[Federal Register Volume 59, Number 51 (Wednesday, March 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5906]


[[Page Unknown]]

[Federal Register: March 16, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NM-19-1-6069; FRL-4847-7]

 

Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Albuquerque/Bernalillo County Permitting Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action approves a revision to the Albuquerque/Bernalillo 
County, New Mexico State Implementation Plan (SIP) which includes 
Albuquerque/Bernalillo County Regulation Number 20, entitled Authority-
to-Construct Permits, and the Supplement pertaining to general new 
source review (NSR) in Albuquerque/Bernalillo County, New Mexico. This 
SIP approval action makes federally enforceable the revised City/County 
general NSR regulation (outside the boundaries of Indian lands), and 
allows the EPA to revoke the construction moratorium for nonattainment 
areas in Albuquerque/Bernalillo County. This construction moratorium 
was put in place by the Governor of New Mexico on May 20, 1980.

DATES: This final rule will become effective on May 16, 1994, unless 
notice is received by April 15, 1994, that someone wishes to submit 
adverse or critical comments. If the effective date is delayed, timely 
notice will be published in the Federal Register (FR).

ADDRESSES: Written comments on this action should be addressed to Mr. 
Thomas H. Diggs, Chief, Planning Section, at the EPA Regional Office 
listed below. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations. The interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.
    U.S. Environmental Protection Agency, Region 6, Air Programs Branch 
(6T-A), 1445 Ross Avenue, suite 700, Dallas, Texas 75202.
    U.S. Environmental Protection Agency, Air and Radiation Docket and 
Information Center, 401 M Street, SW., Washington, DC 20460.
    Albuquerque Environmental Health Department, The City of 
Albuquerque, One Civic Plaza Northwest, P.O. Box 1293, Albuquerque, New 
Mexico 87103.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Sather, Planning Section (6T-
AP), Air Programs Branch, USEPA Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202-2733, telephone (214) 655-7258.

SUPPLEMENTARY INFORMATION:

Background

    Albuquerque/Bernalillo County Regulation 20, a portion of 
Albuquerque's complete NSR permitting program, was initially approved 
by the EPA on April 10, 1980, at 45 FR 24460, as a part of the 1979 New 
Mexico SIP submittal to the EPA. A construction moratorium for 
nonattainment areas was put in place by the Governor of New Mexico on 
May 20, 1980. On this date, the Governor committed the State of New 
Mexico to not issue permits to stationary sources located in 
nonattainment areas. This construction ban has continued in 
Albuquerque/ Bernalillo County as outlined in 40 CFR 52.1627(a) and 
52.1628, in reference to the carbon monoxide nonattainment status of 
Bernalillo County, and in reference to the County not having a complete 
federally approved NSR permitting program.
    The EPA in this action can now revoke the construction ban for 
Albuquerque/Bernalillo County because of two developments. The first 
development focuses on the FR notice of January 25, 1991 (56 FR 2852). 
This notice announced that the 1990 Clean Air Act Amendments (CAAA) 
repealed the provisions of section 110(a)(2)(I) of the Clean Air Act as 
amended in 1977. The 1977 provisions had required the EPA to impose a 
construction moratorium in nonattainment areas that failed to submit 
plans meeting all of the requirements of part D of the 1977 Clean Air 
Act (CAA). The 1990 CAAA, however, contained a savings clause, new CAA 
section 110(n)(3), that preserved certain existing construction 
moratoriums (i.e., relating to the establishment of a permit program 
and relating to sulfur dioxide (SO2) attainment status). 
Therefore, the EPA interpreted the provisions of the 1990 CAAA as 
repealing by operation of law, as of the date of enactment of the 1990 
CAAA (November 15, 1990), all construction moratoriums that the EPA had 
imposed under the 1977 CAA (section 110(a)(2)(I)) for any reason other 
than failure to submit an approvable NSR program or failure to 
demonstrate timely attainment of the SO2 National Ambient Air 
Quality Standards (NAAQS). Albuquerque/Bernalillo County is currently 
classified attainment for the SO2 NAAQS, and with the approval of 
revised Regulation 20, along with Regulations 29 and 32 (i.e., the 
Prevention of Significant Deterioration (29) and Nonattainment NSR (32) 
permitting regulations approved in separate FR actions at 58 FR 67330 
and 58 FR 67326 (December 21, 1993), respectively), the Albuquerque/
Bernalillo County NSR permitting program has now been brought up to 
date and found to be approvable by the EPA. Thus, the construction ban 
can be revoked for Albuquerque/Bernalillo County.

Analysis of City/County Submission

A. Procedural Background

    The CAA requires States to observe certain procedural requirements 
in developing implementation plans for submission to the EPA. Section 
110(a)(2) of the CAA provides that each implementation plan submitted 
by a State must be adopted after reasonable notice and public hearing 
(see also section 110(l) of the CAA). Also, the EPA must determine 
whether a submittal is complete, and therefore warrants further EPA 
review and action (see section 110(k)(1) and 57 FR 13565). The EPA's 
completeness criteria for SIP submittals are set out at 40 CFR part 51, 
appendix V. The EPA attempts to make completeness determinations within 
60 days of receiving a submission. However, a submittal is deemed 
complete by operation of law if a completeness determination is not 
made by the EPA six months after receipt of the submission.
    After providing adequate notice, the City of Albuquerque held 
public hearings on February 10, 1993, and on May 12, 1993, to entertain 
public comment on proposed revisions to Regulation 20 and its narrative 
supplement, respectively. No public comments were received. Following 
the public hearings, Regulation 20 and its narrative supplement were 
adopted by the Albuquerque/Bernalillo County Air Quality Control Board 
and submitted as a SIP revision to the EPA by cover letter from the 
Governor dated July 22, 1993.
    The SIP revision was reviewed by the EPA to determine completeness 
shortly after its submittal, in accordance with the completeness 
criteria referenced above. A letter datedSeptember 10, 1993, was 
forwarded to the Governor indicating the completeness of the submittal 
and the next steps to be taken in the review process.

B. Review of Revisions to Regulation 20

    Albuquerque/Bernalillo County filed revisions to Regulation 20 with 
the State of New Mexico Records and Archives Center on February 26, 
1993. The revisions to Regulation 20 were adopted in order to update 
the currently approved Albuquerque/Bernalillo County permit program, 
and to allow for revoking the construction ban referenced in 40 CFR 
52.1627(a) and 52.1628. Regulation 20 sets forth certain emissions 
thresholds requiring a pre-construction permit (e.g., 10 pounds per 
hour or 25 tons per year), stipulates required contents of permit 
applications, outlines public participation requirements, and addresses 
performance testing procedures. It is important to note that the 
revisions to Regulation 20 are minor and noncontroversial, resulting in 
a clarification of nonattainment area permit requirements, a re-
defining of ``potential emission rate'' as ``pre-controlled emission 
rate,'' and other minor clarifications. For further details on both the 
requirements and the revisions of Regulation 20, please reference the 
Technical Support Document (TSD). Copies of the TSD can be obtained 
from the EPA Region 6 office listed above.

Final Action

    The EPA is approving a revision to the New Mexico SIP to include 
revisions to Albuquerque/Bernalillo County Regulation Number 20, 
entitled Authority-to-Construct Permits, as filed with the State 
Records and Archives Center on February 26, 1993. The EPA is also 
approving the SIP narrative entitled Supplement Pertaining to General 
New Source Review; Albuquerque/Bernalillo County, New Mexico; May 12, 
1993. This SIP approval action makes federally enforceable the revised 
City/County general NSR regulation (outside the boundaries of Indian 
lands), and allows the EPA to revoke the construction ban codified at 
40 CFR 52.1627(a) and 52.1628.
    The EPA has reviewed these revisions to the New Mexico SIP and is 
approving them as submitted. The EPA is publishing this action without 
prior proposal because the Agency views this as a noncontroversial 
amendment and anticipates no adverse comments. This action will be 
effective May 16, 1994, unless, by April 15, 1994, notice is received 
that adverse or critical comments will be submitted.
    If such notice is received, this action will be withdrawn before 
the effective date by publishing two subsequent documents. One document 
will withdraw the final action, and another will begin a new rulemaking 
by announcing a proposal of the action and establishing a comment 
period. If no such comments are received, the public is advised that 
this action will be effective [Insert date 60 days from date of 
publication].
    With respect to all of the statutory changes discussed in this 
action, the EPA plans to undertake national rulemaking in the near 
future to adopt clarifying changes to its permitting regulations. Upon 
final adoption of those regulations, the EPA will call upon States with 
approved permitting programs, including Albuquerque, to make 
corresponding changes in their SIPs. Based on the above evaluation, the 
EPA is approving the revised Albuquerque/Bernalillo County Regulation 
20 and its narrative Supplement as a strengthening of the New Mexico 
(Albuquerque/Bernalillo County) SIP.

Miscellaneous

    Under the Regulatory Flexibility Act,5 U.S.C. 600 et seq., the EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, the EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D, of the 
CAA do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-State relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
CAA forbids the EPA to base its actions concerning SIPs on such grounds 
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42 
U.S.C. 7410(a)(2)).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 16, 1994. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements (see section 307(b)(2)).

Executive Order

    This action has been classified as a table three action by the 
Regional Administrator under the procedures published in the Federal 
Register on January 19, 1989 (54 FR 2214-2225), as revised by an 
October 4, 1993, memorandum from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation. A future notice will inform the 
general public of these tables. On January 6, 1989, the Office of 
Management and Budget (OMB) waived table two and three SIP revisions 
(54 FR 2222) from the requirements of section 3 of Executive Order 
12291 for a period of two years. The EPA has submitted a request for a 
permanent waiver for table two and three SIP revisions. The OMB has 
agreed to continue the waiver until such time as it rules on the EPA's 
request. This request continues in effect under Executive Order 12866 
which superseded Executive Order 12291 onSeptember 30, 1993.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    Note: Incorporation by reference of the SIP for the State of New 
Mexico was approved by the Director of the Federal Register on July 
1, 1982.

    Dated: February 28, 1994.
W.B. Hathaway,
Acting Regional Administrator (6A).

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart GG--New Mexico

    2. Section 52.1620 is amended by adding paragraph (c)(54) to read 
as follows:


Sec. 52.1620  Identification of plan.

* * * * *
    (c) * * *
    (54) A revision to the New Mexico SIP addressing the Albuquerque/
Bernalillo County Permitting Program was submitted by the Governor of 
New Mexico by cover letter dated July 22, 1993.
    (i) Incorporation by reference.
    (A) Albuquerque/Bernalillo County Regulation Number 20-Authority-
to-Construct Permits, Section 20.00, ``Purpose;'' Section 20.01, 
``Applicability;'' Section 20.02, ``Fees for Permit Application 
Review;'' Section 20.03, ``Contents of Applications;'' Section 20.04, 
``Public Notice and Participation;'' Section 20.05, ``Permit Decisions 
and Appeals;'' Section 20.06, ``Basis for Permit Denial;'' Section 
20.07, ``Additional Legal Responsibilities on Applicants;'' Section 
20.08, ``Permit Conditions;'' Section 20.09, ``Permit Cancellation;'' 
Section 20.10, ``Permittee's Notification Obligations to the 
Department;'' Section 20.11, ``Performance Testing Following Startup;'' 
Section 20.12, ``Emergency Permits;'' Section 20.13, ``Nonattainment 
Area Requirements;'' Section 20.14, ``Definitions Specific to 
Authority-to-Construct Permit Regulations;'' and Table One, 
``Significant Ambient Concentrations,'' as filed with the State Records 
and Archives Center on February 26, 1993.
    (ii) Additional material.
    (A) The Supplement Pertaining to General New Source Review in 
Albuquerque/Bernalillo County, New Mexico, as approved by the 
Albuquerque/Bernalillo County Air Quality Control Board onMay 12, 1993.
    3. Section 52.1627 is revised to read as follows:


Sec. 52.1627  Control strategy and regulations: Carbon monoxide.

    Part D disapproval. The Bernalillo County carbon monoxide plan is 
disapproved for failure to meet the resource requirements of section 
172 of the Clean Air Act.


Sec. 52.1628  [Removed and Reserved]

    4. Section 52.1628 is removed and reserved.
[FR Doc. 94-5906 Filed 3-15-94; 8:45 am]
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