[Federal Register Volume 60, Number 6 (Tuesday, January 10, 1995)]
[Rules and Regulations]
[Pages 2527-2534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-547]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[NM002; FRL-5136-1]


Clean Air Act Interim Approval of Operating Permits Program; City 
of Albuquerque Environmental Health Department, Air Pollution Control 
Division

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating interim approval of the operating 
permits program submitted by the New Mexico Governor's designee, Mr. 
Lawrence Rael, for the City of Albuquerque as Chief Administrative 
Officer, and for Bernalillo County as the administrative head of the 
Albuquerque/Bernalillo County Operating Permits Program, for the 
[[Page 2528]] purpose of complying with Federal requirements for an 
approvable program to issue operating permits to all major stationary 
sources, and to certain other sources with the exception of Indian 
Lands.

DATES: This direct final rule is effective on March 13, 1955 unless 
adverse or critical comments are received by February 9, 1995.

ADDRESSES: Written comments on this action should be addressed to Ms. 
Jole C. Luehrs, Chief, New Source Review Section, at the EPA Region 6 
Office listed. Copies of the City's submittal and other supporting 
information used in developing the final rule are available for 
inspection during normal business hours at the following locations. 
Interested persons wanting to examine these documents should make an 
appointment with the appropriate office at least 24 hours before 
visiting day.
    Environmental Protection Agency, Region 6, Air Programs Branch (6T-
AN), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733. City of 
Albuquerque/Bernalillo County, Environmental Health Department, One 
Civic Plaza, NW., room 3023, Albuquerque, New Mexico 87103.

FOR FURTHER INFORMATION CONTACT: Adele D. Cardenas, New Source Review 
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
suite 700, Dallas, Texas 75202-2733, telephone 214-665-7210.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    In title V of the 1990 Clean Air Act Amendments (sections 501-507 
of the Clean Air Act (``the Act'')), the EPA has promulgated rules 
which define the minimum elements of an approvable State/local 
operating permits program, and the corresponding standards and 
procedures by which the EPA will approve, oversee, and withdraw 
approval of a State/local operating permits program (see 57 FR 32250 
(July 21, 1992)). These rules are codified at 40 Code of Federal 
Regulations (CFR) part 70. Title V requires States/local areas to 
develop, and submit to EPA, programs for issuing these operating 
permits to all major stationary sources and to certain other sources.
    The Act requires that States/local areas develop and submit these 
programs to the EPA by November 15, 1993, and that the EPA act to 
approve or disapprove each program within one year after receiving the 
submittal. The EPA's program review occurs pursuant to section 502 of 
the Act and the part 70 regulations which together outline criteria for 
approval and disapproval. Where a program substantially, but not fully, 
meets the requirements of part 70, the EPA may grant the program 
interim approval for a period of up to two years. If the EPA has not 
fully approved a program by two years after the date of November 15, 
1993, or by the end of an interim program, it must establish and 
implement a Federal program.
    The EPA is publishing this action without prior proposal because 
the EPA views this as a noncontroversial action and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing interim approval of the 
operating permits program submitted by the City of Albuquerque/
Bernalillo County should adverse or critical comments be filed. Under 
the procedures established in the May 10, 1994, Federal Register, this 
action will be effective on March 13, 1995 unless, by February 9, 1995 
adverse or critical comments are received.

II. Proposed Action and Implications

    If the EPA receives such comments, 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. 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 on March 13, 1995.

A. Analysis of City/County Submission

1. Support Materials
    Pursuant to section 502(d) of the Act, the State/local area is 
required to develop and submit to the Administrator an operating 
permits program under State or local law or under an interstate compact 
meeting the requirements of title V of the Act. Bernalillo County and 
the City of Albuquerque within the County are granted the authority to 
administer a local air pollution control program by the New Mexico Air 
Quality Control Act. The Air Pollution Control Division (APCD) of the 
City of Albuquerque Environmental Health Department requested in the 
original submittal, under the signature of Governor Bruce King, 
approval with full authority to administer the City of Albuquerque/
Bernalillo County Operating Permits Program, prepared by APCD, in all 
areas of Bernalillo County in the State of New Mexico with the 
exception of Indian lands.
    Pursuant to NMSA 1978 section 74-2-1 et seq. (Repl. Pamph. 1993), 
Bernalillo County and the City of Albuquerque have created a joint 
local authority, the Albuquerque/Bernalillo County Air Quality Control 
Board, to adopt regulations, administer and enforce the State Air 
Quality Control Act, the City Joint Air Quality Control Ordinance and 
the Air Quality Control Board Regulations within Bernalillo County.
    The City of Albuquerque/Bernalillo County submitted their final 
operating permits program to the EPA Regional Office on April 4, 1994. 
The title V program covering the City and County was signed by the 
Governor's designee Mr. Lawrence Rael, for the City of Albuquerque as 
Chief Administrative Officer and for Bernalillo County as the 
administrative head of the Albuquerque/Bernalillo County Operating 
Permits Program, for the purpose of complying with Federal 
requirements.
    In the APCD operating permits program submittal, the City of 
Albuquerque/Bernalillo County does not assert jurisdiction over Indian 
lands or reservations. To date, no tribal government in New Mexico has 
authority to administer an independent air program in the County of 
Bernalillo. Upon promulgation of the Indian air regulations, Indian 
tribes will then be able to apply as States, and receive the authority 
from the EPA to implement an operating permits program under title V of 
the Act. The EPA will, where appropriate, conduct a Federal title V 
operating permits program in accordance with forthcoming EPA 
regulations, for those Indian tribes which do not apply for treatment 
as States under the Act.
    The City of Albuquerque/Bernalillo County submittal provided an 
operating permits program plan which outlines items in the following 
sections: Item II--``Operating Permits Program Description,'' addresses 
40 CFR 70.4(b)(1) by describing how APCD intends to carry out its 
responsibilities under the part 70 regulations. The program description 
addresses the following areas: (A) Organizational structure, (B) 
Regulations, guidelines, policies and procedures, and (C) Future 
regulatory actions (40 CFR 70.4(b)(3)(i) and (v)). The program 
description has been deemed to be appropriate for meeting the 
requirement of 40 CFR 70.4(b)(1).
    Pursuant to 40 CFR 70.4(b)(3), the Governor or his designee is 
required to [[Page 2529]] submit a legal opinion from the Attorney 
General (or the attorney for the State or local air pollution control 
agency that has independent legal counsel) demonstrating adequate 
authority to carry out all aspects of a title V operating permits 
program. The Albuquerque City Attorney submitted a Final City 
Attorney's Opinion and a First and Second Supplemental City Attorney's 
Opinion on behalf of both the City of Albuquerque and Bernalillo 
County.
    This is because, as explained in the Second Supplemental City 
Attorney's Opinion, the City Attorney provides legal advice to the City 
pursuant to City Ordinance 1-20-1 R.O. 1974, and the City Attorney, 
with the consent of Bernalillo County, is independent counsel for the 
joint Albuquerque/Bernalillo County Air Quality Control Board. The 
administrative agency for this joint board is the City Environmental 
Health Department, as provided in Albuquerque/Bernalillo County AQC 
regulations 2.12 and 1.13. The APCD, a subdivision of the City 
Environmental Health Department, was given the responsibility of 
preparing and implementing the City/County title V program. Therefore, 
under the authority of NMSA 1978 section 74-2-1, et seq., and 
consistent with his role as independent counsel for the City of 
Albuquerque/Bernalillo County Air Quality Control Board and the City 
Environmental Health Department, the City Attorney in his First and 
Second Supplemental City Attorney's Opinion addressed the required 
authority to implement the City/County's title V operating permits 
program.
    As explained in the Second Supplemental City Attorney's Opinion, 
the City Amended Ordinance and the County Amended Ordinance do not 
repeat the felony violation language of Air Quality Control (AQC) Act 
section 74-2-14.C verbatim. This is because of a New Mexico 
Constitutional requirement that felony violations must be initiated and 
prosecuted by the State Attorney General or the State District 
Attorney. State law requires all violations of City and County 
ordinances to be prosecuted in Metropolitan Court, for which the New 
Mexico Constitution limits jurisdiction to non-felony cases. Therefore, 
the City and County ordinances do not state that the felony violations 
detailed in AQC Act section 74-2-14.C are also ordinance violations. 
Since State statute requires that felonies committed within the City 
and County be initiated and prosecuted by the State Attorney General or 
District Attorney, this is not an obstacle to part 70 approval.
    The legal opinions submitted by the City Attorney demonstrate 
adequate legal authority as required by Federal law and regulation to 
implement and enforce a part 70 operating permits program except with 
regard to criminal fine authority as discussed below. The City 
Attorney, in Albuquerque's Final City Attorney's Opinion, acknowledged 
that the EPA had determined that a statutory revision would be required 
to render the State's criminal fine authority consistent with the 
requirements of 40 CFR 70.11 (a)(3)(ii).
    The State statutes and City and County ordinances cited in the 
Final City Attorney's Opinion for Albuquerque/Bernalillo County 
authorize the imposition of criminal fines in the amounts of only 
$1,000 and $5,000 for misdemeanor and felony violations, respectively, 
rather than the $10,000 per violation amounts required by 40 CFR 
70.11(a)(3)(ii) for knowing violations of applicable requirements, 
permit conditions and fee and filing requirements. Further, those 
statutes and ordinances do not appear to authorize the fine amounts to 
be imposed per day per violation as required by 40 CFR 70.11(a)(3)(ii). 
Although these defects in criminal fine authority preclude the EPA from 
granting full approval of the City/County's operating permits program 
at this time, the EPA may grant interim approval, subject to the State, 
City and County obtaining and submitting to the EPA the needed criminal 
fine authority within 18 months after the Administrator's approval of 
the Albuquerque/Bernalillo County title V program pursuant to 40 CFR 
70.4(f)(2). This will need to be accomplished through statutory 
revisions by the State of New Mexico and revisions to the City Joint 
AQC Board Ordinance and the County Joint AQC Board Ordinance by the 
City and County consistent with the amendments to State statute, and 
submission of those revisions to the EPA within the prescribed 18-month 
period.
    As noted in the City Attorney's cover letter accompanying 
Albuquerque's First Supplemental City Attorney's Opinion, the State 
statute which provides for the delegation of authority from the State 
to Albuquerque/Bernalillo County for the City/County's operating 
permits program, New Mexico Statutes Annotated (NMSA) 1978 section 74-
2-4, provides that any ordinances adopted by the City/County must be 
consistent with the substantive provisions of State statute and provide 
for standards and regulations not lower than those required by 
regulations adopted by the New Mexico Environmental Improvement Board. 
Therefore, as explained in the above-mentioned City Attorney's cover 
letter, the City/County rely on the interpretation of the State 
Attorney General contained in the Attorney General's Opinion and 
Supplemental Attorney General's Opinion submitted with the New Mexico 
Operating Permits Program, with respect to a number of issues discussed 
below.
    The City/County rely on the State's Supplemental Attorney General's 
Opinion submitted as part of the New Mexico Operating Permits Program 
and contained in the EPA's docket for the New Mexico part 70 program, 
in their interpretation of NMSA 1978 section 74-2-14.E with regard to 
the underlying criminal fine authority required by 40 CFR 
70.11(a)(3)(iii) for tampering and false statement. The Albuquerque 
Supplemental City Attorney's Opinion and accompanying cover letter also 
reflect that the City and County rely on the requirements of NMSA 1978 
section 74-2-4 for their interpretation of the identical City Amended 
Ordinance, section 6-16-17.B, and the identical County Amended 
Ordinance, section 17.B, consistent with State statute.
    The EPA is also relying on the State's interpretation of its 
statute, NMSA 1978 section 74-2-14.E set out in New Mexico's 
Supplemental Attorney General's Opinion referenced above, as 
demonstrating that New Mexico law allows criminal fines of at least 
$10,000 per day for each act of tampering and for each false statement 
as required by 40 CFR 70.11(a)(3)(iii), and on the City and County 
interpretation of their identical provisions in the City and County 
Amended Ordinances reflected in Albuquerque's First Supplemental City 
Attorney's Opinion consistent with this statutory interpretation as 
meeting the Federal requirement.
    40 CFR 70.4(b)(3)(i) requires that a State/local agency demonstrate 
adequate legal authority to issue permits and assure compliance with 
each applicable requirement of 40 CFR part 70. Both the New Mexico 
regulation, Air Quality Control Regulation (AQCR) 770.III.C.1.d and the 
Albuquerque/Bernalillo County regulation, Air Quality Control (AQC) 
41.03(C)(1)(d), state that ``the department may impose conditions 
regulating emissions during start-up and shutdown.'' The EPA is relying 
on the State's interpretation of this language, discussed in the 
State's Supplemental Attorney General's Opinion referenced above, and 
the City/County interpretation of their corresponding regulation as set 
out in Albuquerque's First Supplemental City Attorney's Opinion, in 
interpreting this language to [[Page 2530]] allow the permitting 
authority to impose requirements which exceed title V applicable 
requirements, but not to waive any title V requirements for title V 
sources.
    40 CFR 70.4(b)(4) requires the submission of relevant permitting 
program documentation not contained in the regulations, such as permit 
forms and relevant guidance to assist in the City's implementation of 
its permits program. The City of Albuquerque/Bernalillo County address 
this requirement in the operating permits program plan part of the 
submittal under Section IV--Appendices B, C and H.
2. Regulations and Program Implementation
    The City of Albuquerque/Bernalillo County have submitted Air 
Quality Control (AQC) regulation No. 41--``Operating Permit 
Regulations'' and AQC No. 21--``Fee Regulations,'' for implementing the 
City of Albuquerque/Bernalillo County part 70 program as required by 40 
CFR 70.4(b)(2). Sufficient evidence of their procedurally correct 
adoption was submitted in the final submittal on April 4, 1994. Copies 
of all applicable State and local statutes and regulations which 
authorize the part 70 program, including those governing State/City 
administrative procedures, were submitted with the City's program. The 
City of Albuquerque/Bernalillo County also submitted a list of 
insignificant activities with the submittal for the EPA's review and 
approval with the City/County operating permits program. This list, 
which underwent the City/County public participation process during the 
operating permits regulation hearing, is being approved by the Regional 
Office with this document. The list can be found in the submittal under 
Item II--``Operating Permits Program Description,'' Attachment II-3--
``List of Insignificant Activities.''
    The City of Albuquerque/Bernalillo County operating permits 
regulations followed the State of New Mexico operating permits 
regulation AQCR 770. The State's regulations follow part 70 very 
closely with a few exceptions. The cross-reference chart submitted with 
the State's operating permits program submission can also be used for 
reviewing the City/County's program due to the close similarity of the 
State and City/County permit regulations. The New Mexico submittal 
addresses the cross-reference chart under Item VI--``Various 
Provisions'', Attachment VI-1, indicating where each paragraph of the 
part 70 regulation is addressed in AQCR 770. The City submitted AQC 41, 
the Operating Permits Regulations for the City, as Attachment I in the 
Final City Attorney's Opinion. The following requirements, set out in 
the EPA's part 70 operating permits program review, are addressed in 
the operating permits program plan and in AQC 41--Attachment I of the 
City/County's submittal as follows: (A) Applicability criteria, 
including any criteria used to determine insignificant activities or 
emissions levels (40 CFR 70.4(b)(2)): AQC 41.02, ``List of 
Insignificant Activities''; (B) Provisions for continuing permits or 
permit terms if a timely and complete application is submitted, but 
action is not taken on a request prior to permit expiration (40 CFR 
70.4(b)(10)): AQC 41.04(A)(4); (C) Provisions for action on permit 
applications (40 CFR 70.4(b)(6)): AQC 41.04(A)(3); (D) Provisions for 
permit content (including 40 CFR 70.4(b)(16)): all applicable 
requirements: AQC 41.03(C)(1); a fixed term: AQC 41.03(C)(2); 
monitoring and related recordkeeping and reporting requirements: AQC 
41.03(C)(3) through (5); source compliance requirements: AQC 
41.03(C)(7); (E) Operational flexibility provisions (40 CFR 
70.4(b)(12)): AQC 41.03(C)(8); (F) Provisions for permit issuance, 
renewals, reopenings and revisions, including public, the EPA and 
affected State review to be accomplished in an expeditious manner (40 
CFR 70.4(b)(13) and (16)): AQC 41.04; and (G) If the permitting 
authority allows off-permit changes, provisions assuring compliance 
with sections 70.4(b)(14) and (15): AQC 41(C)(9). The AQC regulations 
in section 41.04(H) provide that applicants can receive variances from 
non-Federal conditions only. The City/County prevent any source from 
receiving a variance from any AQC 41 or part 70 requirement. The City 
of Albuquerque/Bernalillo County's definition of ``title I 
modification'' does not include changes reviewed under a minor new 
source preconstruction review program (``minor NSR changes''). The EPA 
is currently in the process of determining the proper definition of 
that phrase. As further explained below, EPA has solicited public 
comment on whether the phrase ``modification under any provision of 
title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) should be 
interpreted to mean literally any change at a source that would trigger 
permitting authority review under regulations approved or promulgated 
under Title I of the Act. This would include State preconstruction 
review programs approved by EPA as part of the State Implementation 
Plan under section 110(a)(2)(C) of the Clean Air Act and regulations 
addressing source changes that trigger the application for National 
Emission Standard for Hazardous Air Pollutants (NESHAP) established 
pursuant to section 112 of the Act prior to the 1990 Amendments.
    For the reasons set forth in the EPA's proposed rulemaking to 
revise the interim approval criteria of 40 CFR part 70 (59 FR 44572, 
August 29, 1994), the EPA believes the phrase ``modification under any 
provision of title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) is best 
interpreted to mean literally any change at a source that would trigger 
permitting authority review under regulations approved or promulgated 
under title I of the Act. This would include State/local 
preconstruction review programs approved by EPA as part of the State 
Implementation Plan under section 110(a)(2)(C) of the Act and 
regulations addressing source changes that trigger the application of 
NESHAPs established pursuant to section 112 of the Act prior to the 
1990 amendments, and would include minor NSR changes not covered under 
the City of Albuquerque/Bernalillo County operating permits program's 
definition of ``title I modification''.
    On August 29, 1994, the EPA proposed revisions to its criteria for 
interim approval of State/local operating permits programs under 40 CFR 
70.4(d) to allow State/local operating permits programs with a narrower 
definition of ``title I modification'' like the City of Albuquerque/
Bernalillo County's to receive interim approval (59 FR 44572). The EPA 
also solicited public comment on the proper interpretation of ``title I 
modification.'' (59 FR 44572, 44573). The EPA stated that if, after 
considering the public comments, it continued to believe that the 
phrase ``title I modifications'' should be interpreted as including 
minor NSR changes, it would revise the interim approval criteria as 
needed to grant States/locals that adopted a narrower definition, 
interim approval.
    The EPA intended to finalize its revisions to the interim approval 
criteria under 40 CFR 70.4(d) before taking final action on part 70 
operating permits programs submitted by the State/locals. However, it 
will not be possible to delay approval of operating permits programs 
until final action has been taken on EPA's proposed revisions to the 
part 70 interim approval criteria. This is because publication of the 
proposed revisions was delayed until August 29, 1994, and the EPA 
received several requests to extend the public comment 
[[Page 2531]] period until November 27, 1994.\1\ Given the importance 
of the issues in that rulemaking to States/locals, sources and the 
public, but mindful of the need to take action quickly, the EPA agreed 
to extend the comment period until October 28, 1994 (see 59 FR 52122 
(October 14, 1994)). Consequently, final action to revise the interim 
approval criteria will not occur before the deadline for EPA action on 
State/local operating permits programs such as the City of Albuquerque/
Bernalillo County's, that were submitted on or before November 15, 
1993.\2\ The EPA believes it would be inappropriate to delay action on 
the City of Albuquerque/Bernalillo County's operating permits program, 
perhaps for several months, until final action is taken on the proposed 
revisions to the part 70 interim approval criteria. The EPA also 
believes it would be inappropriate to grant interim approval to the 
City of Albuquerque/Bernalillo County on this issue before final action 
is taken to revise the current interim approval criteria of 40 CFR 
70.4(b) to provide a legal basis for such an interim approval. Until 
the revision to the interim approval criteria is promulgated, the EPA's 
choices are to either fully approve or disapprove the narrower ``title 
I modification'' definition in States/locals such as the City of 
Albuquerque/Bernalillo County. For the reasons set forth below, the EPA 
believes that disapproving such operating permits programs at this time 
based solely on this issue would be inappropriate.

    \1\EPA originally established a 30-day public comment period for 
the August 29, 1994, proposal. In response to several requests for 
extension, however, EPA agreed to allow an additional thirty days 
for public comments. See 59 FR 52122 (October 14, 1994).
    \2\Section 502(d) requires, in relevant part, that ``[n]ot later 
than 1 year after receiving a program, and after notice and 
opportunity for public comment, the Administrator shall approve or 
disapprove such program, in whole or in part.''
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    First, the EPA has not yet conclusively determined that a narrower 
definition of ``title I modification'' is incorrect and thus a basis 
for disapproval (or even interim approval). The EPA has received 
numerous comments on this issue as a result of the August 29, 1994, 
Federal Register document, and the EPA cannot and will not make a final 
decision on this issue until it has evaluated all comments on that 
proposed rulemaking. Second, the EPA believes that the City of 
Albuquerque/Bernalillo County Operating Permits Program should not be 
disapproved because the EPA itself has not yet been able to resolve 
this issue through rulemaking. Moreover, disapproving operating permits 
programs from States/locals such as the City of Albuquerque/Bernalillo 
County that submitted their operating permits programs to the EPA on or 
before the November 15, 1993, statutory deadline, could lead to the 
unfair result that these States/locals would receive disapprovals, 
while States/locals which were late in submitting operating permits 
programs could take advantage of revised interim approval criteria 
should those criteria become final. In effect, States/locals would be 
severely penalized for having made timely operating permits program 
submissions to the EPA. Finally, disapproval of a State/local operating 
permits program for a potential problem that primarily affects permit 
revision procedures would delay the issuance of part 70 permits, 
hampering State/local/Federal efforts to improve environmental 
protection through the operating permits program.
    For the reasons mentioned above, the EPA is approving the City of 
Albuquerque/Bernalillo County Operating Permits Program's use of the 
narrower definition of ``title I modification'' at this time.\3\ 
However, should the EPA in the interim approval criteria rulemaking 
make a final determination that such a narrow definition of ``title I 
modification'' is incorrect and that a revision of the interim approval 
criteria is warranted, the EPA will propose further action on City of 
Albuquerque/Bernalillo County's operating permits program so that the 
City/County's definition of ``title I modification'' could become 
grounds for interim approval requiring revision prior to the EPA's 
granting of full approval to that program.\4\ An operating permits 
program like the City of Albuquerque/Bernalillo County's that receives 
full approval of its narrower ``title I modification'' definition 
pending completion of the EPA's rulemaking must ultimately be placed on 
an equal footing with programs of States/locals that receive interim 
approval in later months under any revised interim approval criteria 
because of the same issue. Converting the full approval on this issue 
to an interim approval after the EPA completes its rulemaking would 
avoid this inequity. The EPA anticipates that an action to convert the 
full approval on the ``title I modification'' issue to an interim 
approval would be effected through an additional rulemaking, so as to 
ensure that there is adequate notice of the change in approval status.

    \3\At the present time, therefore, the EPA is not construing 40 
CFR sections 70.7(e)(2)(i)(A)(3) and 70.7(e)(2)(i)(A)(5) to prohibit 
Albuquerque/Bernalillo County from allowing minor NSR changes to be 
processed as minor permit modifications.
    \4\State programs with a narrower ``title I modification'' 
definition that are acted upon by EPA after an Agency decision that 
such a narrower definition is inappropriate would be considered 
deficient, but would be eligible for interim approval under revised 
40 CFR section 70.4(b).
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3. Permit Fee Demonstration
    In AQC 21, the City/County's fee regulation, the City/County board 
established fees for criteria air pollutants which are below the 
presumptive minimum set out in 40 CFR 70.9(b)(2)(iv). The City/County 
regulation allows for a fee of $22.00 per ton for criteria pollutants 
based on allowable emissions at major sources as defined in AQC Number 
41--``Operating Permits'' regulations. For facilities which are also 
major for hazardous air pollutants (HAP), the fees are $250 per ton for 
the 189 HAPs listed in title III of the 1990 Amendments. These fees, 
when converted using the EPA criteria, result in the collection of an 
average of $29.84 per ton for title V sources. The City/County board, 
after careful review, determined that these fees would support the 
title V permit program costs as required by 40 CFR 70.9(a). The City of 
Albuquerque/Bernalillo County explain in their fee demonstration that 
they chose this fee structure because it allowed for program costs to 
be covered without unduly penalizing any industry, and the fees 
generated would meet, but not likely exceed, program costs. The APCD 
will conduct a periodic review of the program fee schedule. The City of 
Albuquerque/Bernalillo County fee demonstration shows that this fee 
schedule meets the requirements for an operating permits program in the 
City of Albuquerque and Bernalillo County. The APCD will collect 
$292,518 dollars per year to support all applicable part 70 activities 
for the City/County. The APCD projects the direct cost to fund the 
operation of the title V program to be approximately $195,000 dollars 
per year, and the indirect cost to be approximately $97,500. The APCD 
anticipates increasing its air quality staff by 6.3 new full time 
employees, a total of \1/3\ of the existing air program staff. Any 
changes in the fees would need to be made by APCD through the 
Albuquerque/Bernalillo County Air Control Board.
4. Provisions Implementing the Requirements of Other Titles of the Act
    The City of Albuquerque/Bernalillo County acknowledge that their 
request for approval of a part 70 program is also a request for 
approval of a program for [[Page 2532]] delegation of unchanged section 
112 standards under the authority of section 112(l) as they apply to 
part 70 sources. Upon receiving approval under section 112(l), the City 
of Albuquerque/Bernalillo County may receive delegation of any new 
authority required by section 112 of the Act through the delegation 
process.
    The City of Albuquerque/Bernalillo County have the option at any 
time to request, under section 112(l) of the Act, delegation of section 
112 requirements in the form of City regulations which the City/County 
demonstrate are equivalent to the corresponding section 112 provisions 
promulgated by the EPA. At this time, the City/County plan to use the 
mechanism of incorporation by reference to adopt unchanged Federal 
section 112 requirements into their regulations.
    The radionuclide NESHAP is a section 112 regulation and therefore, 
also an applicable requirement under the City/County operating permits 
program for part 70 sources. There is not yet a Federal definition of 
``major'' for radionuclide sources. Therefore, until a major source 
definition for radionuclides is promulgated, no source would be a major 
section 112 source solely due to its radionuclide emissions. However, a 
radionuclide source may, in the interim, be a major source under part 
70 for another reason, thus requiring a part 70 permit. The EPA will 
work with the City/County in the development of their radionuclide 
program to ensure that permits are issued in a timely manner.
    Section 112(g) of the Act requires that, after the effective date 
of a permits program under title V, no person may construct, 
reconstruct or modify any major source of any HAPs unless the State/
local agency determines that the maximum achievable control technology 
(MACT) emission limitation under section 112(g) will be met. Such 
determination must be made on a case-by-case basis where no applicable 
limitations have been established by the Administrator. During the 
transition period from the title V effective date to the date the City/
County have taken appropriate action to implement the final section 
112(g) Federal rule, proposed on April 1994 (59 FR 15504), (either by 
adoption of the unchanged Federal rule or approval of an existing State 
rule under section 112(l)), the City of Albuquerque/Bernalillo County 
intend to implement section 112(g) of the Act through the City/County's 
preconstruction process using a two-pronged approach.
    Immediately upon approval of their operating permits program, the 
City/County intend to implement section 112(g) through their existing 
preconstruction rule, AQC Regulation 20. This rule was previously 
approved by the EPA to implement the preconstruction requirements of 
title I of the Act.
    The second phase of the City/County's section 112(g) implementation 
approach during the transition period is expected to be based on the 
City/County board's adoption of the New Mexico State rule, AQCR 755, 
into their existing City/County regulations, AQC Regulation 20 and 
Regulation 41. The New Mexico State rule, AQCR 755 clarifies the 
requirements set out in the proposed Federal section 112(g) rule and 
its preamble.
    The City/County anticipate that the incorporation of the language 
of the State rule into City/County AQC Regulations 20 and 41 will be 
effective by mid-March 1995. When final, this incorporation is expected 
to enhance the mechanism contained in Albuquerque's existing 
preconstruction rule, AQC Regulation 20, for the implementation of 
section 112(g). If the New Mexico State rule AQCR 755 is not finally 
incorporated by the City/County, or is incorporated with substantial 
changes from the State rule as promulgated, the City/County rule, AQC 
Regulation 20 will continue to provide authority for the implementation 
of Federal section 112(g). After the final Federal section 112(g) rule 
is promulgated, the City/County will be required to formally revise 
their rules accordingly.
    The City of Albuquerque/Bernalillo County commit to appropriately 
implementing the existing and future requirements of sections 111, 112, 
and 129 of the Act, and all MACT standards promulgated in the future, 
in a timely manner. This includes a commitment to implement both 
promulgated section 112 Federal standards and section 112 requirements 
such as section 112(g) that are not federally promulgated standards.
    The City of Albuquerque/Bernalillo County commit to having an acid 
rain program in place by April 1995. The EPA acknowledges that this 
date, which is later than the January 1, 1995, date set out in the EPA 
policy, is a result of the fact that Albuquerque/Bernalillo County will 
rely on the State's regulations for the development of their final acid 
rain regulations. Therefore, the City/County rule adoption process 
requires that they await final action on the State's rules prior to 
taking final action on their acid rain rules. This is consistent with 
the requirement of NMSA section 74-2-4, that the City/County 
requirements be no less stringent than the corresponding State 
requirements. The State will meet the January 1995 date as required in 
policy drafted by the Acid Rain Division, and the City of Albuquerque/
Bernalillo County will have their acid rain program in place by April 
1995. The City/County commit to submitting copies of their draft acid 
rain rules, regulations and guidance for review and comment to meet the 
Federal implementation date to issue permits by December 1997.
5. Enforcement Provisions
    The APCD's operating permits program submittal addressed the 
enforcement requirements of 40 CFR 70.4(b)(4)(ii) and 70.4(b)(5) in the 
operating permit program plan, Section IV(E)--``Operating Permit 
Program Enforcement Procedures.'' A copy of the signed Memorandum of 
Understanding between the EPA Region 6 and the APCD is kept in the 
Region 6 file room. This document, which is a product of negotiations 
between the EPA Region 6 and the APCD, was signed prior to the 
submittal date of the operating permits program. The Operating Permits 
Program Plan, Sections IV(D), IV(E) and IV(F) of the City/County's 
submittal, addresses the following issues: (A) Compliance tracking and 
enforcement plan (40 CFR 70.4(b)(4)(ii) and 70.4(b)(5)); (B) Commitment 
to submit enforcement information (40 CFR 70.4(b)(9)); and (C) 
Enforcement authority (40 CFR 70.4(b)(2) and 70.4(b)(3)(vii)).
6. Technical Support Document
    The results of this review are shown in the document entitled 
``Technical Support Document,'' which is available in the docket at the 
locations noted above. The technical support documentation shows that 
all operating permits program requirements of part 70 and relevant 
guidance were met by the submittal for the APCD, except with regard to 
criminal fine authority.
7. Summary
    The City of Albuquerque/Bernalillo County submitted to the EPA, an 
operating permits program under a cover letter dated March 25, 1994, 
from the New Mexico Governor's designee Mr. Lawrence Rael, for the City 
of Albuquerque as Chief Administrative Officer and for Bernalillo 
County as the administrative head of the Albuquerque/Bernalillo County 
Operating Permits Program. This program was submitted for the purpose 
of complying with Federal requirements regarding an operating permits 
program. The submittal has adequately addressed all sixteen (16) 
elements required for [[Page 2533]] full approval as discussed in part 
70, except with regard to criminal fine authority. The City of 
Albuquerque/Bernalillo County addressed appropriately all requirements 
necessary to receive interim approval of the City/County's operating 
permits program pursuant to title V, the 1990 Amendments and 40 CFR 
part 70.

B. Options for Approval/Disapproval and Implications

    The EPA is promulgating interim approval of the operating permits 
program submitted by the City of Albuquerque for Albuquerque/Bernalillo 
County on April 4, 1994. Interim approvals under section 502(g) of the 
Act do not create any new requirements, but simply approve requirements 
that the State/local area is already imposing. The City/County must 
make the following changes for this program to receive full approval: 
Following the State's correction of the statutory defect in criminal 
fine authority, correct the corresponding defects in City and County 
Ordinances for Albuquerque and Bernalillo County. In addition to 
raising the criminal fine amounts to at least $10,000 for all offenses 
listed in 40 CFR 70.11(a)(3)(ii), statutory and ordinance revisions 
must provide authority for the imposition of those fines on a per day 
per violation basis, as required by 40 CFR 70.11(a)(3)(ii).
    Evidence of these statutory and ordinance revisions and their 
procedurally correct adoption must be submitted to the EPA within 18 
months of the EPA's approval of the Albuquerque/ Bernalillo County 
Operating Permits Program. This interim approval, which may not be 
renewed, extends for a period of two years. During the interim approval 
period, the City of Albuquerque/Bernalillo County are protected from 
sanctions for failure to have a program, and the EPA is not obligated 
to promulgate a Federal permit program in the City of Albuquerque/ 
Bernalillo County. Permits issued under a program with interim approval 
have full standing with respect to part 70, and the one-year time 
period for submittal of permit applications by subject sources begins 
upon interim approval, as does the three-year time period for 
processing the initial permit applications.
    If this interim approval is converted to a disapproval, it will not 
affect any existing City/County requirements applicable to small 
entities. Federal disapproval of the City of Albuquerque/Bernalillo 
County submittal would not affect its local enforceability. Moreover, 
the EPA's disapproval of the submittal would not impose a new Federal 
requirement. Therefore, the EPA certifies that such a disapproval 
action would not have a significant impact on a substantial number of 
small entities because it would not remove existing City requirements 
or substitute a new Federal requirement.

III. Proposed Rulemaking Action

    In this action, the EPA is promulgating interim approval of the 
operating permits program submitted by the City of Albuquerque for 
Albuquerque/Bernalillo County. The program was submitted to EPA by the 
Governor's designee for the City/County for the purpose of complying 
with Federal requirements found in title V of the 1990 Amendments, and 
in 40 CFR part 70, which mandate that States/local areas develop, and 
submit to the EPA, programs for issuing operating permits to all major 
stationary sources, and to certain other sources with the exception of 
Indian Lands.
    Requirements for title V approval, specified in 40 CFR 70.4(b), 
encompass section 112(l)(5) requirements for approval of a program for 
delegation of Federal section 112 standards as they apply to part 70 
sources. Section 112(l)(5) requires that the State/local program 
contain adequate authorities, adequate resources for implementation, 
and an expeditious compliance schedule, which are also requirements 
under part 70. Therefore, as part of this interim approval, the EPA is 
also promulgating approval of the City/County program under section 
112(l)(5) and 40 CFR 63.91 for the purpose of the City/County receiving 
delegation of section 112 standards that are unchanged from Federal 
standards as promulgated. This program for delegations only applies to 
sources covered by the part 70 program.
    The EPA's policy is to apply sanctions to State/local programs if 
the Governor or his designee fails to submit a corrected program for 
full approval within 18 months after the due date for the submittal. If 
the City/County fail to submit a complete corrected program for full 
approval by June 10, 1996, the EPA will start an 18-month clock for 
mandatory sanctions. If the City/County program fail to submit a 
complete program before the expiration of that 18-month period, the EPA 
would impose sanctions. If the EPA disapproves the City/County's 
corrective program, and has not determined that the City/County have 
corrected the deficiency within 18 months after the disapproval, then 
the EPA must impose mandatory sanctions. In either case, if the City/
County have not come into compliance, EPA applies the first sanction. 
In addition, discretionary sanctions may be applied where warranted any 
time after the end of the interim approval period if the City/County 
have not submitted a complete corrective program or EPA has disapproved 
a corrective program. If the EPA has not granted full approval to the 
City/County program by January 10, 1997, the EPA must promulgate, 
administer, and enforce a Federal operating permits program for the 
City of Albuquerque Environmental Health Department, Air Pollution 
Control Division.
    The EPA has reviewed this submittal of the Albuquerque/ Bernalillo 
County Operating Permits Program and is promulgating interim approval. 
Certain defects in the State's statutory criminal fine authority and 
the City/County ordinances preclude the EPA from granting full approval 
of the City/County's operating permits program. The EPA is promulgating 
interim approval of the City/County operating permits program, and the 
State, City and County will need to obtain the needed criminal fine 
authority within 18 months after the Administrator's approval of this 
program pursuant to 40 CFR 70.4 in order for the City of Albuquerque/
Bernalillo County's title V program to be eligible for full approval.

IV. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this final rule. 
Copies of the City/County's submittal and other information relied upon 
for the proposed interim approval are contained in a docket maintained 
at the EPA Regional Office. The docket is an organized and complete 
file of all the information submitted to, or otherwise considered by, 
the EPA in the development of this proposed rulemaking. The principal 
purposes of the docket are:
    (1) to allow interested parties a means to identify and locate 
documents so that they can effectively participate in the rulemaking 
process, and
    (2) to serve as the record in case of judicial review. The EPA will 
consider any comments received by February 9, 1995.

B. Executive Order 12866

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

C. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., the 
EPA must prepare a regulatory flexibility analysis 
[[Page 2534]] 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.
    Operating permits program approvals under section 502 of the Act do 
not create any new requirements, but simply approve requirements that 
the City/County are already imposing. Therefore, because the Federal 
operating permits program 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/local action. The Act forbids the EPA from 
basing its actions concerning operating permits programs on such 
grounds (Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct 
1976); 42 U.S.C. 7410(a)(2)).

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedures, 
Intergovernmental relations, Operating permits.

    Dated: December 23, 1994.
A. Stanley Meiburg,
Acting Regional Administrator (6A).

    40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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

    2. Appendix A to part 70 is amended by adding paragraph (b) to the 
entry for New Mexico to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

New Mexico

* * * * *
    (b) City of Albuquerque Environmental Health Department, Air 
Pollution Control Division: submitted on April 4, 1994; effective on 
March 13, 1995; interim approval expires August 10, 1996.
* * * * *
[FR Doc. 95-547 Filed 1-9-95; 8:45 am]
BILLING CODE 6560-50-P