Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5, 62191-62200 [2012-25158]
Download as PDF
<![CDATA[
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
4a, 80b–6(4), 80b–6a, and 80b–11, unless
otherwise noted.
*
*
*
*
§ 275.206(3)–3T
*
[Amended]
2. In § 275.206(3)–3T, amend
paragraph (d) by removing the words
‘‘December 31, 2012’’ and adding in
their place ‘‘December 31, 2014’’.
By the Commission.
Dated: October 9, 2012.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2012–25116 Filed 10–11–12; 8:45 am]
BILLING CODE 8011–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2009–0710; FRL–9740–4]
Approval and Promulgation of Air
Quality Implementation Plans; New
Mexico; Infrastructure and Interstate
Transport Requirements for the 2006
PM2.5 NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
the submittal from the State of New
Mexico pursuant to the Clean Air Act
(CAA or Act) that addresses the
infrastructure elements specified in the
CAA necessary to implement, maintain,
and enforce the 2006 fine particulate
matter (PM2.5) national ambient air
quality standard (NAAQS or standard).
We are proposing to find that the
current New Mexico State
Implementation Plan (SIP) meets the
infrastructure elements for the 2006
PM2.5 NAAQS. We are also proposing to
find that the current New Mexico SIP
meets the CAA requirement which
addresses the requirement that
emissions from sources in the area do
not interfere with prevention of
significant deterioration (PSD) measures
required in the SIP of any other state,
with regard to the 2006 PM2.5 NAAQS.
DATES: Comments must be received on
or before November 13, 2012.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2009–0710, by one of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Email: Mr. Guy Donaldson at
donaldson.guy@epa.gov. Please also
send a copy by email to the person
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
listed in the FOR FURTHER INFORMATION
section below.
• Fax: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD–L), at fax
number 214–665–7263.
• 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 ID No. EPA–R06–OAR–2009–
0710. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
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 email. 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 email
comment directly to EPA without going
through www.regulations.gov, your
email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment 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 information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
CONTACT
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
62191
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
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 or Mr. Bill Deese at
214–665–7253 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: New
Mexico Environment Department
(NMED), Air Quality Bureau, 1301 Siler
Road, Building B, Santa Fe, New Mexico
87507, telephone 505–476–4300.
FOR FURTHER INFORMATION CONTACT: Mr.
John Walser, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone 214–665–7128; fax number
214–665–6762; email address
walser.john@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ means EPA.
Table of Contents
I. Background
A. What is the background for this
rulemaking?
B. What elements are required under
Section 110(a)(2)?
II. The State’s Submittal
III. EPA’s Evaluation
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. What is the background for this
rulemaking?
On October 17, 2006, we published
revised standards for PM (71 FR 61144).
For PM2.5, the annual standard of 15 mg/
m3 was retained, and the 24-hour
standard was revised to 35 mg/m3. For
PM10 the annual standard was revoked,
and the 24-hour standard (150 mg/m3)
was retained.
E:\FR\FM\12OCP1.SGM
12OCP1
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
62192
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
Under sections 110(a)(1) and (2) of the
Act, states are required to submit SIPs 1
that provide for the implementation,
maintenance, and enforcement (the
infrastructure) of a new or revised
NAAQS within three years following
the promulgation of the NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a)(2) lists the
specific infrastructure elements that
must be incorporated into the SIPs,
including for example, requirements for
air pollution control measures, and
monitoring that are designed to assure
attainment and maintenance of the
NAAQS. A table listing all 14
infrastructure elements is included in
subsection B of section I of this
proposed rulemaking. Thus states were
required to submit such SIPs for the
2006 PM2.5 NAAQS to EPA no later than
September 21, 2009.
On September 25, 2009, we issued
‘‘Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the
2006 24-Hour Fine Particle (PM2.5)
National Ambient Air Quality Standards
(NAAQS),’’ Memorandum also from
William T. Harnett, Director, AQPD,
OAQPS. Each of these guidance memos
addresses the SIP elements found in
110(a)(2). The guidance states that, to
the extent that existing SIPs already
meet the requirements, states need only
certify that fact to us.
On June 12, 2009, the Governor of
New Mexico submitted a letter
certifying that NMED has evaluated the
New Mexico SIP and found that the SIP
does satisfy all the requirements of
section 110(a)(1) and (2) for the 2006
PM2.5 NAAQS. The June 12, 2009
submittal included a table with an
explanation of how the current New
Mexico SIP meets the requirements of
section 110(a)(2) for the 2006 PM2.5
NAAQS. On July 15, 2011, we found
that New Mexico’s current SIP met all
the requirements of section 110(a)(2) for
the 1997 8-hour ozone and 1997 PM2.5
NAAQS (see 76 FR 41698). For detailed
information concerning the background
for our previous approval, please see
Docket I.D. No. EPA–R06–OAR–2009–
0647 for that rulemaking.
On July 6, 2011, WildEarth Guardians
and Sierra Club filed an amended
complaint related to EPA’s failure to
take action on the SIP submittal related
to the ‘‘infrastructure’’ requirements for
the 2006 24-hour PM2.5 NAAQS. On
1 State Implementation Plans only apply on State
lands and do not apply in Indian Country.
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
October 20, 2011, EPA entered into a
consent decree with WildEarth
Guardians and Sierra Club which
required EPA, among other things, to
complete a Federal Register notice of
the Agency’s proposed action either
approving, disapproving, or approving
in part and disapproving in part New
Mexico’s 2006 24-hour PM2.5 NAAQS
Infrastructure SIP submittal addressing
the applicable requirements of sections
110(a)(2)(A)–(H), (J)–(M), and section
110(a)(2)(D)(i) interstate transport
requirements, by September 30, 2012.
In today’s action, we are proposing to
approve New Mexico’s 2006 24-hour
PM2.5 NAAQS Infrastructure SIP
submittal addressing the applicable
requirements of sections 110(a)(2)(A)–
(H), (J)–(M), and section 110(a)(2)(D)(i)
interstate transport requirements. This
action is not approving any specific
rule, but rather proposing that New
Mexico’s already approved SIP, meets
certain CAA requirements.
Additional information: This
rulemaking will not cover four
substantive issues that are not integral
to acting on a state’s infrastructure SIP
submission: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); (ii) existing provisions related
to ‘‘director’s variance’’ or ‘‘director’s
discretion’’ that purport to permit
revisions to SIP approved emissions
limits with limited public process or
without requiring further approval by
EPA, that may be contrary to the CAA
(‘‘director’s discretion’’); (iii) existing
provisions for minor source NSR
programs that may be inconsistent with
the requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source NSR’’); and,
(iv) existing provisions for PSD
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule’’ (67 FR 80186,
December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Instead, EPA has indicated
that it has other authority to address any
such existing SIP defects in other
rulemakings, as appropriate. A detailed
rationale for why these four substantive
issues are not part of the scope of
infrastructure SIP rulemakings can be
found in EPA’s July 13, 2011, final rule
entitled, ‘‘Infrastructure SIP
Requirements for the 1997 8-hour Ozone
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
and PM2.5 National Ambient Air Quality
Standards’’ in the section entitled,
‘‘What is the scope of this final
rulemaking?’’ (see 76 FR 41076).
B. What elements are required under
section 110(a)(2)?
Section 110(a) of the Clean Air Act
(Act) requires that each state adopt and
submit to EPA, within 3 years (or such
shorter time period as the Administrator
may prescribe) after the promulgation of
a primary or secondary NAAQS or any
revision thereof, a SIP that provides for
the implementation, maintenance, and
enforcement of such NAAQS. EPA
refers to these specific submissions as
‘‘infrastructure’’ SIPs because they are
intended to address basic structural SIP
requirements for new or revised
NAAQS.
Pursuant to the September 25, 2009,
EPA guidance for addressing the SIP
infrastructure elements required under
sections 110(a)(1) and (2) for the 2006
PM2.5 NAAQS, there are 14 essential
structural elements that that must be
included in the SIP. These are listed in
Table 1 below.
2 Section 110(a)(2)(D)(ii) of the Act requires
compliance with sections 115 and 126 of the Act,
relating to international and interstate pollution
abatement, respectively. Under section 126(a)(1),
SIPs must require notification to nearby, affected
states of ‘‘major proposed new (or modified)
sources’’ in either of two instances: (1) when the
source is subject to PSD (section 126(a)(1)(A)); or (2)
when the source ‘‘may significantly contribute to
levels of air pollution in excess’’ of the NAAQS in
air quality control regions in other states (section
126(a)(1)(B)). Any new major stationary source or
major modification in an attainment or
unclassifiable area is subject to PSD. Therefore, in
attainment or unclassifiable areas, any source that
potentially falls under section 126(a)(1)(B) must
also fall under (A). Thus, to the extent that section
126(a)(1)(B) provides any requirements separate
from those in section 126(a)(1)(A), it does so only
for major proposed new or modified sources in
nonattainment areas, that is, for sources subject to
nonattainment NSR. The requirements of section
126(a)(1)(B) should therefore be addressed in states
with nonattainment areas through those states’
nonattainment NSR programs. As explained
elsewhere in this proposed rulemaking,
nonattainment NSR programs are not a subject of
this action, so EPA will not address the
requirements of section 126(a)(1)(B) in the
infrastructure SIPs.
3 Section 110(a)(2)(I) pertains to the
nonattainment planning requirements of part D,
Title I of the Act. This section is not governed by
the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local
nonattainment area controls are not due within 3
years after promulgation of a new or revised
NAAQS, but are due at the time the nonattainment
area plan requirements are due pursuant to section
172. Thus this action does not cover section
110(a)(2)(I).
E:\FR\FM\12OCP1.SGM
12OCP1
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
62193
TABLE 1—SECTION 110(a)(2) ELEMENTS REQUIRED IN SIPS
Clean Air Act citation
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Brief description
110(a)(2)(A) ...........................................................
110(a)(2)(B) ...........................................................
110(a)(2)(C) ..........................................................
110(a)(2)(D)(ii) 2 ....................................................
110(a)(2)(E) ...........................................................
110(a)(2)(F) ...........................................................
110(a)(2)(G) ..........................................................
110(a)(2)(H) ..........................................................
110(a)(2)(J) 3 .........................................................
110(a)(2)(J) ...........................................................
110(a)(2)(J) ...........................................................
110(a)(2)(K) ...........................................................
110(a)(2)(L) ...........................................................
110(a)(2)(M) ..........................................................
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Two elements identified in section
110(a)(2) are not governed by the threeyear submission deadline of section
110(a)(1) and are therefore not
addressed in this action. These elements
relate to part D of title I of the CAA, and
submissions to satisfy them are not due
within three years after promulgation of
a new or revised NAAQS, but rather are
due at the same time nonattainment area
plan requirements are due under section
172. The two elements are: (i) Section
110(a)(2)(C) to the extent it refers to
permit programs required under part D
(nonattainment New Source Review
(NSR)), and (ii) section 110(a)(2)(I),
pertaining to the nonattainment
planning requirements of part D. As a
result, this action does not address
infrastructure elements related to the
nonattainment NSR portion of section
110(a)(2)(C) or related to 110(a)(2)(I).
II. The State’s Submittal
New Mexico certified that the New
Mexico SIP contains provisions that
ensure the 2006 PM2.5 NAAQS are
implemented, maintained, and enforced
in New Mexico. On June 12, 2009, the
Governor of New Mexico submitted to
EPA the Clean Air Act Section 110(a)(1)
and (2) requirements in the current New
Mexico SIP that address the
infrastructure elements specified in the
CAA section 110(a)(2), necessary to
implement, maintain, and enforce the
2006 PM2.5 NAAQS. The June 12, 2009
submittal included a cover letter from
the Governor of New Mexico to the EPA
Region 6 Regional Administrator, an
executive summary discussion, and a
SIP matrix listing New Mexico’s
compliance with state regulations and
each section 110(a)(2) infrastructure
element for PM2.5.
We are proposing to approve the June
12, 2009 submittal since it addresses the
infrastructure SIP requirements for the
2006 PM2.5 NAAQS. A copy of the
submittal can be found in the electronic
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
Emission limits and other control measures.
Ambient air quality monitoring/data system.
Program for enforcement of control measures.
Interstate and international transport.
Adequate resources.
Stationary source monitoring system.
Emergency power.
Future SIP revisions.
Consultation with government officials.
Public notification.
Prevention of significant deterioration (PSD) and visibility protection.
Air quality modeling/data.
Permitting fees.
Consultation/participation by affected local entities.
docket for this action (Docket ID No.
EPA–R06–OAR–2009–0710).
III. EPA’s Evaluation
The New Mexico submittal addresses
the elements of Section 110(a)(2) as
described below. We provide additional
background information and a more
detailed review and analysis of the New
Mexico infrastructure SIP elements in
the Technical Support Document (TSD),
located in the electronic docket for this
proposed rulemaking.
Enforceable emission limits and other
control measures, pursuant to section
110(a)(2)(A): Section 110(a)(2)(A)
requires that all measures and other
elements in the SIP be enforceable. This
provision does not require the submittal
of regulations or emission limits
developed specifically for attaining the
2006 PM2.5 standards. Those regulations
are due later as part of attainment
demonstrations.
The New Mexico Environmental
Improvement Act, found in Chapter 74,
Article 1 of the New Mexico Statutes
Annotated 1978 (denoted NMSA 1978
74–1), created the New Mexico
Environment Department (NMED) and
the New Mexico Environmental
Improvement Board (EIB). The New
Mexico Air Quality Control Act codified
at NMSA 1978 74–2, delegates authority
to the EIB to adopt, promulgate, publish,
amend and repeal regulations consistent
with the Air Quality Control Act to
attain and maintain NAAQS and
prevent or abate air pollution. See
NMSA 1978 74–2–5(B)(1). The Air
Quality Control Act also designates the
NMED as the State’s air pollution
control agency and the Environmental
Improvement Act provides the NMED
with enforcement authority. The SIP
rule at Title 20 of the New Mexico
Administrative Code (denoted as 20
NMAC) describes NMED as the State’s
air pollution control agency and its
enforcement authority, referencing the
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
NMSA 1978 (44 FR 21019, April 9,
1979; revised 49 FR 44101, November 2,
1984; recodification approved in 62 FR
50518, September 26, 1997).
The NMED has promulgated rules to
limit and control emissions of fine
particulate matter (PM2.5), sulfur dioxide
(SO2), nitrogen oxides (NOX) and
volatile organic compounds (VOCs).4
These rules include emission limits,
control measures, permits, fees, and
compliance schedules and are found in
Title 20, chapter 2 of the NMAC 5
(denoted 20.2 NMAC): 20.2 NMAC parts
3, 5, 7–8, 10–22, 30–34, 40–41, 72–75,
and 98–99.
In this proposed action, EPA is not
proposing to approve or disapprove any
existing New Mexico SIP provisions
with regard to excess emissions during
startup, shutdown, or malfunction
(SSM) of operations at a facility.6 EPA
believes that a number of states may
have SSM SIP provisions that are
contrary to the Act and existing EPA
guidance,7 and the Agency plans to
address such state regulations in the
future. In the meantime, EPA
encourages any state having a deficient
SSM provision to take steps to correct
it as soon as possible. Similarly, in this
proposed action, EPA is not proposing
to approve or disapprove any existing
4 NO and VOCs are precursors to ozone. PM can
X
be emitted directly and secondarily formed; the
latter is the result of NOX and SO2 precursors
combining with ammonia to form ammonium
nitrate and ammonium sulfate.
5 Title 20 addresses Environmental Protection and
chapter 2 addresses Air Quality.
6 EPA approved New Mexico’s current provisions
regarding excess emissions occurring during
startup, shutdown, and malfunction (SSM) of
operations at a facility on September 14, 2009 (74
FR 46910).
7 ‘‘State Implementation Plans (SIPs): Policy
Regarding Excess Emissions During Malfunctions,
Startup, and Shutdown,’’ Memorandum from
Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and
Robert Perciasepe, Assistant Administrator for Air
and Radiation, dated August 11, 1999.
E:\FR\FM\12OCP1.SGM
12OCP1
62194
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
state rules with regard to director’s
discretion or variance provisions. EPA
believes that a number of states may
have such provisions that are contrary
to the Act and existing EPA guidance
(52 FR 45044, November 24, 1987),8 and
the Agency plans to take action in the
future to address such state regulations.
In the meantime, EPA encourages any
state having a director’s discretion or
variance provision in its SIP which is
contrary to the Act and EPA guidance to
take steps to correct the deficiency as
soon as possible.
A detailed list of the applicable 20.2
NMAC parts discussed above is
provided in the TSD. New Mexico’s SIP
clearly contains enforceable emission
limits and other control measures,
which are in the federally enforceable
SIP. EPA is proposing to find that the
New Mexico SIP meets the requirements
of section 110(a)(2)(A) with respect to
the 2006 PM2.5 NAAQS.
Ambient air quality monitoring/data
analysis system, pursuant to section
110(a)(2)(B): Section 110(a)(2)(B)
requires SIPs to include provisions for
establishment and operation of ambient
air quality monitors, collecting and
analyzing ambient air quality data, and
making these data available to EPA
upon request. The NMED operates and
maintains a statewide network of air
quality monitors; data are collected,
results are quality assured, and the data
are submitted to EPA’s Air Quality
System 9 on a regular basis. New
Mexico’s Statewide Air Quality
Surveillance Network was approved by
EPA on August 6, 1981 (46 FR 40005),
and consists of stations that measure
ambient concentrations of the six
criteria pollutants, including PM2.5. The
air quality surveillance network
undergoes annual review by EPA. On
July 7, 2011, NMED submitted its 2011
Annual Air Monitoring Network Plan
(AAMNP) that included the plans for
the 2006 PM2.5 NAAQS. EPA approved
New Mexico’s 2011 AAMNP on January
13, 2012.10 The NMED Web site
provides the PM2.5 monitor locations,
and current and historical data (https://
air.nmenv.state.nm.us/).
In summary, New Mexico meets the
requirement to establish, operate, and
maintain an ambient air monitoring
network, collect and analyze the
8 The section addressing exemptions and
variances is found on p. 45109 of the 1987
rulemaking.
9 The Air Quality System (AQS) is EPA’s
repository of ambient air quality data. AQS stores
data from over 10,000 monitors, 5000 of which are
currently active. State, Local and Tribal agencies
collect the data and submit it to AQS on a periodic
basis.
10 A copy of our approval letter is available in the
docket for this rulemaking.
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
monitoring data, and make the data
available to EPA upon request. EPA is
proposing to find that the current New
Mexico SIP meets the requirements of
section 110(a)(2)(B) with respect to the
2006 PM2.5 NAAQS.
Program for enforcement of control
measures and regulation of the
modification and construction of any
stationary source within the areas
covered by the plan as necessary to
assure that NAAQS are achieved,
including a permit program, as required
by Parts C and D, pursuant to section
110(a)(2)(C): Regarding a program for
enforcement of control measures, as
stated previously, the Air Quality
Control Act designates the NMED as the
State’s air pollution control agency and
the Environmental Improvement Act
provides the NMED with authority to
enforce the state’s environmental
quality rules. The NMED established
rules governing emissions of the criteria
pollutants and their precursors
throughout the State and these rules are
in the federally enforceable SIP. The
rules in 20.2 NMAC parts 3, 5, 7–8, 10–
22, 30–34, 40–41, 72–75, and 98–99
include allowable emission rates,
compliance, control plan requirements,
actual and allowable emissions,
monitoring and testing requirements,
recordkeeping and reporting
requirements, and control schedules.
These rules clarify the boundaries
beyond which regulated entities in New
Mexico can expect enforcement action.
To meet the requirement for having a
program for the regulation of the
modification and construction of any
stationary source within the areas
covered by the plan as necessary to
assure that national ambient air quality
standards are achieved, including a
permit program as required by Parts C
and D of the CAA, generally, the State
is required to have SIP-approved PSD,
Nonattainment, and Minor NSR
permitting programs adequate to
implement the 2006 PM2.5 NAAQS. We
are not evaluating nonattainmentrelated provisions, such as the
Nonattainment NSR (NNSR) program
required by part D in 110(a)(2)(C) and
measures for attainment required by
section 110(a)(2)(I), as part of the
infrastructure SIPs for this NAAQS
because these submittals are required
beyond the date (3 years from NAAQS
promulgation) that section 110
infrastructure SIP submittals are
required.
PSD programs apply in areas that are
meeting the NAAQS, referred to as areas
in attainment, and in areas for which
there is insufficient information to
designate as either attainment or
nonattainment, referred to as
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
unclassifiable areas. New Mexico’s PSD
program was conditionally approved
into the SIP on February 27, 1987 (52 FR
5964) and fully approved on August 15,
2011 (76 FR 41698). In addition,
revisions to New Mexico’s PSD program
were approved into the SIP on August
21, 1990 (55 FR 34013), May 2, 1991 (56
FR 20137), October 15, 1996 (61 FR
53639), March 10, 2003 (68 FR 11316),
December 24, 2003 (68 FR 74483),
September 5, 2007 (72 FR 50879),
November 26, 2010 (75 FR 72688) and
July 20, 2011 (76 FR 43149).
Additionally, on June 11, 2009 and May
23, 2011, New Mexico submitted to EPA
SIP revisions that revise the state’s PSD
and NNSR permitting regulations to
address the permitting requirements
associated with the NAAQS for 8-hour
ozone and PM2.5, respectively. EPA
approved the portions of the June 11,
2009 submittal associated with
implementing NOX as a precursor (75
FR 72688) as necessary to implement
the 1997 ozone standard. EPA has
proposed approval of the May 23, 2011
revision in a Federal Register notice
signed on September 28, 2012, as these
elements are necessary for
implementation of the PM2.5 standard.
Specific details regarding our proposed
approval of these submittals is available
in a separate rulemaking and can be
found in the Docket ID EPA–R06–OAR–
2011–0033.
PM2.5 PSD Permitting: To implement
the PSD permitting component of
section 110(a)(2)(C) for the 2006 PM2.5
NAAQS, states were required to submit
the necessary SIP revisions to EPA by
May 16, 2011 and July 20, 2012
pursuant to EPA’s NSR PM2.5 Rule
finalized May 16, 2008 (73 FR 28321)
and EPA’s PM2.5 Increment—Significant
Impact Levels (SILs)—Significant
Monitoring Concentrations (SMC) Rule
(75 FR 64864) finalized October 20,
2010, respectively. On May 23, 2011,
the Governor submitted necessary
revisions to the New Mexico SIP to
amend the PSD program to meet the
2006 PM2.5 NAAQS implementation
requirements. To address the
requirements of EPA’s May 16, 2008
NSR PM2.5 Rule, New Mexico adopted
rule revisions to establish (1) The
requirement for NSR permits to address
directly emitted PM2.5 and precursor
pollutants; (2) significant emission rates
for direct PM2.5 and precursor pollutants
(SO2 and NOX) and (3) the requirement
that condensable PM be addressed in
enforceable PM, PM10 and PM2.5
emission limits included in PSD
permits. To address the requirements of
EPA’s October 20, 2010 PM2.5 PSD
Increment—SILs—SMC Rule, New
E:\FR\FM\12OCP1.SGM
12OCP1
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Mexico updated its PSD rules to
establish the allowable PM2.5
increments,11 and the optional
screening tools called significant impact
levels (SILs), and significant monitoring
concentrations (SMCs).
In a separate rulemaking, EPA
proposes to approve the May 23, 2011
SIP revisions to New Mexico’s PSD
permitting regulations that implement
the provisions for PM2.5 permitting
because EPA found those rule revisions
adequate and necessary to implement
the 2006 PM2.5 NAAQS. We have
proposed the New Mexico PSD program
satisfies both the May 16, 2008 (73 FR
28321) and October 20, 2010 PM2.5 PSD
rulemakings (75 FR 64864, effective
December 20, 2010) and a complete
analysis is provided in the TSD for the
proposed action signed on September
28, 2012.
GHG PSD Permitting: New Mexico has
the authority to issue permits under the
SIP-approved PSD program to sources of
GHG emissions (75 FR 82536, December
30, 2010).12 The Tailoring Rule
established thresholds that phase in the
applicability of PSD requirements to
GHG sources, starting with the largest
GHG emitters, and were designed to
relieve the overwhelming administrative
burdens and costs associated with the
11 Under section 165(a)(3) of the Act, a PSD
permit applicant must demonstrate that emissions
from the proposed construction and operation of a
facility ‘‘will not cause, or contribute to, air
pollution in excess of any (A) maximum allowable
increase or maximum allowable concentration for
any pollutant * * *.’’ The ‘‘maximum allowable
increase’’ of an air pollutant that is allowed to occur
above the applicable baseline concentration for that
pollutant is known as the PSD increment. New
Mexico revised their PSD program (20.2.74 NMAC)
to include the allowable PSD increments. For
example, for Class II areas, the allowable PM2.5 PSD
increment is 4 mg/m3 annual arithmetic mean, and
9 mg/m3 24-hour maximum, as outlined in Table 4
of 20.2.74.504 NMAC.
12 On June 24, 2010, the State submitted a letter
to EPA stating that current New Mexico rules
require regulating GHGs at the existing 100/250 tpy
threshold, rather than at the higher thresholds set
in the Tailoring Rule because the State does not
have the authority to apply the meaning of the term
‘‘subject to regulation’’ established in the Tailoring
Rule. New Mexico also submitted a letter on
September 14, 2010, in response to the proposed
GHG SIP Call again confirming that EPA correctly
classified New Mexico as a State with authority to
apply PSD requirements to GHGs. The September
14, 2010, letter also identifies that NMED is
pursuing rulemaking activity to define the terms
‘‘greenhouse gas’’ and ‘‘subject to regulation.’’
These two letters are in the docket for this
rulemaking. As explained elsewhere in this
rulemaking, on November 10, 2010, New Mexico
adopted revisions to the State’s PSD rules to
implement the GHG thresholds established in EPA’s
GHG Tailoring Rule and submitted the
corresponding SIP revision to EPA on December 1,
2010. On April 14, 2011, EPA proposed approval
of New Mexico’s GHG rules submitted on December
1, 2010 (76 FR 20907). EPA approved the December
1, 2010 submittal on August 19, 2011 (76 FR
43149).
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
dramatic increase in permitting burden
that would have resulted from applying
PSD requirements to GHG emission
increases at or above only the massbased statutory thresholds of 100/250
tpy generally applicable to all PSDregulated pollutants starting on January
2, 2011. However, EPA recognized that
even after it finalized the Tailoring Rule,
many SIPs with approved PSD programs
would, until they were revised,
continue to apply PSD at the statutory
thresholds, even though the states
would not have sufficient resources to
implement the PSD program at those
levels. EPA consequently implemented
its ‘‘PSD SIP Narrowing Rule’’ and
narrowed its approval of those
provisions of previously approved SIPs
of 24 states, including New Mexico, that
apply PSD to GHG emission increases
from sources emitting GHGs below the
Tailoring Rule thresholds (75 FR 82536,
December 30, 2010). Through the PSD
SIP Narrowing Rule, EPA withdrew its
previous approvals of those programs to
the extent the SIPs apply PSD to
increases in GHG emissions from GHGemitting sources below the Tailoring
Rule thresholds. The portions of the
PSD programs regulating GHGs from
GHG-emitting sources with emission
increases at or above the Tailoring Rule
thresholds remained approved. The
effect of EPA narrowing its approval in
this manner is that the provisions of
previously approved SIPs that apply
PSD to GHG emissions increases from
sources emitting GHGs below the
Tailoring Rule thresholds have the
status of having been submitted by the
state but not yet acted upon by EPA (75
FR 82536, December 30, 2010).
On November 10, 2010, New Mexico
adopted revisions to the State’s PSD
rules to implement the GHG thresholds
established in EPA’s GHG Tailoring
Rule and submitted the corresponding
SIP revision to EPA on December 1,
2010. On April 14, 2011, EPA proposed
approval of New Mexico’s GHG rules
submitted on December 1, 2010 (76 FR
20907). On August 19, 2011, EPA
approved New Mexico’s GHG rules
submitted on December 1, 2010 (see 76
FR 43149 dated July 20, 2011).
Minor Source Permitting: Section
110(a)(2)(C) creates ‘‘a general duty on
States to include a program in their SIP
that regulates the modification and
construction of any stationary source as
necessary to assure that the NAAQS are
achieved’’ (70 FR 71612, 71677). EPA
provides states with a ‘‘broad degree of
discretion’’ in implementing their Minor
NSR programs (71 FR 48696, 48700).
The ‘‘considerably less detailed’’
regulations for minor NSR are provided
in 40 CFR 51.160 through 51.164. EPA
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
62195
has determined that New Mexico’s
Minor NSR program adopted pursuant
to section 110(a)(2)(C) of the Act
regulates emissions of all regulated air
contaminants for which there is a
NAAQS (20.2.72.200 NMAC). New
Mexico’s Minor NSR permitting
requirements are found at 20.2.72
NMAC and were approved into the SIP
on May 14, 1973 (38 FR 12702).13 In this
action, EPA is proposing to approve
New Mexico’s infrastructure SIP for the
2006 PM2.5 NAAQS with respect to the
general requirement of section
110(a)(2)(C) to include a program in the
SIP that regulates the modification and
construction of any stationary source as
necessary to assure that the NAAQS are
achieved.
It is important to stress that EPA is
not proposing to approve or disapprove
the State’s existing Minor NSR program
itself to the extent that it is inconsistent
with EPA’s regulations governing this
program. EPA believes that a number of
states may have Minor NSR provisions
that are contrary to the existing EPA
regulations for this program. EPA
intends to work with states to reconcile
state Minor NSR programs with EPA’s
regulatory provisions for the program.
The statutory requirements of section
110(a)(2)(C) provide for considerable
flexibility in designing Minor NSR
programs, and EPA believes it may be
time to revisit the regulatory
requirements for this program to give
the states an appropriate level of
flexibility to design a program that
meets their particular air quality
concerns, while assuring reasonable
consistency across the country in
protecting the NAAQS with respect to
new and modified minor sources.
Based on the above, we are proposing
to find that the current New Mexico SIP
meets the requirements of section
110(a)(2)(C) with respect to the 2006
PM2.5 NAAQS.
Interstate transport, pursuant to
section 110(a)(2)(D): Section
110(a)(2)(D) has two components,
110(a)(2)(D)(i) and 110(a)(2)(D)(ii).
Section 110(a)(2)(D)(i) requires SIPs to
include provisions prohibiting any
source or other type of emissions
activity in one state from contributing
significantly to nonattainment,
interfering with maintenance of the
NAAQS in another state, or from
interfering with measures required to
prevent significant deterioration of air
quality or to protect visibility in another
state. Section 110(a)(2)(D)(ii) requires
13 Revisions to New Mexico’s minor source
permitting program were most recently approved by
EPA into the SIP on September 26, 1997 (62 FR
50514).
E:\FR\FM\12OCP1.SGM
12OCP1
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
62196
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
SIPs to include provisions insuring
compliance with sections 115 and 126
of the Act, relating to interstate and
international pollution abatement.
PSD and interstate transport,
pursuant to section 110(a)(2)(D)(i): One
of the four elements (or prongs) in
section 110(a)(2)(D)(i) requires a SIP to
contain adequate provisions prohibiting
emissions that interfere with any other
state’s required measures to prevent
significant deterioration of its air
quality. This is the only element of
110(a)(2)(D)(i) on which EPA is
proposing action in this rulemaking.
EPA’s 2009 Guidance made
recommendations for SIP submissions
to meet this requirement with respect to
the 2006 PM2.5 NAAQS.
The 2009 Guidance states that the
PSD permitting program is the primary
measure that each state must include to
prevent interference with any other
state’s required measures to prevent
significant deterioration of its air quality
in accordance with section
110(a)(2)(D)(i)(II).
As discussed previously in this
rulemaking with regards to section
110(a)(2)(C) and in the TSD, the New
Mexico PSD program has been approved
into the SIP. New Mexico has provided
necessary revisions to its PSD program
to implement the PM2.5 standards and
EPA has proposed approval of these
revisions. Therefore, EPA is proposing
that the New Mexico SIP meets the basic
requirements for implementing the 2006
PM2.5 NAAQS. We are proposing to find
the SIP has adequately addressed
section 110(a)(2)(D)(i)(II) of the CAA, for
the element that requires that the SIP
prohibit air pollutant emissions from
sources within a state from interfering
with measures required to prevent
significant deterioration of air quality in
any other state.
The remaining three elements of
section 110(a)(2)(D)(i): (1) Do not
significantly contribute to
nonattainment of the relevant NAAQS
in any other state for the 2006 PM2.5
NAAQS; (2) interference with the
maintenance of the NAAQS in any other
state; (3) interference with measures
required to protect visibility in any
other state will be evaluated and
addressed in future rulemakings.
Interstate and international transport,
pursuant to section 110(a)(2)(D)(ii):
Section 110(a)(2)(D)(ii) of the Act
requires compliance with sections 115
and 126 of the Act, relating to interstate
and international pollution abatement.
Section 115(a) addresses endangerment
of public health or welfare in foreign
countries from pollution emitted in the
United States. Pursuant to section 115,
the Administrator has neither received
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
nor issued a formal notification that
emissions from New Mexico are
endangering public health or welfare in
a foreign country. Section 126(a) of the
Act requires new or modified sources to
notify neighboring states of potential
impacts from such sources. Under
section 126(a)(1)(A), SIPs must require
notification to nearby, affected states of
‘‘major proposed new (or modified)
sources’’ when the source is subject to
PSD. New Mexico’s SIP approved PSD
program rules at 20.2.74.400 NMAC
satisfy the requirements of section
126(a)(1)(A) by providing that the
NMED must send notice of the proposed
action on PSD permits to, among others,
‘‘any state * * * whose lands may be
affected by emissions from the source or
modification.’’ The State also has no
pending obligations under section 126
of the Act.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(D)(ii) with respect to
the 2006 PM2.5 NAAQS.
Adequate personnel, funding, and
authority, pursuant to section
110(a)(2)(E): The Department of the
Environment Act provides that the
secretary of the NMED ‘‘shall * * *
employ and fix the compensation of
those persons necessary to discharge his
duties * * *’’ See NMSA 1978 9–7A–
6(B). The NMED is also authorized to
receive State appropriations to
implement environmental programs.
See generally, NMSA 1978 9–7A. There
are federal sources of funding for the
implementation of the 2006 PM2.5
NAAQS, through, for example, the CAA
sections 103 and 105 grant funds. The
NMED receives federal funds on an
annual basis, under sections 103 and
105 of the Act, to support its air quality
programs. Additionally, the State
provides funds equal to 40 percent of
the 105 grant fees it receives.
Fees collected for the Title V and nonTitle V permit programs, and other
inspections, maintenance and renewals
required of other air pollution sources
also provide necessary funds to help
implement the State’s air programs.
Information on permitting fees is
provided in the discussion for section
110(a)(2)(L) below. The Air Quality
Control Act designates the NMED as the
State air pollution control agency for all
purposes under federal legislation
relating to air pollution and provides
the NMED with the power ‘‘to accept,
receive and administer grants or other
funds or gifts from public and private
agencies, including the federal
government, or from any person * * *’’
See NMSA 1978 74–2–5.1(F). For more
detail on funding sources, please see the
TSD.
PO 00000
Frm 00020
Fmt 4702
Sfmt 4702
The Air Quality Control Act delegates
authority to the EIB to adopt,
promulgate, publish, amend and repeal
regulations consistent with the Air
Quality Control Act to attain and
maintain national ambient air quality
standards and prevent or abate air
pollution. See NMSA 1978 74–2–
5(B)(1). The Environmental
Improvement Act provides the NMED
with the power ‘‘to enforce the rules,
regulations and orders promulgated by
the board * * *’’ See NMSA 1978 74–
1–6(F). The Air Quality Control Act also
gives the NMED the duty to ‘‘develop
and present to the environmental
improvement board or the local board a
plan for the regulation, control,
prevention or abatement of air pollution
* * *’’ and gives the EIB the authority
to adopt such a plan. See NMSA 1978
74–2–5.1(H) and NMSA 1978 74–2–
5(B)(2). Therefore, the State has
demonstrated it has adequate authority
under its rules and regulations to carry
out its SIP obligations with respect to
the 2006 PM2.5 NAAQS.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(E) with respect to the
2006 PM2.5 NAAQS.
Stationary source monitoring system,
pursuant to section 110(a)(2)(F): New
Mexico’s regulations at 20.2 NMAC
parts 5, 7–8, 10–20, 30–34, 40–41, and
72–74 require source monitoring for
compliance, recordkeeping and
reporting, and provide for enforcement
with respect to all the NAAQS and their
precursors. These source monitoring
program requirements generate data for,
among other pollutants, ozone, PM2.5,
and the precursors to these pollutants
(VOCs, NOX, and SO2).
Under the New Mexico SIP rules, the
NMED is required to analyze the
emissions data from point, area, mobile,
and biogenic (natural) sources. The
NMED uses this data to track progress
towards maintaining the NAAQS,
develop control and maintenance
strategies, identify sources and general
emission levels, and determine
compliance with New Mexico and EPA
requirements. The State’s emissions
data are available on the NMED Web
site (https://www.nmenv.state.nm.us).
These rules have been approved by EPA
into the SIP. A list of the rules and
Federal Register citations are provided
in the TSD.
There are two requirements that New
Mexico must meet regarding emissions
inventories (EIs): The EI requirement for
nonattainment areas, and the
requirement to submit annual EI data to
EPA’s National Emissions Inventory
(NEI) database. Because Nonattainment
NSR is outside the scope of this
E:\FR\FM\12OCP1.SGM
12OCP1
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
rulemaking, we are not addressing New
Mexico’s EI for nonattainment areas in
this proposed action. The NEI is EPA’s
central repository for air emissions data.
EPA published the Air Emissions
Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data (73 FR 76539). The
AERR shortened the time states are
given to report emissions data from 17
to 12 months, giving states one calendar
year to submit emissions data. All states
are required to submit a comprehensive
emissions inventory every three years
and report emissions for certain larger
sources annually through EPA’s online
Emissions Inventory System (EIS).
States report emissions data for the six
criteria pollutants and the precursors
that form them—nitrogen oxides, sulfur
dioxide, ammonia, lead, carbon
monoxide, particulate matter, and
volatile organic compounds. EPA
compiles the emissions data,
supplementing it where necessary, and
releases it to the general public through
the Web site https://www.epa.gov/ttn/
chief/eiinformation.html. The NMED is
current with their submittals to the NEI
database; the 2010 data for larger
sources was submitted to EPA in 2011.
The State’s emissions data are also
available on EPA’s AirData Web site
(https://www.epa.gov/air/data/
index.html).14
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(F) with respect to the
2006 PM2.5 NAAQS.
Emergency power, pursuant to section
110(a)(2)(G): Section 110(a)(2)(G)
requires States to provide for authority
to address activities causing imminent
and substantial endangerment to public
health, including contingency plans to
implement the emergency episode
provisions in their SIPs. The Air Quality
Control Act provides the NMED with
authority to address environmental
emergencies, and the NMED has
contingency plans to implement
emergency episode provisions in the
SIP. New Mexico promulgated the ‘‘Air
Pollution Episode Contingency Plan for
New Mexico,’’ which includes
contingency measures, and these
provisions were approved into the SIP
on August 21, 1990 (55 FR 34013).
The 2009 Infrastructure SIP Guidance
for PM2.5 recommends that a state with
at least one monitored 24-hour PM2.5
value exceeding 140.4 mg/m3 since 2006
establish an emergency episode plan
14 The AirData Web site provides access to air
pollution data for the entire United States and
produces reports and maps of air pollution data
based on criteria specified by the user.
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
and contingency measures to be
implemented should such level be
exceeded again. The 2006–2011 ambient
air quality monitoring data 15 for New
Mexico do not exceed 140.4 mg/m3. The
PM2.5 levels have consistently remained
below this level (140.4 mg/m3), and
furthermore, the State has appropriate
general emergency powers to address
PM2.5 related episodes to protect the
environment and public health. Given
the State’s low monitored PM2.5 levels,
EPA is proposing the State is not
required to submit an emergency
episode plan and contingency measures
at this time, for the 2006 PM2.5 standard.
Additional detail is provided in the
TSD.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(G) with respect to the
2006 PM2.5 NAAQS.
Future SIP revisions, pursuant to
section 110(a)(2)(H): The Air Quality
Control Act provides that the EIB shall
‘‘* * * adopt, promulgate, publish,
amend, and repeal regulations
consistent with the Air Quality Control
Act to attain and maintain national
ambient air quality standards and
prevent or abate air pollution * * *.’’
See NMSA 1978 74–2–5(B)(1). The
Environmental Improvement Act
provides that the NMED shall, ‘‘* * *
enforce the rules, regulations and orders
promulgated by the board * * *.’’ See
NMSA 1978 74–1–6(F). In addition, the
Air Quality Control Act requires the
NMED to, ‘‘* * * advise, consult,
contract with and cooperate with local
authorities, other states, the federal
government and other interested
persons or groups in regard to matters
of common interest in the field of air
quality control * * *’’ See NMSA 1978
74–2–5.2(B). Thus, New Mexico has the
authority to revise its SIP from time to
time as may be necessary to take into
account revisions of primary or
secondary NAAQS, or the availability of
improved or more expeditious methods
of attaining such standards.
Furthermore, New Mexico also has the
authority under the above provisions to
revise its SIP in the event the EPA,
pursuant to the Act, finds the SIP to be
substantially inadequate to attain the
NAAQS.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(H) with respect to the
2006 PM2.5 NAAQS.
Consultation with government
officials, pursuant to section
15 The ozone and PM data are available through
AQS. The AQS data for PM are provided in the
docket for this rulemaking.
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
62197
110(a)(2)(J): 16 The Air Quality Control
Act, as codified at NMSA 1978 74–2–6,
provides that, ‘‘no regulations or
emission control requirement shall be
adopted until after a public hearing by
the environmental improvement board
or the local board’’ and provides that,
‘‘at the hearing, the environmental
improvement board or the local board
shall allow all interested persons
reasonable opportunity to submit data,
views, or arguments orally or in writing
and to examine witnesses testifying at
the hearing.’’ See NMSA 1978 74–2–
6(B) and (D). In addition, the Air
Quality Control Act provides that the
NMED shall have the power and duty to
‘‘advise, consult, contract with and
cooperate with local authorities, other
states, the federal government and other
interested persons or groups in regard to
matters of common interest in the field
of air quality control* * *’’ See NMSA
1978 74–2–5.2(B). The State’s SIP
approved PSD rules at 20.2.74.400
NMAC mandate that the NMED shall
provide for public participation and
notification regarding permitting
applications to any other state or local
air pollution control agencies, local
government officials of the city or
county where the source will be located,
and Federal Land Managers (FLM)
whose lands may be affected by
emissions from the source or
modification. The State’s SIP approved
PSD rules at 20.2.74.403 NMAC require
the NMED to consult with FLMs
regarding permit applications for
sources impacting Class I Federal
areas.17 Furthermore, the State of New
Mexico has committed in the SIP to
consult continually with the FLMs on
the review and implementation of the
visibility program and to notify the FLM
of any advance notification or early
consultation with a major new or
modifying source prior to the
submission of the permit application.18
The State’s SIP approved Transportation
Conformity rules at 20.2.99.116 and
20.2.99.124 NMAC require that
interagency consultation and
opportunity for public involvement be
provided before making transportation
conformity determinations and before
adopting applicable SIP revisions on
16 Section 110(a)(2)(J) is divided into three
segments: Consultation with government officials;
public notification; and PSD and visibility
protection.
17 Areas designated as mandatory Class I Federal
areas consist of national parks exceeding 6,000
acres, wilderness areas and national memorial parks
exceeding 5,000 acres, and all international parks
that were in existence on August 7, 1977. CAA
section 162(a).
18 See 71 FR 4490, January 27, 2006.
E:\FR\FM\12OCP1.SGM
12OCP1
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
62198
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
transportation-related SIPs.19 These
rules are in the Federally-approved SIP.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
this portion of section 110(a)(2)(J) with
respect to the 2006 PM2.5 NAAQS.
Public notification if NAAQS are
exceeded, pursuant to section
110(a)(2)(J): Public notification begins
with the air quality forecast, which
advises the public of conditions capable
of exceeding the NAAQS (see 54 FR
9783). New Mexico’s provisions
regarding public notification of
instances or areas in which any primary
NAAQS was exceeded were approved
into the SIP on August 24, 1983 (48 FR
38466). In addition, the NMED air
monitoring Web site provides live air
quality data for each of the monitoring
stations in New Mexico.20 The Web site
also provides information on the health
effects of ozone, particulate matter, and
other criteria pollutants.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
this portion of section 110(a)(2)(J) with
respect to the 2006 PM2.5 NAAQS.
PSD and visibility protection,
pursuant to section 110(a)(2)(J): This
portion of section 110(a)(2)(J) in part
requires that a state’s SIP meet the
applicable requirements of section
110(a)(2)(C) as relating to PSD programs.
As detailed in the subsection titled
‘‘Program for enforcement of control
measures and regulation of the
modification and construction of any
stationary source * * * pursuant to
section 110(a)(2)(C)’’ of this rulemaking
and in the TSD, New Mexico’s PSD
program was conditionally approved
into the SIP on February 27, 1987 (52 FR
5964). New Mexico has since then met
the conditions of our conditional
approval, so we converted our
conditional approval into a full
approval effective August 15, 2011 (76
FR 41698). The State’s PSD program is
in the SIP (52 FR 5964, 53 FR 44191, 55
FR 43013, 56 FR 20137, 61 FR 53639,
68 FR 11316, 68 FR 74483, 72 FR 50879,
and 75 FR 72688). Furthermore, the
State revised their rules to address PM2.5
in their PSD program, and submitted
those SIP revisions on May 23, 2011 to
address the permitting requirements for
direct PM2.5 emissions and its
precursors as promulgated by EPA on
May 16, 2008 and adopting the PM2.5
increment, significant impact levels
(SILs), and significant monitoring
concentrations (SMCs) as promulgated
by EPA on October 20, 2010 (75 FR
64864). The State’s minor source
19 See
65 FR 14877.
see https://air.nmenv.state.nm.us/.
20 Please
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
permitting requirements were approved
at 38 FR 12702.
EPA approved New Mexico’s
Visibility Protection Plan and approved
a Long-Term Strategy for Visibility
Protection into the New Mexico SIP on
January 27, 2006 (71 FR 4490). The State
submitted a Regional Haze SIP to EPA
on December 1, 2003. On January 15,
2009, we published a ‘‘Finding of
Failure to Submit State Implementation
Plans Required by the 1999 regional
haze rule’’ (74 FR 2392). We found that
New Mexico had failed to submit for our
review and approval a complete SIP for
improving visibility in the nation’s
national parks and wilderness areas by
the required date of December 17, 2007.
Specifically, we found that New Mexico
had failed to submit the plan elements
required by 40 CFR 51.309(g),21 and the
plan element required by 40 CFR
51.309(d)(4), which requires BART for
stationary source emissions of NOX and
PM under either 40 CFR 51.308(e)(1) or
51.308(e)(2).22 On January 13, 2009,
New Mexico submitted a letter to EPA,
clarifying that they intended to submit
a Regional Haze (RH) SIP revision in
2009 to address the requirements of 40
CFR 51.309(d)(4) and 40 CFR
51.309(g).23
On September 17, 2007, New Mexico
submitted a SIP revision addressing the
‘‘good neighbor’’ requirement of section
110(a)(2)(D)(i) of the CAA for the 1997
8-hour ozone and 1997 PM2.5 NAAQS.
On August 22, 2011, EPA disapproved
the New Mexico Interstate Transport SIP
provisions that address the requirement
of 110(a)(2)(D)(II) that emissions from
New Mexico sources do not interfere
with measures required in the SIP of
any other state under part C of the CAA
to protect visibility. EPA found that
New Mexico sources, except the San
Juan Generating Station, are sufficiently
controlled to eliminate interference with
the visibility programs of other states.
Therefore, EPA finalized a Federal
Implementation Plan (FIP) for New
Mexico to address emissions from one
source: The San Juan Generating Station
(SJGS) coal-fired power plant (76 FR
52388, effective September 21, 2011).
The FIP addresses the RH Best Available
Retrofit Technology (BART)
requirements for NOX for the SJGS. In
that action, EPA found that the other
21 40 CFR 51.309(g) concerns the reasonable
progress requirements for areas other than the 16
Class I areas covered by the Grand Canyon
Visibility Transport Commission Report.
22 New Mexico has the option to submit a
Regional Haze SIP under either section 51.308 or
section 51.309.
23 January 13, 2009, letter from Bill Richardson,
Governor of New Mexico, to Mayor Richard Greene,
Regional Administrator, EPA Region 6. This letter
is in the docket for this rulemaking.
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
New Mexico pollution sources are
adequately controlled to eliminate
interference with the clean air visibility
programs of other states.
On July 5, 2011, New Mexico
submitted a revised Regional Haze (RH)
SIP to the EPA. EPA has reviewed the
submittal and proposed approval of the
submittal, except for the submitted
nitrogen oxides NOX Best Available
Retrofit Technology (BART)
determination for the San Juan
Generating Station, on June 15, 2012 (77
FR 36044).
With regard to the applicable
requirements for visibility protection,
EPA recognizes that States are subject to
visibility and regional haze program
requirements under Part C of the Act
(which includes sections 169A and
169B). In the event of the establishment
of a new NAAQS, however, the
visibility and regional haze program
requirements under part C do not
change. Thus, we find that there is no
new visibility obligation ‘‘triggered’’
under section 110(a)(2)(J) when a new
NAAQS becomes effective; and as such,
visibility protection requirements are
not relevant for purposes of this action.
This would be the case even in the
event a secondary PM2.5 NAAQS for
visibility is established, because this
NAAQS would not affect visibility
requirements under part C.
EPA is therefore proposing to find
that the New Mexico SIP meets the
requirements of this portion of section
110(a)(2)(J) with respect to the 2006
PM2.5 NAAQS.
Air quality modeling and submission
of data, pursuant to section 110(a)(2)(K):
The Air Quality Control Act authorizes
NMED to ‘‘develop facts and make
investigations and studies,’’ thereby
providing for the functions of
environmental air quality assessment.
As an example, New Mexico has the
ability to perform modeling for the
primary and secondary PM2.5 standards
on a case-by-case permit basis
consistent with their SIP-approved PSD
rules and consistent with EPA guidance
and 40 CFR part 51, Appendix W,
Guideline on Air Quality Models.
This section of the Act also requires
that a SIP provide for the submission of
data related to such air quality modeling
to the EPA upon request. The Air
Quality Control Act authorizes NMED to
cooperate with the federal government
in regard to matters of common interest
in the field of air quality control,
thereby allowing it to make this
submission to EPA. See NMSA 1978 74–
2–5.2(B).
EPA is proposing to find that the New
Mexico SIP meets the requirements of
E:\FR\FM\12OCP1.SGM
12OCP1
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
section 110(a)(2)(K) with respect to the
2006 PM2.5 NAAQS.
Permitting fees, pursuant to section
110(a)(2)(L): The Air Quality Control
Act provides the EIB with the legal
authority for establishing an emission
fee schedule and a construction permit
fee schedule to recover the reasonable
costs of acting on permit applications,
implementing, and enforcing permits.
See NMSA 1978 74–2–7. New Mexico’s
Permit Fee System was approved by
EPA on July 17, 1991 (56 FR 32511).
New Mexico’s Permit Fee System
implements a fee system for all
preconstruction air permits issued by
NMED. New Mexico’s regulations for
construction permit fees are found at
20.2.75 NMAC. The State’s Title V
program and associated fees legally are
not part of the SIP, but were approved
by EPA on November 26, 1996 (61 FR
60032) as part of the New Mexico Title
V Program.
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(L) with respect to the
2006 PM2.5 NAAQS.
Consultation/participation by affected
local entities, pursuant to section
110(a)(2)(M): As indicated above, the
Air Quality Control Act provides that,
‘‘no regulations or emission control
requirement shall be adopted until after
a public hearing by the environmental
improvement board or the local board’’
and provides that, ‘‘at the hearing, the
environmental improvement board or
the local board shall allow all interested
persons reasonable opportunity to
submit data, views, or arguments orally
or in writing and to examine witnesses
testifying at the hearing.’’ See NMSA
1978 74–2–6(B) and (D). In addition, the
Air Quality Control Act provides that
the NMED shall have the power and
duty to ‘‘advise, consult, contract with
and cooperate with local authorities,
other states, the federal government and
other interested persons or groups in
regard to matters of common interest in
the field of air quality control* * *’’
See NMSA 1978 74–2–5.2(B). New
Mexico’s SIP approved PSD regulations
at 20.2.74.400 NMAC mandate that the
NMED shall provide for public
participation and notification regarding
permitting applications to any other
state or local air pollution control
agencies, local government officials of
the city or county where the source will
be located, and FLMs whose lands may
be affected by emissions from the source
or modification. New Mexico’s SIP
approved Transportation Conformity
regulations at 20.2.99.116 and
20.2.99.124 NMAC require that
interagency consultation and
opportunity for public involvement be
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
provided before making transportation
conformity determinations and before
adopting applicable SIP revisions on
transportation-related SIPs.24
EPA is proposing to find that the New
Mexico SIP meets the requirements of
section 110(a)(2)(M) with respect to the
2006 PM2.5 NAAQS.
IV. Proposed Action
We are proposing to approve the
submittal provided by the State of New
Mexico to demonstrate that the New
Mexico SIP meets the requirements of
Section 110(a)(1) and (2) of the Act for
the 2006 PM2.5 NAAQS. We are
proposing to find that the current New
Mexico SIP meets the infrastructure
elements listed below:
Emission limits and other control
measures (110(a)(2)(A) of the Act);
Ambient air quality monitoring/data
system (110(a)(2)(B) of the Act);
Program for enforcement of control
measures (110(a)(2)(C) of the Act);
Interstate and international transport
(110(a)(2)(D)(ii) of the Act);
Adequate resources (110(a)(2)(E) of the
Act);
Stationary source monitoring system
(110(a)(2)(F) of the Act);
Emergency power (110(a)(2)(G) of the
Act);
Future SIP revisions (110(a)(2)(H) of the
Act);
Consultation with government officials
(110(a)(2)(J) of the Act);
Public notification (110(a)(2)(J) of the
Act);
Prevention of significant deterioration
and visibility protection (110(a)(2)(J)
of the Act);
Air quality modeling data (110(a)(2)(K)
of the Act);
Permitting fees (110(a)(2)(L) of the Act);
and
Consultation/participation by affected
local entities (110(a)(2)(M) of the Act).
We are also proposing to approve the
portion of the New Mexico submittal
that addresses the requirement of
section (110)(a)(2)(D)(i)(II) of the Act
that emissions from sources in New
Mexico do not interfere with measures
required in the SIP of any other state
under part C of the Act regarding PSD
for the 2006 PM2.5 NAAQS.
EPA is proposing these actions in
accordance with section 110 and part C
of the Act and EPA’s regulations and
consistent with EPA guidance. EPA’s
proposed approval does not extend to
areas within Indian country as defined
in 18 U.S.C. 1151. EPA, or eligible
Indian tribes, as appropriate, will retain
jurisdiction and responsibilities under
the Clean Air Act, Section 110 within
Indian country.
24 See
PO 00000
65 FR 14877.
Frm 00023
Fmt 4702
Sfmt 4702
62199
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
E:\FR\FM\12OCP1.SGM
12OCP1
62200
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 28, 2012.
Ron Curry,
Regional Administrator, Region 6.
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2010–0019(b); FRL–9741–
1]
Approval and Promulgation of
Implementation Plans; North Carolina
Portion of the Charlotte-Gastonia-Rock
Hill, North Carolina-South Carolina
1997 8-Hour Ozone Nonattainment
Area; Reasonable Further Progress
Plan
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
state implementation plan revisions,
submitted by the North Carolina
Department of Environment and Natural
Resources, on June 15, 2007, and
November 30, 2009, to address the
reasonable further progress (RFP) plan
requirements for the 1997 8-hour ozone
national ambient air quality standards
(NAAQS) for the North Carolina portion
of the bi-state Charlotte-Gastonia-Rock
Hill 1997 8-hour ozone nonattainment
area. The Charlotte-Gastonia-Rock Hill,
North Carolina-South Carolina 1997 8hour ozone nonattainment area
(hereafter referred to as the ‘‘bi-state
Charlotte Area’’) is comprised of
Cabarrus, Gaston, Lincoln,
Mecklenburg, Rowan, Union and a
portion of Iredell (Davidson and Coddle
Creek Townships) Counties in North
Carolina; and a portion of York County
in South Carolina. EPA is also providing
the status of its adequacy determination
for the motor vehicle emissions budgets
(MVEB) for volatile organic compounds
and nitrogen oxides that were included
in North Carolina’s RFP plan. Further,
EPA is proposing to approve these
MVEB. This proposed action is being
wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
VerDate Mar<15>2010
13:58 Oct 11, 2012
Jkt 229001
Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2010–0019 by one of the following
methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4–RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: ‘‘EPA–R04–OAR–2010–
0019,’’ Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960.
5. Hand Delivery or Courier: Lynorae
Benjamin, Chief, Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Such
deliveries are only accepted during the
Regional Office’s normal hours of
operation. The Regional Office’s official
hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal
holidays.
Please see the direct final rule which is
located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.
ADDRESSES:
[FR Doc. 2012–25158 Filed 10–11–12; 8:45 am]
SUMMARY:
taken pursuant to section 110 of the
Clean Air Act. EPA will take action on
South Carolina’s RFP plan for its
portion of the bi-state Charlotte Area, in
a separate action. In the Final Rules
Section of this Federal Register, EPA is
approving the State’s implementation
plan revisions as a direct final rule
without prior proposal because the
Agency views these submittals as
noncontroversial and anticipates no
adverse comments.
DATES: Written comments must be
received on or before November 13,
2012.
Sara
Waterson, Regulatory Development
Section, Air Planning Branch, Air,
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street
SW., Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9061.
Ms. Waterson can be reached via
electronic mail at
waterson.sara@epa.gov.
FOR FURTHER INFORMATION CONTACT:
On March
12, 2008, EPA issued a revised ozone
NAAQS. See 73 FR 16436. The current
action, however, is being taken to
address requirements under the 1997 8hour ozone NAAQS. Requirements for
SUPPLEMENTARY INFORMATION:
PO 00000
Frm 00024
Fmt 4702
Sfmt 4702
the North Carolina portion of the bistate Charlotte Area under the 2008
ozone NAAQS will be addressed in the
future. For additional information see
the direct final rule which is published
in the Rules Section of this Federal
Register. A detailed rationale for the
approval of the RFP plan requirements
for the 1997 8-hour ozone NAAQS is set
forth in the direct final rule. If no
adverse comments are received in
response to this rule, no further activity
is contemplated. If EPA receives adverse
comments, the direct final rule will be
withdrawn and all public comments
received will be addressed in a
subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period on this
document. Any parties interested in
commenting on the matters being
proposed for approval into the North
Carolina SIP today should do so at this
time.
Dated: October 2, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–25188 Filed 10–11–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2011–0033; FRL–9740–5]
Approval and Promulgation of
Implementation Plans; New Mexico;
Revisions to the New Source Review
(NSR) State Implementation Plan (SIP);
Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NNSR) Permitting
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
revisions to the New Mexico SIP to
update the New Mexico NNSR and PSD
SIP permitting programs consistent with
federal requirements. EPA proposes to
find that these revisions to the New
Mexico SIP meet the Federal Clean Air
Act (the Act or CAA) and EPA
regulations, and are consistent with EPA
policies. New Mexico submitted the
PSD and NNSR SIP permitting revisions
in two SIP submittals on June 11, 2009,
and May 23, 2011. EPA is proposing this
action under section 110 and parts C
and D of the Act.
DATES: Comments must be received on
or before November 13, 2012.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
SUMMARY:
E:\FR\FM\12OCP1.SGM
12OCP1
]]>Agencies
[Federal Register Volume 77, Number 198 (Friday, October 12, 2012)]
[Proposed Rules]
[Pages 62191-62200]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25158]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2009-0710; FRL-9740-4]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the submittal from the State of
New Mexico pursuant to the Clean Air Act (CAA or Act) that addresses
the infrastructure elements specified in the CAA necessary to
implement, maintain, and enforce the 2006 fine particulate matter
(PM2.5) national ambient air quality standard (NAAQS or
standard). We are proposing to find that the current New Mexico State
Implementation Plan (SIP) meets the infrastructure elements for the
2006 PM2.5 NAAQS. We are also proposing to find that the
current New Mexico SIP meets the CAA requirement which addresses the
requirement that emissions from sources in the area do not interfere
with prevention of significant deterioration (PSD) measures required in
the SIP of any other state, with regard to the 2006 PM2.5
NAAQS.
DATES: Comments must be received on or before November 13, 2012.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2009-0710, by one of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments.
Email: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please
also send a copy by email 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 214-665-7263.
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 ID No. EPA-R06-OAR-
2009-0710. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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 email. 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 email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment 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
information about EPA's public docket visit the EPA Docket Center
homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
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 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 or Mr. Bill Deese at 214-665-7253 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: New Mexico Environment
Department (NMED), Air Quality Bureau, 1301 Siler Road, Building B,
Santa Fe, New Mexico 87507, telephone 505-476-4300.
FOR FURTHER INFORMATION CONTACT: Mr. John Walser, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-7128; fax number
214-665-6762; email address walser.john@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.
Table of Contents
I. Background
A. What is the background for this rulemaking?
B. What elements are required under Section 110(a)(2)?
II. The State's Submittal
III. EPA's Evaluation
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. What is the background for this rulemaking?
On October 17, 2006, we published revised standards for PM (71 FR
61144). For PM2.5, the annual standard of 15 [mu]g/m\3\ was
retained, and the 24-hour standard was revised to 35 [mu]g/m\3\. For
PM10 the annual standard was revoked, and the 24-hour
standard (150 [mu]g/m\3\) was retained.
[[Page 62192]]
Under sections 110(a)(1) and (2) of the Act, states are required to
submit SIPs \1\ that provide for the implementation, maintenance, and
enforcement (the infrastructure) of a new or revised NAAQS within three
years following the promulgation of the NAAQS, or within such shorter
period as EPA may prescribe. Section 110(a)(2) lists the specific
infrastructure elements that must be incorporated into the SIPs,
including for example, requirements for air pollution control measures,
and monitoring that are designed to assure attainment and maintenance
of the NAAQS. A table listing all 14 infrastructure elements is
included in subsection B of section I of this proposed rulemaking. Thus
states were required to submit such SIPs for the 2006 PM2.5
NAAQS to EPA no later than September 21, 2009.
---------------------------------------------------------------------------
\1\ State Implementation Plans only apply on State lands and do
not apply in Indian Country.
---------------------------------------------------------------------------
On September 25, 2009, we issued ``Guidance on SIP Elements
Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine
Particle (PM2.5) National Ambient Air Quality Standards
(NAAQS),'' Memorandum also from William T. Harnett, Director, AQPD,
OAQPS. Each of these guidance memos addresses the SIP elements found in
110(a)(2). The guidance states that, to the extent that existing SIPs
already meet the requirements, states need only certify that fact to
us.
On June 12, 2009, the Governor of New Mexico submitted a letter
certifying that NMED has evaluated the New Mexico SIP and found that
the SIP does satisfy all the requirements of section 110(a)(1) and (2)
for the 2006 PM2.5 NAAQS. The June 12, 2009 submittal
included a table with an explanation of how the current New Mexico SIP
meets the requirements of section 110(a)(2) for the 2006
PM2.5 NAAQS. On July 15, 2011, we found that New Mexico's
current SIP met all the requirements of section 110(a)(2) for the 1997
8-hour ozone and 1997 PM2.5 NAAQS (see 76 FR 41698). For
detailed information concerning the background for our previous
approval, please see Docket I.D. No. EPA-R06-OAR-2009-0647 for that
rulemaking.
On July 6, 2011, WildEarth Guardians and Sierra Club filed an
amended complaint related to EPA's failure to take action on the SIP
submittal related to the ``infrastructure'' requirements for the 2006
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a
consent decree with WildEarth Guardians and Sierra Club which required
EPA, among other things, to complete a Federal Register notice of the
Agency's proposed action either approving, disapproving, or approving
in part and disapproving in part New Mexico's 2006 24-hour
PM2.5 NAAQS Infrastructure SIP submittal addressing the
applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), and
section 110(a)(2)(D)(i) interstate transport requirements, by September
30, 2012.
In today's action, we are proposing to approve New Mexico's 2006
24-hour PM2.5 NAAQS Infrastructure SIP submittal addressing
the applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), and
section 110(a)(2)(D)(i) interstate transport requirements. This action
is not approving any specific rule, but rather proposing that New
Mexico's already approved SIP, meets certain CAA requirements.
Additional information: This rulemaking will not cover four
substantive issues that are not integral to acting on a state's
infrastructure SIP submission: (i) Existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
at sources, that may be contrary to the CAA and EPA's policies
addressing such excess emissions (``SSM''); (ii) existing provisions
related to ``director's variance'' or ``director's discretion'' that
purport to permit revisions to SIP approved emissions limits with
limited public process or without requiring further approval by EPA,
that may be contrary to the CAA (``director's discretion''); (iii)
existing provisions for minor source NSR programs that may be
inconsistent with the requirements of the CAA and EPA's regulations
that pertain to such programs (``minor source NSR''); and, (iv)
existing provisions for PSD programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule'' (67 FR
80186, December 31, 2002), as amended by 72 FR 32526 (June 13, 2007)
(``NSR Reform''). Instead, EPA has indicated that it has other
authority to address any such existing SIP defects in other
rulemakings, as appropriate. A detailed rationale for why these four
substantive issues are not part of the scope of infrastructure SIP
rulemakings can be found in EPA's July 13, 2011, final rule entitled,
``Infrastructure SIP Requirements for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' in the
section entitled, ``What is the scope of this final rulemaking?'' (see
76 FR 41076).
B. What elements are required under section 110(a)(2)?
Section 110(a) of the Clean Air Act (Act) requires that each state
adopt and submit to EPA, within 3 years (or such shorter time period as
the Administrator may prescribe) after the promulgation of a primary or
secondary NAAQS or any revision thereof, a SIP that provides for the
implementation, maintenance, and enforcement of such NAAQS. EPA refers
to these specific submissions as ``infrastructure'' SIPs because they
are intended to address basic structural SIP requirements for new or
revised NAAQS.
Pursuant to the September 25, 2009, EPA guidance for addressing the
SIP infrastructure elements required under sections 110(a)(1) and (2)
for the 2006 PM2.5 NAAQS, there are 14 essential structural
elements that that must be included in the SIP. These are listed in
Table 1 below.
---------------------------------------------------------------------------
\2\ Section 110(a)(2)(D)(ii) of the Act requires compliance with
sections 115 and 126 of the Act, relating to international and
interstate pollution abatement, respectively. Under section
126(a)(1), SIPs must require notification to nearby, affected states
of ``major proposed new (or modified) sources'' in either of two
instances: (1) when the source is subject to PSD (section
126(a)(1)(A)); or (2) when the source ``may significantly contribute
to levels of air pollution in excess'' of the NAAQS in air quality
control regions in other states (section 126(a)(1)(B)). Any new
major stationary source or major modification in an attainment or
unclassifiable area is subject to PSD. Therefore, in attainment or
unclassifiable areas, any source that potentially falls under
section 126(a)(1)(B) must also fall under (A). Thus, to the extent
that section 126(a)(1)(B) provides any requirements separate from
those in section 126(a)(1)(A), it does so only for major proposed
new or modified sources in nonattainment areas, that is, for sources
subject to nonattainment NSR. The requirements of section
126(a)(1)(B) should therefore be addressed in states with
nonattainment areas through those states' nonattainment NSR
programs. As explained elsewhere in this proposed rulemaking,
nonattainment NSR programs are not a subject of this action, so EPA
will not address the requirements of section 126(a)(1)(B) in the
infrastructure SIPs.
\3\ Section 110(a)(2)(I) pertains to the nonattainment planning
requirements of part D, Title I of the Act. This section is not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but are due at the time the nonattainment area plan
requirements are due pursuant to section 172. Thus this action does
not cover section 110(a)(2)(I).
[[Page 62193]]
Table 1--Section 110(a)(2) Elements Required in SIPs
------------------------------------------------------------------------
Clean Air Act citation Brief description
------------------------------------------------------------------------
Section 110(a)(2)(A).............. Emission limits and other control
measures.
Section 110(a)(2)(B).............. Ambient air quality monitoring/data
system.
Section 110(a)(2)(C).............. Program for enforcement of control
measures.
Section 110(a)(2)(D)(ii) \2\...... Interstate and international
transport.
Section 110(a)(2)(E).............. Adequate resources.
Section 110(a)(2)(F).............. Stationary source monitoring system.
Section 110(a)(2)(G).............. Emergency power.
Section 110(a)(2)(H).............. Future SIP revisions.
Section 110(a)(2)(J) \3\.......... Consultation with government
officials.
Section 110(a)(2)(J).............. Public notification.
Section 110(a)(2)(J).............. Prevention of significant
deterioration (PSD) and visibility
protection.
Section 110(a)(2)(K).............. Air quality modeling/data.
Section 110(a)(2)(L).............. Permitting fees.
Section 110(a)(2)(M).............. Consultation/participation by
affected local entities.
------------------------------------------------------------------------
Two elements identified in section 110(a)(2) are not governed by
the three-year submission deadline of section 110(a)(1) and are
therefore not addressed in this action. These elements relate to part D
of title I of the CAA, and submissions to satisfy them are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the same time nonattainment area plan requirements
are due under section 172. The two elements are: (i) Section
110(a)(2)(C) to the extent it refers to permit programs required under
part D (nonattainment New Source Review (NSR)), and (ii) section
110(a)(2)(I), pertaining to the nonattainment planning requirements of
part D. As a result, this action does not address infrastructure
elements related to the nonattainment NSR portion of section
110(a)(2)(C) or related to 110(a)(2)(I).
II. The State's Submittal
New Mexico certified that the New Mexico SIP contains provisions
that ensure the 2006 PM2.5 NAAQS are implemented,
maintained, and enforced in New Mexico. On June 12, 2009, the Governor
of New Mexico submitted to EPA the Clean Air Act Section 110(a)(1) and
(2) requirements in the current New Mexico SIP that address the
infrastructure elements specified in the CAA section 110(a)(2),
necessary to implement, maintain, and enforce the 2006 PM2.5
NAAQS. The June 12, 2009 submittal included a cover letter from the
Governor of New Mexico to the EPA Region 6 Regional Administrator, an
executive summary discussion, and a SIP matrix listing New Mexico's
compliance with state regulations and each section 110(a)(2)
infrastructure element for PM2.5.
We are proposing to approve the June 12, 2009 submittal since it
addresses the infrastructure SIP requirements for the 2006
PM2.5 NAAQS. A copy of the submittal can be found in the
electronic docket for this action (Docket ID No. EPA-R06-OAR-2009-
0710).
III. EPA's Evaluation
The New Mexico submittal addresses the elements of Section
110(a)(2) as described below. We provide additional background
information and a more detailed review and analysis of the New Mexico
infrastructure SIP elements in the Technical Support Document (TSD),
located in the electronic docket for this proposed rulemaking.
Enforceable emission limits and other control measures, pursuant to
section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures
and other elements in the SIP be enforceable. This provision does not
require the submittal of regulations or emission limits developed
specifically for attaining the 2006 PM2.5 standards. Those
regulations are due later as part of attainment demonstrations.
The New Mexico Environmental Improvement Act, found in Chapter 74,
Article 1 of the New Mexico Statutes Annotated 1978 (denoted NMSA 1978
74-1), created the New Mexico Environment Department (NMED) and the New
Mexico Environmental Improvement Board (EIB). The New Mexico Air
Quality Control Act codified at NMSA 1978 74-2, delegates authority to
the EIB to adopt, promulgate, publish, amend and repeal regulations
consistent with the Air Quality Control Act to attain and maintain
NAAQS and prevent or abate air pollution. See NMSA 1978 74-2-5(B)(1).
The Air Quality Control Act also designates the NMED as the State's air
pollution control agency and the Environmental Improvement Act provides
the NMED with enforcement authority. The SIP rule at Title 20 of the
New Mexico Administrative Code (denoted as 20 NMAC) describes NMED as
the State's air pollution control agency and its enforcement authority,
referencing the NMSA 1978 (44 FR 21019, April 9, 1979; revised 49 FR
44101, November 2, 1984; recodification approved in 62 FR 50518,
September 26, 1997).
The NMED has promulgated rules to limit and control emissions of
fine particulate matter (PM2.5), sulfur dioxide
(SO2), nitrogen oxides (NOX) and volatile organic
compounds (VOCs).\4\ These rules include emission limits, control
measures, permits, fees, and compliance schedules and are found in
Title 20, chapter 2 of the NMAC \5\ (denoted 20.2 NMAC): 20.2 NMAC
parts 3, 5, 7-8, 10-22, 30-34, 40-41, 72-75, and 98-99.
---------------------------------------------------------------------------
\4\ NOX and VOCs are precursors to ozone. PM can be
emitted directly and secondarily formed; the latter is the result of
NOX and SO2 precursors combining with ammonia
to form ammonium nitrate and ammonium sulfate.
\5\ Title 20 addresses Environmental Protection and chapter 2
addresses Air Quality.
---------------------------------------------------------------------------
In this proposed action, EPA is not proposing to approve or
disapprove any existing New Mexico SIP provisions with regard to excess
emissions during startup, shutdown, or malfunction (SSM) of operations
at a facility.\6\ EPA believes that a number of states may have SSM SIP
provisions that are contrary to the Act and existing EPA guidance,\7\
and the Agency plans to address such state regulations in the future.
In the meantime, EPA encourages any state having a deficient SSM
provision to take steps to correct it as soon as possible. Similarly,
in this proposed action, EPA is not proposing to approve or disapprove
any existing
[[Page 62194]]
state rules with regard to director's discretion or variance
provisions. EPA believes that a number of states may have such
provisions that are contrary to the Act and existing EPA guidance (52
FR 45044, November 24, 1987),\8\ and the Agency plans to take action in
the future to address such state regulations. In the meantime, EPA
encourages any state having a director's discretion or variance
provision in its SIP which is contrary to the Act and EPA guidance to
take steps to correct the deficiency as soon as possible.
---------------------------------------------------------------------------
\6\ EPA approved New Mexico's current provisions regarding
excess emissions occurring during startup, shutdown, and malfunction
(SSM) of operations at a facility on September 14, 2009 (74 FR
46910).
\7\ ``State Implementation Plans (SIPs): Policy Regarding Excess
Emissions During Malfunctions, Startup, and Shutdown,'' Memorandum
from Steven A. Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, dated August 11, 1999.
\8\ The section addressing exemptions and variances is found on
p. 45109 of the 1987 rulemaking.
---------------------------------------------------------------------------
A detailed list of the applicable 20.2 NMAC parts discussed above
is provided in the TSD. New Mexico's SIP clearly contains enforceable
emission limits and other control measures, which are in the federally
enforceable SIP. EPA is proposing to find that the New Mexico SIP meets
the requirements of section 110(a)(2)(A) with respect to the 2006
PM2.5 NAAQS.
Ambient air quality monitoring/data analysis system, pursuant to
section 110(a)(2)(B): Section 110(a)(2)(B) requires SIPs to include
provisions for establishment and operation of ambient air quality
monitors, collecting and analyzing ambient air quality data, and making
these data available to EPA upon request. The NMED operates and
maintains a statewide network of air quality monitors; data are
collected, results are quality assured, and the data are submitted to
EPA's Air Quality System \9\ on a regular basis. New Mexico's Statewide
Air Quality Surveillance Network was approved by EPA on August 6, 1981
(46 FR 40005), and consists of stations that measure ambient
concentrations of the six criteria pollutants, including
PM2.5. The air quality surveillance network undergoes annual
review by EPA. On July 7, 2011, NMED submitted its 2011 Annual Air
Monitoring Network Plan (AAMNP) that included the plans for the 2006
PM2.5 NAAQS. EPA approved New Mexico's 2011 AAMNP on January
13, 2012.\10\ The NMED Web site provides the PM2.5 monitor
locations, and current and historical data (https://air.nmenv.state.nm.us/).
---------------------------------------------------------------------------
\9\ The Air Quality System (AQS) is EPA's repository of ambient
air quality data. AQS stores data from over 10,000 monitors, 5000 of
which are currently active. State, Local and Tribal agencies collect
the data and submit it to AQS on a periodic basis.
\10\ A copy of our approval letter is available in the docket
for this rulemaking.
---------------------------------------------------------------------------
In summary, New Mexico meets the requirement to establish, operate,
and maintain an ambient air monitoring network, collect and analyze the
monitoring data, and make the data available to EPA upon request. EPA
is proposing to find that the current New Mexico SIP meets the
requirements of section 110(a)(2)(B) with respect to the 2006
PM2.5 NAAQS.
Program for enforcement of control measures and regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that NAAQS are achieved,
including a permit program, as required by Parts C and D, pursuant to
section 110(a)(2)(C): Regarding a program for enforcement of control
measures, as stated previously, the Air Quality Control Act designates
the NMED as the State's air pollution control agency and the
Environmental Improvement Act provides the NMED with authority to
enforce the state's environmental quality rules. The NMED established
rules governing emissions of the criteria pollutants and their
precursors throughout the State and these rules are in the federally
enforceable SIP. The rules in 20.2 NMAC parts 3, 5, 7-8, 10-22, 30-34,
40-41, 72-75, and 98-99 include allowable emission rates, compliance,
control plan requirements, actual and allowable emissions, monitoring
and testing requirements, recordkeeping and reporting requirements, and
control schedules. These rules clarify the boundaries beyond which
regulated entities in New Mexico can expect enforcement action.
To meet the requirement for having a program for the regulation of
the modification and construction of any stationary source within the
areas covered by the plan as necessary to assure that national ambient
air quality standards are achieved, including a permit program as
required by Parts C and D of the CAA, generally, the State is required
to have SIP-approved PSD, Nonattainment, and Minor NSR permitting
programs adequate to implement the 2006 PM2.5 NAAQS. We are
not evaluating nonattainment-related provisions, such as the
Nonattainment NSR (NNSR) program required by part D in 110(a)(2)(C) and
measures for attainment required by section 110(a)(2)(I), as part of
the infrastructure SIPs for this NAAQS because these submittals are
required beyond the date (3 years from NAAQS promulgation) that section
110 infrastructure SIP submittals are required.
PSD programs apply in areas that are meeting the NAAQS, referred to
as areas in attainment, and in areas for which there is insufficient
information to designate as either attainment or nonattainment,
referred to as unclassifiable areas. New Mexico's PSD program was
conditionally approved into the SIP on February 27, 1987 (52 FR 5964)
and fully approved on August 15, 2011 (76 FR 41698). In addition,
revisions to New Mexico's PSD program were approved into the SIP on
August 21, 1990 (55 FR 34013), May 2, 1991 (56 FR 20137), October 15,
1996 (61 FR 53639), March 10, 2003 (68 FR 11316), December 24, 2003 (68
FR 74483), September 5, 2007 (72 FR 50879), November 26, 2010 (75 FR
72688) and July 20, 2011 (76 FR 43149). Additionally, on June 11, 2009
and May 23, 2011, New Mexico submitted to EPA SIP revisions that revise
the state's PSD and NNSR permitting regulations to address the
permitting requirements associated with the NAAQS for 8-hour ozone and
PM2.5, respectively. EPA approved the portions of the June
11, 2009 submittal associated with implementing NOX as a
precursor (75 FR 72688) as necessary to implement the 1997 ozone
standard. EPA has proposed approval of the May 23, 2011 revision in a
Federal Register notice signed on September 28, 2012, as these elements
are necessary for implementation of the PM2.5 standard.
Specific details regarding our proposed approval of these submittals is
available in a separate rulemaking and can be found in the Docket ID
EPA-R06-OAR-2011-0033.
PM2.5 PSD Permitting: To implement the PSD permitting component of
section 110(a)(2)(C) for the 2006 PM2.5 NAAQS, states were
required to submit the necessary SIP revisions to EPA by May 16, 2011
and July 20, 2012 pursuant to EPA's NSR PM2.5 Rule finalized
May 16, 2008 (73 FR 28321) and EPA's PM2.5 Increment--
Significant Impact Levels (SILs)--Significant Monitoring Concentrations
(SMC) Rule (75 FR 64864) finalized October 20, 2010, respectively. On
May 23, 2011, the Governor submitted necessary revisions to the New
Mexico SIP to amend the PSD program to meet the 2006 PM2.5
NAAQS implementation requirements. To address the requirements of EPA's
May 16, 2008 NSR PM2.5 Rule, New Mexico adopted rule
revisions to establish (1) The requirement for NSR permits to address
directly emitted PM2.5 and precursor pollutants; (2)
significant emission rates for direct PM2.5 and precursor
pollutants (SO2 and NOX) and (3) the requirement
that condensable PM be addressed in enforceable PM, PM10 and
PM2.5 emission limits included in PSD permits. To address
the requirements of EPA's October 20, 2010 PM2.5 PSD
Increment--SILs--SMC Rule, New
[[Page 62195]]
Mexico updated its PSD rules to establish the allowable
PM2.5 increments,\11\ and the optional screening tools
called significant impact levels (SILs), and significant monitoring
concentrations (SMCs).
---------------------------------------------------------------------------
\11\ Under section 165(a)(3) of the Act, a PSD permit applicant
must demonstrate that emissions from the proposed construction and
operation of a facility ``will not cause, or contribute to, air
pollution in excess of any (A) maximum allowable increase or maximum
allowable concentration for any pollutant * * *.'' The ``maximum
allowable increase'' of an air pollutant that is allowed to occur
above the applicable baseline concentration for that pollutant is
known as the PSD increment. New Mexico revised their PSD program
(20.2.74 NMAC) to include the allowable PSD increments. For example,
for Class II areas, the allowable PM2.5 PSD increment is
4 [mu]g/m\3\ annual arithmetic mean, and 9 [mu]g/m\3\ 24-hour
maximum, as outlined in Table 4 of 20.2.74.504 NMAC.
---------------------------------------------------------------------------
In a separate rulemaking, EPA proposes to approve the May 23, 2011
SIP revisions to New Mexico's PSD permitting regulations that implement
the provisions for PM2.5 permitting because EPA found those
rule revisions adequate and necessary to implement the 2006
PM2.5 NAAQS. We have proposed the New Mexico PSD program
satisfies both the May 16, 2008 (73 FR 28321) and October 20, 2010
PM2.5 PSD rulemakings (75 FR 64864, effective December 20,
2010) and a complete analysis is provided in the TSD for the proposed
action signed on September 28, 2012.
GHG PSD Permitting: New Mexico has the authority to issue permits
under the SIP-approved PSD program to sources of GHG emissions (75 FR
82536, December 30, 2010).\12\ The Tailoring Rule established
thresholds that phase in the applicability of PSD requirements to GHG
sources, starting with the largest GHG emitters, and were designed to
relieve the overwhelming administrative burdens and costs associated
with the dramatic increase in permitting burden that would have
resulted from applying PSD requirements to GHG emission increases at or
above only the mass-based statutory thresholds of 100/250 tpy generally
applicable to all PSD-regulated pollutants starting on January 2, 2011.
However, EPA recognized that even after it finalized the Tailoring
Rule, many SIPs with approved PSD programs would, until they were
revised, continue to apply PSD at the statutory thresholds, even though
the states would not have sufficient resources to implement the PSD
program at those levels. EPA consequently implemented its ``PSD SIP
Narrowing Rule'' and narrowed its approval of those provisions of
previously approved SIPs of 24 states, including New Mexico, that apply
PSD to GHG emission increases from sources emitting GHGs below the
Tailoring Rule thresholds (75 FR 82536, December 30, 2010). Through the
PSD SIP Narrowing Rule, EPA withdrew its previous approvals of those
programs to the extent the SIPs apply PSD to increases in GHG emissions
from GHG-emitting sources below the Tailoring Rule thresholds. The
portions of the PSD programs regulating GHGs from GHG-emitting sources
with emission increases at or above the Tailoring Rule thresholds
remained approved. The effect of EPA narrowing its approval in this
manner is that the provisions of previously approved SIPs that apply
PSD to GHG emissions increases from sources emitting GHGs below the
Tailoring Rule thresholds have the status of having been submitted by
the state but not yet acted upon by EPA (75 FR 82536, December 30,
2010).
---------------------------------------------------------------------------
\12\ On June 24, 2010, the State submitted a letter to EPA
stating that current New Mexico rules require regulating GHGs at the
existing 100/250 tpy threshold, rather than at the higher thresholds
set in the Tailoring Rule because the State does not have the
authority to apply the meaning of the term ``subject to regulation''
established in the Tailoring Rule. New Mexico also submitted a
letter on September 14, 2010, in response to the proposed GHG SIP
Call again confirming that EPA correctly classified New Mexico as a
State with authority to apply PSD requirements to GHGs. The
September 14, 2010, letter also identifies that NMED is pursuing
rulemaking activity to define the terms ``greenhouse gas'' and
``subject to regulation.'' These two letters are in the docket for
this rulemaking. As explained elsewhere in this rulemaking, on
November 10, 2010, New Mexico adopted revisions to the State's PSD
rules to implement the GHG thresholds established in EPA's GHG
Tailoring Rule and submitted the corresponding SIP revision to EPA
on December 1, 2010. On April 14, 2011, EPA proposed approval of New
Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). EPA
approved the December 1, 2010 submittal on August 19, 2011 (76 FR
43149).
---------------------------------------------------------------------------
On November 10, 2010, New Mexico adopted revisions to the State's
PSD rules to implement the GHG thresholds established in EPA's GHG
Tailoring Rule and submitted the corresponding SIP revision to EPA on
December 1, 2010. On April 14, 2011, EPA proposed approval of New
Mexico's GHG rules submitted on December 1, 2010 (76 FR 20907). On
August 19, 2011, EPA approved New Mexico's GHG rules submitted on
December 1, 2010 (see 76 FR 43149 dated July 20, 2011).
Minor Source Permitting: Section 110(a)(2)(C) creates ``a general
duty on States to include a program in their SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved'' (70 FR 71612, 71677). EPA provides
states with a ``broad degree of discretion'' in implementing their
Minor NSR programs (71 FR 48696, 48700). The ``considerably less
detailed'' regulations for minor NSR are provided in 40 CFR 51.160
through 51.164. EPA has determined that New Mexico's Minor NSR program
adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions
of all regulated air contaminants for which there is a NAAQS
(20.2.72.200 NMAC). New Mexico's Minor NSR permitting requirements are
found at 20.2.72 NMAC and were approved into the SIP on May 14, 1973
(38 FR 12702).\13\ In this action, EPA is proposing to approve New
Mexico's infrastructure SIP for the 2006 PM2.5 NAAQS with
respect to the general requirement of section 110(a)(2)(C) to include a
program in the SIP that regulates the modification and construction of
any stationary source as necessary to assure that the NAAQS are
achieved.
---------------------------------------------------------------------------
\13\ Revisions to New Mexico's minor source permitting program
were most recently approved by EPA into the SIP on September 26,
1997 (62 FR 50514).
---------------------------------------------------------------------------
It is important to stress that EPA is not proposing to approve or
disapprove the State's existing Minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
EPA believes that a number of states may have Minor NSR provisions that
are contrary to the existing EPA regulations for this program. EPA
intends to work with states to reconcile state Minor NSR programs with
EPA's regulatory provisions for the program. The statutory requirements
of section 110(a)(2)(C) provide for considerable flexibility in
designing Minor NSR programs, and EPA believes it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
Based on the above, we are proposing to find that the current New
Mexico SIP meets the requirements of section 110(a)(2)(C) with respect
to the 2006 PM2.5 NAAQS.
Interstate transport, pursuant to section 110(a)(2)(D): Section
110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii).
Section 110(a)(2)(D)(i) requires SIPs to include provisions prohibiting
any source or other type of emissions activity in one state from
contributing significantly to nonattainment, interfering with
maintenance of the NAAQS in another state, or from interfering with
measures required to prevent significant deterioration of air quality
or to protect visibility in another state. Section 110(a)(2)(D)(ii)
requires
[[Page 62196]]
SIPs to include provisions insuring compliance with sections 115 and
126 of the Act, relating to interstate and international pollution
abatement.
PSD and interstate transport, pursuant to section 110(a)(2)(D)(i):
One of the four elements (or prongs) in section 110(a)(2)(D)(i)
requires a SIP to contain adequate provisions prohibiting emissions
that interfere with any other state's required measures to prevent
significant deterioration of its air quality. This is the only element
of 110(a)(2)(D)(i) on which EPA is proposing action in this rulemaking.
EPA's 2009 Guidance made recommendations for SIP submissions to meet
this requirement with respect to the 2006 PM2.5 NAAQS.
The 2009 Guidance states that the PSD permitting program is the
primary measure that each state must include to prevent interference
with any other state's required measures to prevent significant
deterioration of its air quality in accordance with section
110(a)(2)(D)(i)(II).
As discussed previously in this rulemaking with regards to section
110(a)(2)(C) and in the TSD, the New Mexico PSD program has been
approved into the SIP. New Mexico has provided necessary revisions to
its PSD program to implement the PM2.5 standards and EPA has
proposed approval of these revisions. Therefore, EPA is proposing that
the New Mexico SIP meets the basic requirements for implementing the
2006 PM2.5 NAAQS. We are proposing to find the SIP has
adequately addressed section 110(a)(2)(D)(i)(II) of the CAA, for the
element that requires that the SIP prohibit air pollutant emissions
from sources within a state from interfering with measures required to
prevent significant deterioration of air quality in any other state.
The remaining three elements of section 110(a)(2)(D)(i): (1) Do not
significantly contribute to nonattainment of the relevant NAAQS in any
other state for the 2006 PM2.5 NAAQS; (2) interference with
the maintenance of the NAAQS in any other state; (3) interference with
measures required to protect visibility in any other state will be
evaluated and addressed in future rulemakings.
Interstate and international transport, pursuant to section
110(a)(2)(D)(ii): Section 110(a)(2)(D)(ii) of the Act requires
compliance with sections 115 and 126 of the Act, relating to interstate
and international pollution abatement. Section 115(a) addresses
endangerment of public health or welfare in foreign countries from
pollution emitted in the United States. Pursuant to section 115, the
Administrator has neither received nor issued a formal notification
that emissions from New Mexico are endangering public health or welfare
in a foreign country. Section 126(a) of the Act requires new or
modified sources to notify neighboring states of potential impacts from
such sources. Under section 126(a)(1)(A), SIPs must require
notification to nearby, affected states of ``major proposed new (or
modified) sources'' when the source is subject to PSD. New Mexico's SIP
approved PSD program rules at 20.2.74.400 NMAC satisfy the requirements
of section 126(a)(1)(A) by providing that the NMED must send notice of
the proposed action on PSD permits to, among others, ``any state * * *
whose lands may be affected by emissions from the source or
modification.'' The State also has no pending obligations under section
126 of the Act.
EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(D)(ii) with respect to the 2006
PM2.5 NAAQS.
Adequate personnel, funding, and authority, pursuant to section
110(a)(2)(E): The Department of the Environment Act provides that the
secretary of the NMED ``shall * * * employ and fix the compensation of
those persons necessary to discharge his duties * * *'' See NMSA 1978
9-7A-6(B). The NMED is also authorized to receive State appropriations
to implement environmental programs. See generally, NMSA 1978 9-7A.
There are federal sources of funding for the implementation of the 2006
PM2.5 NAAQS, through, for example, the CAA sections 103 and
105 grant funds. The NMED receives federal funds on an annual basis,
under sections 103 and 105 of the Act, to support its air quality
programs. Additionally, the State provides funds equal to 40 percent of
the 105 grant fees it receives.
Fees collected for the Title V and non-Title V permit programs, and
other inspections, maintenance and renewals required of other air
pollution sources also provide necessary funds to help implement the
State's air programs. Information on permitting fees is provided in the
discussion for section 110(a)(2)(L) below. The Air Quality Control Act
designates the NMED as the State air pollution control agency for all
purposes under federal legislation relating to air pollution and
provides the NMED with the power ``to accept, receive and administer
grants or other funds or gifts from public and private agencies,
including the federal government, or from any person * * *'' See NMSA
1978 74-2-5.1(F). For more detail on funding sources, please see the
TSD.
The Air Quality Control Act delegates authority to the EIB to
adopt, promulgate, publish, amend and repeal regulations consistent
with the Air Quality Control Act to attain and maintain national
ambient air quality standards and prevent or abate air pollution. See
NMSA 1978 74-2-5(B)(1). The Environmental Improvement Act provides the
NMED with the power ``to enforce the rules, regulations and orders
promulgated by the board * * *'' See NMSA 1978 74-1-6(F). The Air
Quality Control Act also gives the NMED the duty to ``develop and
present to the environmental improvement board or the local board a
plan for the regulation, control, prevention or abatement of air
pollution * * *'' and gives the EIB the authority to adopt such a plan.
See NMSA 1978 74-2-5.1(H) and NMSA 1978 74-2-5(B)(2). Therefore, the
State has demonstrated it has adequate authority under its rules and
regulations to carry out its SIP obligations with respect to the 2006
PM2.5 NAAQS.
EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(E) with respect to the 2006
PM2.5 NAAQS.
Stationary source monitoring system, pursuant to section
110(a)(2)(F): New Mexico's regulations at 20.2 NMAC parts 5, 7-8, 10-
20, 30-34, 40-41, and 72-74 require source monitoring for compliance,
recordkeeping and reporting, and provide for enforcement with respect
to all the NAAQS and their precursors. These source monitoring program
requirements generate data for, among other pollutants, ozone,
PM2.5, and the precursors to these pollutants (VOCs,
NOX, and SO2).
Under the New Mexico SIP rules, the NMED is required to analyze the
emissions data from point, area, mobile, and biogenic (natural)
sources. The NMED uses this data to track progress towards maintaining
the NAAQS, develop control and maintenance strategies, identify sources
and general emission levels, and determine compliance with New Mexico
and EPA requirements. The State's emissions data are available on the
NMED Web site (https://www.nmenv.state.nm.us). These rules have been
approved by EPA into the SIP. A list of the rules and Federal Register
citations are provided in the TSD.
There are two requirements that New Mexico must meet regarding
emissions inventories (EIs): The EI requirement for nonattainment
areas, and the requirement to submit annual EI data to EPA's National
Emissions Inventory (NEI) database. Because Nonattainment NSR is
outside the scope of this
[[Page 62197]]
rulemaking, we are not addressing New Mexico's EI for nonattainment
areas in this proposed action. The NEI is EPA's central repository for
air emissions data. EPA published the Air Emissions Reporting Rule
(AERR) on December 5, 2008, which modified the requirements for
collecting and reporting air emissions data (73 FR 76539). The AERR
shortened the time states are given to report emissions data from 17 to
12 months, giving states one calendar year to submit emissions data.
All states are required to submit a comprehensive emissions inventory
every three years and report emissions for certain larger sources
annually through EPA's online Emissions Inventory System (EIS). States
report emissions data for the six criteria pollutants and the
precursors that form them--nitrogen oxides, sulfur dioxide, ammonia,
lead, carbon monoxide, particulate matter, and volatile organic
compounds. EPA compiles the emissions data, supplementing it where
necessary, and releases it to the general public through the Web site
https://www.epa.gov/ttn/chief/eiinformation.html. The NMED is current
with their submittals to the NEI database; the 2010 data for larger
sources was submitted to EPA in 2011. The State's emissions data are
also available on EPA's AirData Web site (https://www.epa.gov/air/data/).\14\
---------------------------------------------------------------------------
\14\ The AirData Web site provides access to air pollution data
for the entire United States and produces reports and maps of air
pollution data based on criteria specified by the user.
---------------------------------------------------------------------------
EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(F) with respect to the 2006
PM2.5 NAAQS.
Emergency power, pursuant to section 110(a)(2)(G): Section
110(a)(2)(G) requires States to provide for authority to address
activities causing imminent and substantial endangerment to public
health, including contingency plans to implement the emergency episode
provisions in their SIPs. The Air Quality Control Act provides the NMED
with authority to address environmental emergencies, and the NMED has
contingency plans to implement emergency episode provisions in the SIP.
New Mexico promulgated the ``Air Pollution Episode Contingency Plan for
New Mexico,'' which includes contingency measures, and these provisions
were approved into the SIP on August 21, 1990 (55 FR 34013).
The 2009 Infrastructure SIP Guidance for PM2.5
recommends that a state with at least one monitored 24-hour
PM2.5 value exceeding 140.4 [micro]g/m\3\ since 2006
establish an emergency episode plan and contingency measures to be
implemented should such level be exceeded again. The 2006-2011 ambient
air quality monitoring data \15\ for New Mexico do not exceed 140.4
[micro]g/m\3\. The PM2.5 levels have consistently remained
below this level (140.4 [micro]g/m\3\), and furthermore, the State has
appropriate general emergency powers to address PM2.5
related episodes to protect the environment and public health. Given
the State's low monitored PM2.5 levels, EPA is proposing the
State is not required to submit an emergency episode plan and
contingency measures at this time, for the 2006 PM2.5
standard. Additional detail is provided in the TSD.
---------------------------------------------------------------------------
\15\ The ozone and PM data are available through AQS. The AQS
data for PM are provided in the docket for this rulemaking.
---------------------------------------------------------------------------
EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(G) with respect to the 2006
PM2.5 NAAQS.
Future SIP revisions, pursuant to section 110(a)(2)(H): The Air
Quality Control Act provides that the EIB shall ``* * * adopt,
promulgate, publish, amend, and repeal regulations consistent with the
Air Quality Control Act to attain and maintain national ambient air
quality standards and prevent or abate air pollution * * *.'' See NMSA
1978 74-2-5(B)(1). The Environmental Improvement Act provides that the
NMED shall, ``* * * enforce the rules, regulations and orders
promulgated by the board * * *.'' See NMSA 1978 74-1-6(F). In addition,
the Air Quality Control Act requires the NMED to, ``* * * advise,
consult, contract with and cooperate with local authorities, other
states, the federal government and other interested persons or groups
in regard to matters of common interest in the field of air quality
control * * *'' See NMSA 1978 74-2-5.2(B). Thus, New Mexico has the
authority to revise its SIP from time to time as may be necessary to
take into account revisions of primary or secondary NAAQS, or the
availability of improved or more expeditious methods of attaining such
standards. Furthermore, New Mexico also has the authority under the
above provisions to revise its SIP in the event the EPA, pursuant to
the Act, finds the SIP to be substantially inadequate to attain the
NAAQS.
EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(H) with respect to the 2006
PM2.5 NAAQS.
Consultation with government officials, pursuant to section
110(a)(2)(J): \16\ The Air Quality Control Act, as codified at NMSA
1978 74-2-6, provides that, ``no regulations or emission control
requirement shall be adopted until after a public hearing by the
environmental improvement board or the local board'' and provides that,
``at the hearing, the environmental improvement board or the local
board shall allow all interested persons reasonable opportunity to
submit data, views, or arguments orally or in writing and to examine
witnesses testifying at the hearing.'' See NMSA 1978 74-2-6(B) and (D).
In addition, the Air Quality Control Act provides that the NMED shall
have the power and duty to ``advise, consult, contract with and
cooperate with local authorities, other states, the federal government
and other interested persons or groups in regard to matters of common
interest in the field of air quality control* * *'' See NMSA 1978 74-2-
5.2(B). The State's SIP approved PSD rules at 20.2.74.400 NMAC mandate
that the NMED shall provide for public participation and notification
regarding permitting applications to any other state or local air
pollution control agencies, local government officials of the city or
county where the source will be located, and Federal Land Managers
(FLM) whose lands may be affected by emissions from the source or
modification. The State's SIP approved PSD rules at 20.2.74.403 NMAC
require the NMED to consult with FLMs regarding permit applications for
sources impacting Class I Federal areas.\17\ Furthermore, the State of
New Mexico has committed in the SIP to consult continually with the
FLMs on the review and implementation of the visibility program and to
notify the FLM of any advance notification or early consultation with a
major new or modifying source prior to the submission of the permit
application.\18\ The State's SIP approved Transportation Conformity
rules at 20.2.99.116 and 20.2.99.124 NMAC require that interagency
consultation and opportunity for public involvement be provided before
making transportation conformity determinations and before adopting
applicable SIP revisions on
[[Page 62198]]
transportation-related SIPs.\19\ These rules are in the Federally-
approved SIP.
---------------------------------------------------------------------------
\16\ Section 110(a)(2)(J) is divided into three segments:
Consultation with government officials; public notification; and PSD
and visibility protection.
\17\ Areas designated as mandatory Class I Federal areas consist
of national parks exceeding 6,000 acres, wilderness areas and
national memorial parks exceeding 5,000 acres, and all international
parks that were in existence on August 7, 1977. CAA section 162(a).
\18\ See 71 FR 4490, January 27, 2006.
\19\ See 65 FR 14877.
---------------------------------------------------------------------------
EPA is proposing to find that the New Mexico SIP meets the
requirements of this portion of section 110(a)(2)(J) with respect to
the 2006 PM2.5 NAAQS.
Public notification if NAAQS are exceeded, pursuant to section
110(a)(2)(J): Public notification begins with the air quality forecast,
which advises the public of conditions capable of exceeding the NAAQS
(see 54 FR 9783). New Mexico's provisions regarding public notification
of instances or areas in which any primary NAAQS was exceeded were
approved into the SIP on August 24, 1983 (48 FR 38466). In addition,
the NMED air monitoring Web site provides live air quality data for
each of the monitoring stations in New Mexico.\20\ The Web site also
provides information on the health effects of ozone, particulate
matter, and other criteria pollutants.
---------------------------------------------------------------------------
\20\ Please see https://air.nmenv.state.nm.us/.
---------------------------------------------------------------------------
EPA is proposing to find that the New Mexico SIP meets the
requirements of this portion of section 110(a)(2)(J) with respect to
the 2006 PM2.5 NAAQS.
PSD and visibility protection, pursuant to section 110(a)(2)(J):
This portion of section 110(a)(2)(J) in part requires that a state's
SIP meet the applicable requirements of section 110(a)(2)(C) as
relating to PSD programs. As detailed in the subsection titled
``Program for enforcement of control measures and regulation of the
modification and construction of any stationary source * * * pursuant
to section 110(a)(2)(C)'' of this rulemaking and in the TSD, New
Mexico's PSD program was conditionally approved into the SIP on
February 27, 1987 (52 FR 5964). New Mexico has since then met the
conditions of our conditional approval, so we converted our conditional
approval into a full approval effective August 15, 2011 (76 FR 41698).
The State's PSD program is in the SIP (52 FR 5964, 53 FR 44191, 55 FR
43013, 56 FR 20137, 61 FR 53639, 68 FR 11316, 68 FR 74483, 72 FR 50879,
and 75 FR 72688). Furthermore, the State revised their rules to address
PM2.5 in their PSD program, and submitted those SIP
revisions on May 23, 2011 to address the permitting requirements for
direct PM2.5 emissions and its precursors as promulgated by
EPA on May 16, 2008 and adopting the PM2.5 increment,
significant impact levels (SILs), and significant monitoring
concentrations (SMCs) as promulgated by EPA on October 20, 2010 (75 FR
64864). The State's minor source permitting requirements were approved
at 38 FR 12702.
EPA approved New Mexico's Visibility Protection Plan and approved a
Long-Term Strategy for Visibility Protection into the New Mexico SIP on
January 27, 2006 (71 FR 4490). The State submitted a Regional Haze SIP
to EPA on December 1, 2003. On January 15, 2009, we published a
``Finding of Failure to Submit State Implementation Plans Required by
the 1999 regional haze rule'' (74 FR 2392). We found that New Mexico
had failed to submit for our review and approval a complete SIP for
improving visibility in the nation's national parks and wilderness
areas by the required date of December 17, 2007. Specifically, we found
that New Mexico had failed to submit the plan elements required by 40
CFR 51.309(g),\21\ and the plan element required by 40 CFR
51.309(d)(4), which requires BART for stationary source emissions of
NOX and PM under either 40 CFR 51.308(e)(1) or
51.308(e)(2).\22\ On January 13, 2009, New Mexico submitted a letter to
EPA, clarifying that they intended to submit a Regional Haze (RH) SIP
revision in 2009 to address the requirements of 40 CFR 51.309(d)(4) and
40 CFR 51.309(g).\23\
---------------------------------------------------------------------------
\21\ 40 CFR 51.309(g) concerns the reasonable progress
requirements for areas other than the 16 Class I areas covered by
the Grand Canyon Visibility Transport Commission Report.
\22\ New Mexico has the option to submit a Regional Haze SIP
under either section 51.308 or section 51.309.
\23\ January 13, 2009, letter from Bill Richardson, Governor of
New Mexico, to Mayor Richard Greene, Regional Administrator, EPA
Region 6. This letter is in the docket for this rulemaking.
---------------------------------------------------------------------------
On September 17, 2007, New Mexico submitted a SIP revision
addressing the ``good neighbor'' requirement of section 110(a)(2)(D)(i)
of the CAA for the 1997 8-hour ozone and 1997 PM2.5 NAAQS.
On August 22, 2011, EPA disapproved the New Mexico Interstate Transport
SIP provisions that address the requirement of 110(a)(2)(D)(II) that
emissions from New Mexico sources do not interfere with measures
required in the SIP of any other state under part C of the CAA to
protect visibility. EPA found that New Mexico sources, except the San
Juan Generating Station, are sufficiently controlled to eliminate
interference with the visibility programs of other states. Therefore,
EPA finalized a Federal Implementation Plan (FIP) for New Mexico to
address emissions from one source: The San Juan Generating Station
(SJGS) coal-fired power plant (76 FR 52388, effective September 21,
2011). The FIP addresses the RH Best Available Retrofit Technology
(BART) requirements for NOX for the SJGS. In that action,
EPA found that the other New Mexico pollution sources are adequately
controlled to eliminate interference with the clean air visibility
programs of other states.
On July 5, 2011, New Mexico submitted a revised Regional Haze (RH)
SIP to the EPA. EPA has reviewed the submittal and proposed approval of
the submittal, except for the submitted nitrogen oxides NOX
Best Available Retrofit Technology (BART) determination for the San
Juan Generating Station, on June 15, 2012 (77 FR 36044).
With regard to the applicable requirements for visibility
protection, EPA recognizes that States are subject to visibility and
regional haze program requirements under Part C of the Act (which
includes sections 169A and 169B). In the event of the establishment of
a new NAAQS, however, the visibility and regional haze program
requirements under part C do not change. Thus, we find that there is no
new visibility obligation ``triggered'' under section 110(a)(2)(J) when
a new NAAQS becomes effective; and as such, visibility protection
requirements are not relevant for purposes of this action. This would
be the case even in the event a secondary PM2.5 NAAQS for
visibility is established, because this NAAQS would not affect
visibility requirements under part C.
EPA is therefore proposing to find that the New Mexico SIP meets
the requirements of this portion of section 110(a)(2)(J) with respect
to the 2006 PM2.5 NAAQS.
Air quality modeling and submission of data, pursuant to section
110(a)(2)(K): The Air Quality Control Act authorizes NMED to ``develop
facts and make investigations and studies,'' thereby providing for the
functions of environmental air quality assessment. As an example, New
Mexico has the ability to perform modeling for the primary and
secondary PM2.5 standards on a case-by-case permit basis
consistent with their SIP-approved PSD rules and consistent with EPA
guidance and 40 CFR part 51, Appendix W, Guideline on Air Quality
Models.
This section of the Act also requires that a SIP provide for the
submission of data related to such air quality modeling to the EPA upon
request. The Air Quality Control Act authorizes NMED to cooperate with
the federal government in regard to matters of common interest in the
field of air quality control, thereby allowing it to make this
submission to EPA. See NMSA 1978 74-2-5.2(B).
EPA is proposing to find that the New Mexico SIP meets the
requirements of
[[Page 62199]]
section 110(a)(2)(K) with respect to the 2006 PM2.5 NAAQS.
Permitting fees, pursuant to section 110(a)(2)(L): The Air Quality
Control Act provides the EIB with the legal authority for establishing
an emission fee schedule and a construction permit fee schedule to
recover the reasonable costs of acting on permit applications,
implementing, and enforcing permits. See NMSA 1978 74-2-7. New Mexico's
Permit Fee System was approved by EPA on July 17, 1991 (56 FR 32511).
New Mexico's Permit Fee System implements a fee system for all
preconstruction air permits issued by NMED. New Mexico's regulations
for construction permit fees are found at 20.2.75 NMAC. The State's
Title V program and associated fees legally are not part of the SIP,
but were approved by EPA on November 26, 1996 (61 FR 60032) as part of
the New Mexico Title V Program.
EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(L) with respect to the 2006
PM2.5 NAAQS.
Consultation/participation by affected local entities, pursuant to
section 110(a)(2)(M): As indicated above, the Air Quality Control Act
provides that, ``no regulations or emission control requirement shall
be adopted until after a public hearing by the environmental
improvement board or the local board'' and provides that, ``at the
hearing, the environmental improvement board or the local board shall
allow all interested persons reasonable opportunity to submit data,
views, or arguments orally or in writing and to examine witnesses
testifying at the hearing.'' See NMSA 1978 74-2-6(B) and (D). In
addition, the Air Quality Control Act provides that the NMED shall have
the power and duty to ``advise, consult, contract with and cooperate
with local authorities, other states, the federal government and other
interested persons or groups in regard to matters of common interest in
the field of air quality control* * *'' See NMSA 1978 74-2-5.2(B). New
Mexico's SIP approved PSD regulations at 20.2.74.400 NMAC mandate that
the NMED shall provide for public participation and notification
regarding permitting applications to any other state or local air
pollution control agencies, local government officials of the city or
county where the source will be located, and FLMs whose lands may be
affected by emissions from the source or modification. New Mexico's SIP
approved Transportation Conformity regulations at 20.2.99.116 and
20.2.99.124 NMAC require that interagency consultation and opportunity
for public involvement be provided before making transportation
conformity determinations and before adopting applicable SIP revisions
on transportation-related SIPs.\24\
---------------------------------------------------------------------------
\24\ See 65 FR 14877.
---------------------------------------------------------------------------
EPA is proposing to find that the New Mexico SIP meets the
requirements of section 110(a)(2)(M) with respect to the 2006
PM2.5 NAAQS.
IV. Proposed Action
We are proposing to approve the submittal provided by the State of
New Mexico to demonstrate that the New Mexico SIP meets the
requirements of Section 110(a)(1) and (2) of the Act for the 2006
PM2.5 NAAQS. We are proposing to find that the current New
Mexico SIP meets the infrastructure elements listed below:
Emission limits and other control measures (110(a)(2)(A) of the Act);
Ambient air quality monitoring/data system (110(a)(2)(B) of the Act);
Program for enforcement of control measures (110(a)(2)(C) of the Act);
Interstate and international transport (110(a)(2)(D)(ii) of the Act);
Adequate resources (110(a)(2)(E) of the Act);
Stationary source monitoring system (110(a)(2)(F) of the Act);
Emergency power (110(a)(2)(G) of the Act);
Future SIP revisions (110(a)(2)(H) of the Act);
Consultation with government officials (110(a)(2)(J) of the Act);
Public notification (110(a)(2)(J) of the Act);
Prevention of significant deterioration and visibility protection
(110(a)(2)(J) of the Act);
Air quality modeling data (110(a)(2)(K) of the Act);
Permitting fees (110(a)(2)(L) of the Act); and
Consultation/participation by affected local entities (110(a)(2)(M) of
the Act).
We are also proposing to approve the portion of the New Mexico
submittal that addresses the requirement of section
(110)(a)(2)(D)(i)(II) of the Act that emissions from sources in New
Mexico do not interfere with measures required in the SIP of any other
state under part C of the Act regarding PSD for the 2006
PM2.5 NAAQS.
EPA is proposing these actions in accordance with section 110 and
part C of the Act and EPA's regulations and consistent with EPA
guidance. EPA's proposed approval does not extend to areas within
Indian country as defined in 18 U.S.C. 1151. EPA, or eligible Indian
tribes, as appropriate, will retain jurisdiction and responsibilities
under the Clean Air Act, Section 110 within Indian country.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely proposes to approve state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct
[[Page 62200]]
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 28, 2012.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2012-25158 Filed 10-11-12; 8:45 am]
BILLING CODE 6560-50-P
