7th final action, EPA added the definition of ``replacement unit,'' and
clarified issues regarding PALs. The purpose of today's action is to
propose approval of New Mexico's SIP submittal, which includes
revisions to the NNSR and PSD SIP rules.
The 2002 NSR Reform Rules are part of EPA's implementation of parts
C and D of Title I of the Act, 42 U.S.C. 7470-7515, addressing major
sources and major modifications. Part C of Title I of the Act, 42
U.S.C. 7470-7492, is the PSD program, which applies in areas that meet
the National Ambient Air
[[Page 33935]]
Quality Standards (NAAQS)--``attainment areas''--as well as in areas
for which there is insufficient information to determine whether the
area meets the NAAQS--``unclassifiable areas.'' Part D of Title I of
the Act, 42 U.S.C. 7501-7515, is the NNSR program, which applies in
areas that are not in attainment of one or more of the NAAQS--
``nonattainment areas.'' EPA regulations implementing the NNSR and PSD
programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and
appendix S of part 51.
The Act's NSR programs are preconstruction review and permitting
programs that apply to new and modified stationary sources of air
pollutants regulated under the Act. These programs include a
combination of air quality planning and air pollution control
technology program requirements. Briefly, section 109 of the Act, 42
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public
health and secondary NAAQS to protect public welfare. Once EPA sets
those standards, each State must develop, adopt, and submit to EPA for
approval, a SIP that contains emissions limitations and other control
measures to attain and maintain the NAAQS. Each SIP is required to
contain a preconstruction review program for the construction and
modification of stationary sources of air pollution to assure that the
NAAQS are achieved and maintained; to protect areas of clean air; to
protect air quality related values (such as visibility) in national
parks and other areas; to assure that appropriate emissions controls
are applied; to maximize opportunities for economic development
consistent with the preservation of clean air resources; and to ensure
that any decision to increase air pollution is made only after full
public consideration of the consequences of the decision.
The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. The rules: (1) Provide a new method for determining baseline
actual emissions in the NNSR and PSD programs; (2) adopt for the NNSR
and PSD programs an actual-to-projected-actual methodology for
determining whether a major modification has occurred; (3) allow major
stationary sources to comply with PALs to avoid having a significant
emissions increase that triggers the requirements of the NNSR and PSD
programs; (4) provide a new applicability provision in the NNSR and PSD
programs for emissions units that are designated clean units; and (5)
exclude pollution control projects from the NNSR and PSD program
definitions of ``physical change or change in the method of
operation.'' For additional information on the 2002 NSR Reform Rules,
see 67 FR 80186 (December 31, 2002) and https://www.epa.gov/nsr.
After the 2002 NSR Reform Rules were finalized and became effective
(March 3, 2003), various petitioners challenged numerous aspects of the
2002 NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45
FR 5276, August 7, 1980). On June 24, 2005, the D.C. Circuit Court of
Appeals issued a decision on the challenges to the 2002 NSR Reform
Rules. See New York v. United States, 413 F.3d 3 (D.C. Cir. 2005)
rehearing en banc denied (December 9, 2005). The Court vacated portions
of the Rules pertaining to clean units and pollution control projects;
remanded a portion of the Rules regarding recordkeeping, e.g., 40 CFR
51.165(a)(6) and 40 CFR 51.166(r)(6); and either upheld or did not
comment on the other provisions included as part of the 2002 NSR Reform
Rules. The EPA has not yet responded to the Court's remand regarding
the recordkeeping provisions. Today's action is consistent with the
decision of the D.C. Circuit Court of Appeals because New Mexico's
submittal does not include any portions of the 2002 NSR Reform Rules
that were vacated.
The 2002 NSR Reform Rules require that no later than January 2,
2006, State agencies adopt and submit revisions to their SIP permitting
programs to implement the minimum program elements of the 2002 NSR
Reform Rules. See 40 CFR 51.166(a)(6)(i) (requiring State agencies to
adopt and submit PSD SIP revisions within three years after new
amendments are published in the Federal Register). State agencies may
meet the requirements of 40 CFR part 51 and the 2002 NSR Reform Rules
with different but equivalent regulations. If, however, a State decides
not to implement any of the new applicability provisions, that State
must demonstrate that its existing program is at least as stringent as
the Federal program. As discussed in further detail below, EPA believes
the revisions contained in this submittal are approvable for inclusion
into the New Mexico SIP.
III. What Is EPA's Analysis of New Mexico's NSR Rule Revisions?
New Mexico currently has an EPA-approved NSR program for new and
modified sources, including a minor NSR preconstruction permit program,
an NNSR preconstruction permit program, and a PSD preconstruction
permit program. Today, EPA is proposing to approve revisions to New
Mexico's existing NNSR and PSD regulations in the SIP. These proposed
revisions were submitted to EPA on December 29, 2005. Copies of the
revised rules, as well as the TSD, can be obtained from the Docket, as
discussed in the ``Docket''' section above. A discussion of the
specific New Mexico rule changes that are proposed for inclusion in the
SIP is included in the TSD and summarized below.
New Mexico's regulation 20.2.74 NMAC (Permits--Prevention of
Significant Deterioration) contains the preconstruction review program
that provides for the prevention of significant deterioration of
ambient air quality as required under part C of Title I of the Act. The
program applies to major stationary sources or modifications
constructed or installed in areas designated as attainment or
unclassifiable with respect to the NAAQS.
New Mexico's permitting requirements for major sources in or
impacting upon non-attainment areas are set forth at 20.2.79 NMAC
(Permitting--Nonattainment Areas). The current New Mexico NNSR program
applies to the construction of any new major stationary source or major
modification of air pollution in a nonattainment area, as required by
part D of Title I of the Act. To receive approval to construct, a
source that is subject to this regulation must show that it will not
cause a net increase in pollution or create a delay in meeting the
NAAQS and that it will install and use control technology that achieves
the lowest achievable emission rate.
These revisions to 20.2.74 NMAC and 20.2.79 NMAC update the
existing provisions to be consistent with the Federal 2002 NSR Reform
Rules. These revisions address baseline actual emissions, actual-to-
projected-actual applicability tests, and PALs. The revisions included
in New Mexico's NNSR and PSD programs are substantively the same as the
2002 NSR Reform Rules. As part of EPA's review of New Mexico's
regulations, EPA performed a line-by-line review of the proposed
revisions and determined that the proposed revisions are consistent
with the program requirements for the preparation, adoption and
submittal of implementation plans for NSR set forth at 40 CFR 51.165
and 51.166. This review is contained in the TSD for this action. The
New Mexico rules that EPA reviewed do not incorporate the portions of
the Federal rules that were vacated by the D.C. Circuit Court of
Appeals, such as the clean unit provisions and the pollution control
projects exclusion.
[[Page 33936]]
The revised New Mexico rules include the recordkeeping provisions
set forth in the Federal rules at 40 CFR 51.165(a)(6) and 51.166(r)(6).
However, New Mexico chose to exclude the phrase ``reasonable
possibility.'' In the Federal rule, this phrase limits the
recordkeeping provisions to modifications at facilities that use the
actual-to-future-actual methodology to calculate emissions changes,
where there is a ``reasonable possibility'' that the modifications will
result in a significant emissions increase. Therefore, by leaving out
the phrase ``reasonable possibility'' from Subsection E of 20.2.74.300
NMAC and Subsection E of 20.2.79.199 NMAC, the NMED rules require all
modifications that use the actual-to-future-actual methodology to meet
the recordkeeping requirements. As noted earlier, EPA has not yet
responded to the D.C. Circuit Court of Appeals remand of the
recordkeeping provisions of EPA's 2002 NSR Reform Rules. As a result,
EPA's final decision with regard to the remand may require EPA to take
further action on this portion of NMED's rules. At present, however,
NMED's recordkeeping provisions are at least as stringent as the
Federal requirements, and are therefore approvable.
In the April 11, 2002, submittal, New Mexico revised the
definitions by removing the definition of ``complete'' from Paragraph O
of 20.2.74.7 NMAC. The current SIP contained this definition of
``complete'' to meet the requirements of 40 CFR 51.166(b)(22). Although
the definition of ``complete'' is removed from 20.2.74.7 NMAC, other
provisions in 20.2.74 NMAC address the criteria that a permit
application must address in order to be administratively complete.
Specifically, 20.2.74.301 NMAC and 20.2.74.400 NMAC include each of the
elements that an application for a PSD permit must contain in order to
be administratively complete. These provisions include and meet the
requirements of 40 CFR 51.166(n). Thus the New Mexico rules contain
provisions that ensure that PSD permit applications are
administratively complete as required by the Federal rules.
The April 11, 2002, submittal also includes revisions to
20.2.74.400 NMAC and 20.2.79.118 NMAC, which include the schedules and
procedures to determine completeness of PSD and NNSR permit
applications and the requirements for public participation and notice.
The provisions were revised to provide that the New Mexico Environment
Department (NMED) will review a permit application and determine
whether it is administratively complete within 30 days after receipt of
the application. If the application is administratively complete, the
NMED will notify the applicant of this finding by certified mail. If
the application is administratively incomplete, the NMED will inform
the applicant of such finding by certified mail and state the
additional information or points of clarifications that are necessary
to deem the application administratively complete. When the NMED
receives additional information or clarification, it will promptly
review such information and determine whether the application is
administratively complete. The procedures for determining
administrative completeness and for public participation meet the
requirements of 40 CFR 51.161 and 40 CFR 51.166(q) which specifies the
public participation requirements for PSD permits.
The April 11, 2002, submittal also revised 20.2.74.400 NMAC to
include a cross-reference to 20.2.72 NMAC. Specifically, 20.2.74.400
NMAC provides that in order for a PSD permit application to be
administratively complete, it must meet 20.2.74.301 NMAC and 20.2.72
NMAC. 20.2.74.301 NMAC includes the source information specified in 40
CFR 51.166(n) and is not substantively changed in this action. Under
20.2.72 NMAC, requirements of a complete application are identified in
Paragraph A of 20.2.72.203 NMAC. The cross-reference to Paragraph A of
20.2.72.203 NMAC contains the elements for a complete application which
has non-substantive changes to the current SIP. It also contains
additional criteria that are in addition to the completeness elements
that a permit application must contain in order to be administratively
complete. Accordingly, New Mexico retains the minimum requirements for
determining whether an application is complete that meets the Federal
requirements. The TSD contains a detailed discussion of these
completeness provisions.
IV. Does Approval of New Mexico's Rule Revisions Interfere With
Attainment, Reasonable Further Progress, or Any Other Applicable
Requirement of the Act?
The Act provides in Section 110(l) that:
Each revision to an implementation plan submitted by a State
under this Act shall be adopted by such State after reasonable
notice and public hearing. The Administrator shall not approve a
revision of a plan if the revisions would interfere with any
applicable requirement concerning attainment and reasonable further
progress (as defined in section 171), or any other applicable
requirement of the Act.
Because, as discussed above and in the TSD, the revisions to the
New Mexico NNSR and PSD programs are substantively the same as the 2002
NSR Reform Rules, without including any vacated provisions, we conclude
that these rules do not interfere with attainment, reasonable further
progress, or any other applicable requirement of the Act. See 67 FR
80186 and 68 FR 63021 for EPA's detailed explanation of the legal basis
for the 2002 NSR Reform Rules.
V. What Action Is EPA Taking Today?
For the reasons discussed above, EPA is proposing to approve the
changes made in the two rules, 20.2.74 NMAC (Permits--Prevention of
Significant Deterioration) and 20.2.79 NMAC (Permits--Nonattainment
Areas) as revised in the following SIP submittals:
The portion of the SIP revisions submitted April 11, 2002,
which revise 20.2.74 NMAC and 20.2.79 NMAC; and
The NSR Reform provisions submitted December 29, 2005.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under State law and does not impose any
additional enforceable duty beyond that required by State law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, the relationship between the Federal Government and Indian
tribes, or the distribution of power and responsibilities between the
[[Page 33937]]
Federal Government and Indian tribes, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000). This action also does not have
Federalism implications because it does not have substantial direct
effects on the States, the relationship between the national government
and the States, or the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999). This action merely proposes to approve
a State rule implementing a Federal standard, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. The EPA interprets Executive Order
13045, ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), as applying only to those
regulatory actions that concern health or safety risks such that the
analysis required under section 5-501 of the Executive Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it would approve a State
program. Executive Order 12898 (59 FR 7629 (February 16, 1994))
establishes Federal executive policy on environmental justice. Because
this rule merely proposes to approve a State rule implementing a
Federal standard, EPA lacks the discretionary authority to modify
today's regulatory decision on the basis of environmental justice
considerations. In reviewing SIP submissions, EPA's role is to approve
State choices, provided that they meet the criteria of the Act. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Act. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 11, 2007.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E7-11942 Filed 6-19-07; 8:45 am]
BILLING CODE 6560-50-P
