[Federal Register Volume 59, Number 222 (Friday, November 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28485]


[[Page Unknown]]

[Federal Register: November 18, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NM-21-1-6398a; FRL-5103-4]

 

Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Revision to the State Implementation Plan Correcting Sulfur 
Dioxide Enforceability Deficiencies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a revision to the New Mexico State 
Implementation Plan (SIP) to include revisions to New Mexico Air 
Quality Control Regulations (AQCR) 602, 651, and 652. These revisions 
correct enforceability deficiencies and strengthen the provisions of 
the regulations. This action also removes AQCR 605 from the New Mexico 
SIP because AQCR 605 has never applied to a facility within the State, 
and the State's operating permits and new source review programs would 
govern any such sources which would exist in the future.

DATES: This final rule will become effective on January 17, 1995 unless 
notice is received by December 19, 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.

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 twenty-four hours before the visiting day.
    U.S. Environmental Protection Agency, Region 6, Air ProgramsBranch 
(6T-A), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.
    U.S. Environmental Protection Agency, Air and Radiation Docketand 
Information Center, 401 M Street, SW., Washington, DC 20460.
    New Mexico Environment Department, Air Monitoring & Control 
Strategy Bureau, 1190 St. Francis Drive, room So. 2100,Santa Fe, New 
Mexico 87503.

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) 665-7258.

SUPPLEMENTARY INFORMATION:

Background

    A nation-wide effort is underway to have sulfur dioxide (SO2) 
enforceability deficiencies identified and corrected in SIPs before 
operating permit programs become effective. Because the operating 
permit programs will initially codify underlying SIP requirements, it 
is important that the underlying SIP be enforceable so that permits 
themselves will be enforceable. The EPA, Region 6, provided a list of 
deficiencies in AQCRs 602, 605, 651, and 652 to the State of New Mexico 
by cover letter dated March 13, 1991. The Region used the ``SO2 
SIP Enforceability Checklist'' when reviewing the New Mexico 
regulations for enforceability deficiencies. This checklist, developed 
by the EPA, was included as an attachment to the November 28, 1990, 
memorandum from Robert Bauman and Rich Biondi to the Air Branch Chiefs. 
This memorandum, as well as the EPA, Region 6, March 13, 1991, letter 
are included as attachments to the Technical Support Document. The 
checklist focused on the following topics: (1) Clarity; (2) averaging 
times consistent with protection of the SO2 National Ambient Air 
Quality Standards (NAAQS); (3) clear compliance determinations; (4) 
continuous emissions monitoring; (5) adequate reporting and 
recordkeeping requirements; (6) director's discretion issues; and (7) 
stack height issues.

Analysis of State Submission

A. Procedural Background

    The Clean Air Act (the Act) requires states to observe certain 
procedural requirements in developing implementation plans for 
submission to the EPA. Section 110(a)(2) of the Act provides that each 
implementation plan submitted by a state must be adopted after 
reasonable notice and public hearing. Section 110(l) of the Act 
similarly provides that each revision to an implementation plan 
submitted by a state under the Act must be adopted by such state after 
reasonable notice and public hearing. The EPA also 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.
    The State of New Mexico held a public hearing onOctober 8, 1993, to 
entertain public comment on proposed revisions to AQCRs 602, 605, 651, 
and 652 addressing enforceability corrections, including the removal of 
AQCR 605 from the New Mexico SIP. There were no written public comments 
submitted in conjunction with the public hearing. Following the public 
hearing and consideration of hearing comments, the revisions were 
adopted by the State and filed with the State Records and Archives 
Center on November 17, 1993. The revisions were submitted by the 
Governor to the EPA by cover letter dated January 28, 1994.
    The SIP revision package was reviewed by the EPA to determine 
completeness shortly after its submittal, in accordance with the 
completeness criteria set out at 40 CFR part 51, appendix V. A letter 
dated March 30, 1994, 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 AQCRs 602, 605, 651, and 652

    The State of New Mexico revised AQCRs 602, 605, 651, and 652 to 
correct SO2 enforceability deficiencies and to update the New 
Mexico SIP. For a detailed explanation of each change to the 
regulations being approved in this action, please refer to the 
Technical Support Document. A brief summary of the revisions is 
presented in the following paragraphs.
1. AQCR 602-Coal Burning Equipment--Sulfur Dioxide
    The amendments to AQCR 602 affect two coal-fired power plants: (1) 
The Public Service Company of New Mexico San Juan Plant; and (2) the 
Plains Electric Escalante Plant. Language was added to the regulation 
to protect the three-hour SO2 NAAQS, and excess emissions 
reporting requirements were clarified. The remainder of the revisions 
being approved in this action resulted from clarifying, renumbering, 
and updating certain sections of the regulation. These changes 
represent small and noncontroversial revisions.
2. AQCR 605--Oil Burning Equipment--Sulfur Dioxide
    The revision of AQCR 605 consisted of the deletion of this 
regulation from the New Mexico SIP. The requirements of AQCR 605 have 
never applied to a facility within the State because no existing 
facility has ever burned enough oil to trigger the regulation's 
emission limit. In the future, major sources within the State which 
burn oil on a partial or standby basis will be governed by the upcoming 
operating permits program. Sulfur dioxide emissions from oil burning 
new sources, both minor and major, will be governed by the new source 
review permits program as well as by the Federal new source performance 
standards for industrial boilers (40 CFR part 60, subparts Db and Dc).
3. AQCR 651--Sulfuric Acid Production Units--Sulfur Dioxide, Acid Mist 
and Visible Emissions
    The amendments to AQCR 651 currently do not affect any facilities 
since the two existing facilities the regulation applied to, Climax 
Chemical in Lea County and the Quivera Mining Ambrosia Lake Plant in 
Cibola County, have closed and are not currently in operation. The 
State deleted the provisions applicable to new sources because that 
language was duplicative of the State's delegated Federal new source 
performance standards (NSPS) covering these sources. Language was added 
to the regulation to protect the three-hour SO2 NAAQS, and 
compliance determination methods were clarified, including the 
involvement of the EPA in the approval of equivalent test methods and 
alternative means of continuous emission monitoring (CEM) verification. 
The State also added a 15-minute cycling time provision for CEM systems 
pursuant to 40 CFR part 51, appendix P, section 3.4.2. The remainder of 
the revisions to AQCR 651 resulted from correcting typographical 
errors, and from clarifying, renumbering, and updating certain 
sections.
4. AQCR 652--Nonferrous Smelters--Sulfur
    The major revisions to AQCR 652 affect the Phelps Dodge Hidalgo 
Copper Smelter at Playas as well as any new smelters. The Phelps Dodge 
Copper Smelter at Hurley is only affected by minor revisions to this 
regulation. The major revisions to AQCR 652 specify the methods for 
calculating and reporting the sulfur removal rate for new smelters in 
accordance with a written plan developed cooperatively by the New 
Mexico Environment Department and Phelps Dodge Hidalgo, and reviewed 
and approved by the EPA. This written plan is being approved in this 
Federal Register action. In summary, the plan outlines the requirements 
for a monthly physical inventory of sulfur bearing materials plantwide, 
and for the manner in which the monthly sulfur recovery is calculated 
(dividing the tonnage of sulfur recovered by the tonnage of sulfur 
input).
    The State also added provisions calling for the use of best 
engineering practices regarding fugitive sulfur emissions from new 
nonferrous smelters. Compliance determination methods were also 
clarified and revised to include the involvement of the EPA in the 
approval of equivalent test methods and alternative means of CEM 
verification. In addition, reporting and recordkeeping provisions were 
added for new nonferrous smelters. The remainder of the revisions to 
the regulation resulted from clarifying, renumbering, and updating 
certain sections.

Final Action

    The EPA is approving a revision to the New Mexico SIP to include 
revisions to AQCRs 602, 605, 651, and 652. These revisions correct 
enforceability deficiencies and strengthen the provisions of AQCRs 602, 
651, and 652, and remove AQCR 605 from the New Mexico SIP as discussed 
above. The revisions were filed with the State Records and Archives 
Center on November 17, 1993, and were submitted by the Governor to the 
EPA by cover letter dated January 28, 1994.
    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. However, in a separate 
document in this Federal Register publication, the EPA is proposing to 
approve the SIP revision should adverse or critical comments be filed. 
Thus, this action will be effective January 17, 1995 unless, by 
December 19, 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 a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective January 17, 1995.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors, and in relation to relevant statutory and 
regulatory requirements.

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 
Act 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 Act, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Act 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 Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 17, 1995. 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

    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Reporting and recordkeeping requirements, Sulfur dioxide.

    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: October 26, 1994.
William 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)(58) to read 
as follows:


Sec. 52.1620  Identification of plan.

* * * * *
    (c) * * *
    (58) A revision to the New Mexico State Implementation Plan (SIP) 
to include revisions to AQCRs 602, 605, 651, and 652, submitted by the 
Governor by cover letter dated January 28, 1994. The revision to AQCR 
605 consists of removing AQCR 605 from theNew Mexico SIP.
    (i) Incorporation by reference.
    (A) Revisions to New Mexico Air Quality Control Regulation 602-Coal 
Burning Equipment-Sulfur Dioxide, Section A.1, Section A.2, Section 
A.3, Section B.1, Section C.1, Section E.2.a, Section E.2.d, Section 
F.1.b, Section F.7 and Section G, as filed with the State Records and 
Archives Center on November 17, 1993.
    (B) Revisions to New Mexico Air Quality Control Regulation 651-
Sulfuric Acid Production Units-Sulfur Dioxide, Acid Mist and Visible 
Emissions, Section A, Section B, Section C, Section D, Section E, 
Section F, Section G and Section H, as filed with the State Records and 
Archives Center on November 17, 1993.
    (C) Revisions to New Mexico Air Quality Control Regulation 652-
Nonferrous Smelters-Sulfur, Section B.2, Section C.1, Section D, 
Section G, Section H, Section I, Section J, Section K and Section L, as 
filed with the State
Records and Archives Center on November 17, 1993.
    (ii) Additional material.
    (A) The document entitled ``Hidalgo Smelter Sulfur Recovery 
Procedures,'' including appendix 1, ``Physical Inventory for Sulfur 
Recovery Calculations,'' and appendix 2, ``Monthly Sulfur Recovery 
Calculation.''
[FR Doc. 94-28485 Filed 11-17-94; 8:45 am]
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