[Federal Register Volume 75, Number 23 (Thursday, February 4, 2010)]
[Rules and Regulations]
[Pages 5698-5701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2393]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2009-0745; FRL-9110-2]
Approval and Promulgation of Implementation Plans; Albuquerque-
Bernalillo County, NM; Excess Emissions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving revisions to the New Mexico State
Implementation Plan (SIP) submitted by the Governor of New Mexico on
behalf of the Albuquerque Environmental Health Department (AEHD) in a
letter dated September 23, 2009 (the September 23, 2009 SIP submittal).
The September 23, 2009 SIP submittal concerns revisions to New Mexico
Administrative Code Title 20, Chapter 11, Part 49, Excess Emissions
(20.11.49 NMAC--Excess Emissions) occurring during startup, shutdown,
and malfunction related activities. We are approving the September 23,
2009 SIP submittal in accordance with the requirements of section 110
of the Clean Air Act (the Act).
DATES: This direct final rule will be effective April 5, 2010 without
further notice unless EPA receives relevant adverse comments by March
8, 2010. If adverse comments are received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0815, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select
``Air'' before submitting comments.
E-mail: Mr. Guy Donaldson at [email protected]. Please
also send a copy by e-mail 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 214-665-7242.
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 No. EPA-R06-OAR-2008-
0815. The EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://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 http://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 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, at the State Air Agency listed
below during official business hours by appointment: AEHD, Air Quality
Division, One Civic Plaza, Albuquerque, NM 87102.
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6691, fax
(214) 665-7263, e-mail address shar.alan @epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to EPA.
Outline
I. Background
A. What action are we taking in this document?
B. What documents did we use in our evaluation of the September
23, 2009 SIP submittal?
C. Why are we approving the September 23, 2009 SIP submittal?
II. Final Action
III. Statutory and Executive Order Reviews
[[Page 5699]]
I. Background
A. What actions are we taking in this document?
We are approving revisions to 20.11.49 NMAC--Excess Emissions
occurring during startup, shutdown, and malfunction related activities
as revisions to the New Mexico SIP for Albuquerque-Bernalillo County.
We received this submittal with a September 23, 2009 letter from the
Governor of New Mexico on behalf of the AEHD.
We are approving the repeal of the existing EPA-approved provisions
of the New Mexico SIP for Albuquerque-Bernalillo County concerning
excess emissions. The existing provisions were titled Breakdown,
Abnormal Operating Conditions, or Scheduled Maintenance. The existing
provisions were approved into the New Mexico SIP for Albuquerque-
Bernalillo County on April 10, 1980 (42 FR 24468) at 40 CFR
52.1620(c)(11). See Chapter A of our Technical Support Document (TSD)
prepared in conjunction with this rulemaking action for more
information.
The September 23, 2009 submittal included proposed revisions
20.11.65 NMAC--Volatile Organic Compounds to correct the Part 49-
related cross-references, and was submitted as a revision to the New
Mexico SIP for Albuquerque-Bernalillo County. We are approving the
proposed revisions to 20.11.65 NMAC--Volatile Organic Compounds for
Albuquerque-Bernalillo County. See Chapter C of our TSD prepared in
conjunction with this rulemaking action for more information.
The September 23, 2009 submittal included proposed revisions to
20.11.90 NMAC-Source Surveillance, Administration and Enforcement to
properly reflect repeal of the existing Breakdown, Abnormal Operating
Conditions, or Scheduled Maintenance provisions of the 20.11.90 NMAC.
The revised 20.11.90 NMAC was submitted as revisions to the New Mexico
SIP for Albuquerque-Bernalillo County. We are approving proposed
revisions to 20.11.90 NMAC-Source Surveillance, Administration and
Enforcement for Albuquerque-Bernalillo County. See Chapter E of our TSD
prepared in conjunction with this rulemaking action for more
information.
The September 23, 2009 submittal also included proposed revisions
to NMAC 20.11.69--Pathological Waste Destructors. NMAC 20.11.69--
Pathological Waste Destructors is not currently in the EPA-approved SIP
for Albuquerque-Bernalillo County. We are not taking action on the
proposed revisions to NMAC 20.11.69 as part of today's rulemaking
action. The revisions to NMAC 20.11.69 for Albuquerque-Bernalillo
County will be handled in a separate rulemaking action.
B. What documents did we use in our evaluation of the September 23,
2009 SIP submittal?
The EPA's interpretation of the Act on excess emissions occurring
during periods of startup, shutdown, and malfunction is set forth in
the following documents: A memorandum dated September 28, 1982, from
Kathleen M. Bennett, Assistant Administrator for Air, Noise, and
Radiation, entitled ``Policy on Excess Emissions During Startup,
Shutdown, Maintenance, and Malfunctions'' (1982 Policy); EPA's
clarification to the above policy memorandum dated February 15, 1983,
from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and
Radiation (1983 Policy); EPA's policy memorandum reaffirming and
supplementing the above policy, dated September 20, 1999, from Steven
A. Herman, Assistant Administrator for Enforcement and Compliance
Assurance and Robert Perciasepe, Assistant Administrator for Air and
Radiation, entitled ``State Implementation Plans: Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown'' (1999
Policy); EPA's final rule for Utah's sulfur dioxide control strategy
(Kennecott Copper), April 27, 1977 (42 FR 21472); EPA's final rule for
Idaho's sulfur dioxide control strategy, November 8, 1977 (42 FR
58171); and the latest clarification of EPA's policy issued on December
5, 2001 (2001 Policy). You can find the 2001 Policy at: http://www.epa.gov/ttn/oarpg/t1pgm.html (URL dating July 22, 2008). The EPA's
interpretation of the Act related to exclusions from emission
limitations for sources in certain startup, shutdown, or malfunction
situations was upheld by the United States Court of Appeals for the
Sixth Circuit in Michigan Mfrs. Ass'n v. Browner, 230 F.3d 181 (6th
Cir. 2000).
C. Why are we approving the September 23, 2009 SIP submittal?
Under section 110(a) of the Act, EPA views all excess emissions as
violations of the applicable emission limitation because excess
emissions have the potential to interfere with attainment and
maintenance of the National Ambient Air Quality Standards, or with the
protection of Prevention of Significant Deterioration increments.
However, EPA recognizes that imposition of a penalty for sudden and
unavoidable malfunctions, startups or shutdowns caused by circumstances
entirely beyond the control of the owner or operator may not be
appropriate. The EPA has provided guidance on two approaches for
addressing excess emissions, the use of enforcement discretion and
providing an affirmative defense to actions for civil penalties.
Neither approach waives liability or reporting requirements for the
violation. Excess emissions occurring during periods of startup,
shutdown, maintenance, and malfunction must be included in determining
compliance with SIP emission limitations. States are not required to
provide an affirmative defense approach, but if they choose to do so,
EPA will evaluate the State's SIP rules for consistency with our policy
and guidance documents listed in section B of this document. Our
reasons for approval of the September 23, 2009 SIP submittal are as
follows:
The AEHD's September 23, 2009 SIP submittal adopts an affirmative
defense approach to address excess emissions. This approach is
permissible under the 1999 Policy.
The AEHD's September 23, 2009 SIP submittal clearly states that
operation resulting in an excess emission is a violation of the air
quality regulation or permit, and may be subject to potential
enforcement action. This statement is consistent with the 1999 Policy.
The AEHD's September 23, 2009 SIP submittal adequately sets forth
notification and reporting requirements for the owner or operator of a
source having an excess emission. We believe that notification and
reporting, including implementation of corrective action(s) when
needed, of excess emissions will assist with the management of excess
emissions and will enhance the New Mexico SIP for Albuquerque-
Bernalillo County by reducing the amount or frequency of future
potential excess emissions.
The AEHD's September 23, 2009 SIP submittal contains criteria to be
considered when asserting an affirmative defense for an excess emission
during startup or shutdown to claims for a civil penalty (but not the
injunctive relief) that are similar, if not identical, to those in the
1999 Policy. We believe the criteria for asserting an affirmative
defense are consistent with our guidance documents and should be
approved. See 20.11.49.16(B) NMAC for these criteria.
The AEHD's September 23, 2009 SIP submittal contains criteria to be
considered when asserting affirmative defense for an excess emission
during a malfunction to claims for a civil penalty (but not the
injunctive relief) that are similar, if not identical, to those in the
1999 Policy. We believe the criteria for
[[Page 5700]]
asserting an affirmative defense are consistent with our guidance
documents and should be approved. See 20.11.49.16(A) NMAC for these
criteria.
The AEHD's September 23, 2009 SIP submittal clearly states that
AEHD's determinations concerning an owner or operator's assertion of
the affirmative defense shall not preclude EPA or citizens' enforcement
authority under the Act. This statement is consistent with 42 U.S.C.
7413 and 7604.
Section 20.11.49.16 NMAC of the AEHD's September 23, 2009 SIP
submittal does not make affirmative defense available to an owner or
operator of a source having an excess emission due to maintenance
related activities. We believe that maintenance activities are
predictable events that are subject to planning to minimize releases,
unlike malfunctions or upsets, which are sudden, unavoidable or beyond
the control of owner or operator. The owner or operator of a source
should be able to plan maintenance that might otherwise lead to excess
emissions to coincide with maintenance of production equipment or other
facility shutdowns. This position is consistent with EPA's
interpretation of section 110 of the Act, and with our guidance
documents.
The AEHD's September 23, 2009 SIP submittal narrowly defines an
emergency situation. An owner and operator may assert an affirmative
defense for an emergency if certain criteria are met. See
20.11.49.16(C) NMAC for these criteria. In any enforcement proceeding,
the owner or operator seeking to establish the occurrence of an
emergency has the burden of proof. In addition, AEHD may require
additional information reported within the time period specified by the
department. See 20.11.49.16 NMAC. We believe this approach is
consistent with our guidance documents.
Section 20.11.49.16 NMAC of the AEHD's September 23, 2009 SIP
submittal prohibits availability of affirmative defense to an owner or
operator of a source having an excess emission when exceeding
federally-promulgated emissions limits, to an action for an injunctive
relief, or when exceeding certain federally-approved SIP limits which
were established by taking into account potential startup and shutdown
emissions. See 20.11.49.16(D) NMAC. This requirement is consistent with
our guidance documents.
For a section-by-section evaluation of the September 23, 2009 SIP
submittal see Chapter B of our TSD. For these reasons we are approving
20.11.49 NMAC into New Mexico SIP for Albuquerque-Bernalillo County.
In addition, we are approving the repeal and replacement of the
existing EPA-approved provisions of the New Mexico SIP for Albuquerque-
Bernalillo County concerning excess emissions titled Breakdown,
Abnormal Operating Conditions, or Scheduled Maintenance. The existing
EPA-approved provisions allowed affirmative defense for maintenance
activities, and stated that excess emissions from such activities are
not violations. The existing EPA-approved provisions did not conform
with the 1999 Policy. The revised 20.11.49 NMAC contained in the
September 23, 2009 SIP submittal conforms with the 1999 Policy, and its
approval will enhance the New Mexico SIP for Albuquerque-Bernalillo
County. As such this repeal and replacement meets and complies with
section 110(l) of the Act. See Chapter A of our TSD.
II. Final Action
Today, we are approving revisions to New Mexico Administrative Code
Title 20, Chapter 11, Part 49 Excess Emissions (20.11.49 NMAC--Excess
Emissions), 20.11.65 NMAC--Volatile Organic Compounds, and 20.11.90
NMAC--Source Surveillance, Administration and Enforcement into New
Mexico SIP for Albuquerque-Bernalillo County. We are approving the
repeal of the existing excess emissions provisions titled Breakdown,
Abnormal Operating Conditions, or Scheduled Maintenance. We are not
taking action on revisions to 20.11.69 NMAC--Pathological Waste
Destructors for Albuquerque-Bernalillo County.
III. 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 approves 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;
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);
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 costs on tribal
governments or preempt tribal law; and
Is not a ``major rule'' as defined by 5 U.S.C. 804(2)
under the Congressional Review Act, 5 U.S.C. 801 et seq., added by the
Small Business Regulatory Enforcement Fairness Act of 1996. A major
rule cannot take effect until 60 days after it is published in the
Federal Register. This action is not a ``major rule.'' Under section
307(b)(1) of the Clean Air Act, petitions for judicial review of this
action must be filed in the United States Court of Appeals for the
appropriate circuit by April 5, 2010. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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) of the Act.)
[[Page 5701]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
oxide, Reporting and recordkeeping requirements, Ozone, Volatile
organic compounds.
Dated: January 25, 2010.
Al Armendariz,
Regional Administrator, Region 6.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart GG--New Mexico
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2. The second table in Sec. 52.1620(c) entitled ``EPA Approved
Albuquerque/Bernalillo County, NM Regulations'' is amended by:
0
a. Adding a new entry for ``Part 49 (20.11.49 NMAC) Excess Emissions''
in numerical order by part number;
0
b. Revising the existing entry for ``Part 65 (20.11.65 NMAC) Volatile
Organic Compounds''; and
0
c. Revising the existing entry for ``Part 90 (20.11.90 NMAC)
Administration, Enforcement, and Inspection''.
The additions and revisions read as follows:
Sec. 52.1620 Identification of plan.
* * * * *
(c) * * *
EPA Approved Albuquerque/Bernalillo County, NM Regulations
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State approval/
State citation Title/subject submittal EPA approval date Explanation
date
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Albuquerque/Bernalillo County, Air Quality Control Regulations
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New Mexico Administrative Code (NMAC) Title 20--Environment Protection, Chapter 11--Albuquerque/Bernalillo
County Air Quality Control Board
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Part 49 (20.11.49 NMAC)............. Excess Emissions.. 9/23/09 2/4/10 [Insert FR ..................
page number where
document begins].
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Part 65 (20.11.65 NMAC)............. Volatile Organic 9/23/09 2/4/10 [Insert FR ..................
Compounds. page number where
document begins].
* * * * * * *
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Part 90 (20.11.90 NMAC)............. Source 9/23/09 2/4/10 [Insert FR ..................
Surveillance, page number where
Administration document begins].
and Enforcement.
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[FR Doc. 2010-2393 Filed 2-3-10; 8:45 am]
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