[Federal Register Volume 76, Number 186 (Monday, September 26, 2011)]
[Proposed Rules]
[Pages 59334-59338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24696]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0032; FRL-9471-5]


Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Albuquerque/Bernalillo County; Prevention of Significant 
Deterioration; Greenhouse Gas Tailoring Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve a revision to the Albuquerque/
Bernalillo County, New Mexico State Implementation Plan (SIP) that was 
submitted by the Governor of New Mexico to EPA on December 15, 2010. 
The proposed SIP revision modifies Albuquerque/Bernalillo County's 
Prevention of Significant Deterioration (PSD) program to establish 
appropriate emission thresholds for determining which new stationary 
sources and modification projects become subject to Albuquerque/
Bernalillo County's PSD permitting requirements for their greenhouse 
gas (GHG) emissions. Due to the SIP Narrowing Rule, 75 FR 82536, 
starting on January 2, 2011, the approved Albuquerque/Bernalillo County 
SIP's PSD requirements for GHG apply at the thresholds specified in the 
Tailoring Rule, not at the 100 or 250 tons per year (tpy) levels 
otherwise provided under the Clean Air Act (CAA or Act), which would 
overwhelm Albuquerque/Bernalillo County's permitting resources. This 
rule clarifies the applicable thresholds in the Albuquerque/Bernalillo 
County SIP, addresses the flaw discussed in the SIP Narrowing Rule, and 
incorporates state rule changes adopted at the state level into the 
federally-approved SIP. EPA is proposing approval of the Albuquerque/
Bernalillo County, New Mexico December 15, 2010 PSD SIP revision 
because the Agency has made the preliminary determination that this PSD 
SIP revision is in accordance with section 110 and part C of the 
Federal Clean Air Act and EPA regulations regarding PSD permitting for 
GHGs.

DATES: Comments must be received on or before October 26, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2011-0032, by one of the following methods:
    (1) http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.

[[Page 59335]]

    (2) E-mail: Mr. Jeff Robinson at [email protected]. Please 
also cc the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph below.
    (3) U. S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
    (4) Fax: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), at 
fax number 214-665-6762.
    (5) Mail: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
    (6) Hand or Courier Delivery: Mr. Jeff Robinson, Chief, Air Permits 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2011-0032. 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 the 
disclosure of which is restricted by statute. Do not submit information 
through http://www.regulations.gov or e-mail, if you believe that it is 
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means that 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 along with any disk or CD-ROM 
submitted. 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 and any form of encryption and should be free of any 
defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    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 
the disclosure of which 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 
Permits Section (6PD-R), 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. A 15 cent per page fee will be charged for 
making photocopies of documents. On the day of the visit, please check 
in at the EPA Region 6 reception area on the seventh floor at 1445 Ross 
Avenue, Suite 700, Dallas, Texas.
    The State submittals related to this SIP revision, and which are 
part of the EPA docket, are also available for public inspection at the 
Local Air Agency listed below during official business hours by 
appointment:
    Albuquerque Environmental Health Department, Suite 3023, 3rd floor, 
One Civic Plaza, 400 Marquette Av. NW, Albuquerque, New Mexico, 87102.

FOR FURTHER INFORMATION CONTACT: Mr. Mike Miller (6PD-R), Air Permits 
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue 
(6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number is 
(214) 665-7550. Mr. Miller can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. Summary of Albuquerque/Bernalillo County's Submittal
III. What is the background for today's proposed action?
IV. What is EPA's analysis of Albuquerque/Bernalillo County's SIP 
revision?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. Summary of Albuquerque/Bernalillo County's Submittal

    On December 15, 2010, the State of New Mexico submitted a SIP 
revision request to EPA to establish appropriate emission thresholds 
for determining which new or modified stationary sources become subject 
to Albuquerque/Bernalillo County's PSD permitting requirements for GHG 
emissions. The submitted revisions to the SIP are enacted at 20.11.61.7 
New Mexico Air Code (NMAC). Final approval of this SIP revision request 
will put in place the GHG emission thresholds for PSD applicability set 
forth in EPA's Tailoring Rule, ensuring that smaller GHG sources 
emitting less than these thresholds are not subject to permitting 
requirements. Pursuant to section 110 of the CAA, EPA is proposing to 
approve this revision into the Albuquerque/Bernalillo County SIP. New 
Mexico also submitted revisions to the remainder of the Albuquerque/
Bernalillo County PSD program at 20.11.61.6, 20.11.61.11, 20.11.61.12, 
20.11.61.20 and 20.11.61.27 NMAC that correctly update internal cross-
references to the PSD definitions. EPA is also proposing approval of 
these revisions pursuant to section 110 of the CAA.
    Also on December 15, 2010, New Mexico submitted revisions to the 
New Mexico General Provisions for

[[Page 59336]]

Albuquerque/Bernalillo County at 20.11.1 NMAC, and to the New Mexico 
Title V Operating Permits Program for Albuquerque/Bernalillo County at 
20.11.42 NMAC. EPA will address these revisions at a later date and in 
a separate action on the General Provisions and the Title V Program.

III. What is the background for today's proposed action?

    This section briefly summarizes EPA's recent GHG-related actions 
that provide the background for today's proposed action. More detailed 
discussion of the background is found in the preambles for those 
actions. In particular, the background is contained in what we call the 
GHG PSD SIP Narrowing Rule,\1\ and in the preambles to the actions 
cited therein.
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    \1\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
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A. GHG-Related Actions

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action on 
the New Mexico SIP. Four of these actions include, as they are commonly 
called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson 
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and 
the ``Tailoring Rule.'' \5\ Taken together and in conjunction with the 
CAA, these actions established regulatory requirements for GHGs emitted 
from new motor vehicles and new motor vehicle engines; determined that 
such regulations, when they took effect on January 2, 2011, subjected 
GHGs emitted from stationary sources to PSD requirements; and limited 
the applicability of PSD requirements to GHG sources on a phased-in 
basis. EPA took this last action in the Tailoring Rule, which, more 
specifically, established appropriate GHG emission thresholds for 
determining the applicability of PSD requirements to GHG-emitting 
sources.
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    \2\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \3\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \5\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    PSD is implemented through the SIP system, and so in December 2010, 
EPA promulgated several rules to implement the new GHG PSD SIP program. 
Recognizing that some states had approved SIP PSD programs that did not 
apply PSD to GHGs, EPA issued a SIP call and, for some of these states, 
a FIP.\6\ Recognizing that other states had approved SIP PSD programs 
that do apply PSD to GHGs, but that do so for sources that emit as 
little as 100 or 250 tpy of GHG, and that do not limit PSD 
applicability to GHGs to the higher thresholds in the Tailoring Rule, 
EPA issued the GHG PSD SIP Narrowing Rule. Under that rule, EPA 
withdrew its approval of the affected SIPs to the extent those SIPs 
covered GHG-emitting sources below the Tailoring Rule thresholds. EPA 
based its action primarily on the ``error correction'' provisions of 
CAA section 110(k)(6).
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    \6\ Specifically, by notice dated December 13, 2010, EPA 
finalized a ``SIP Call'' that would require those states with SIPs 
that have approved PSD programs but do not authorize PSD permitting 
for GHGs to submit a SIP revision providing such authority. ``Action 
To Ensure Authority To Issue Permits Under the Prevention of 
Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR 
77698 (Dec. 13, 2010). EPA has been making findings of failure to 
submit for states unable to submit the required SIP revision by 
their deadline, and finalizing FIPs for such states. See, e.g. 
``Action To Ensure Authority To Issue Permits Under the Prevention 
of Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Failure To Submit State Implementation Plan 
Revisions Required for Greenhouse Gases,'' 75 FR 81874 (December 29, 
2010); ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan,'' 75 FR 82246 
(December 30, 2010). Because New Mexico's SIP already authorizes 
Albuquerque/Bernalillo County to regulate GHGs once GHGs become 
subject to PSD requirements on January 2, 2011, Albuquerque/
Bernalillo County is not subject to the proposed SIP Call or FIP.
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B. Albuquerque/Bernalillo County's Actions

    On July 16, 2010, the City of Albuquerque's Environmental Health 
Department (AEHD) provided a letter to EPA, in accordance with a 
request to all States from EPA in the Tailoring Rule, with confirmation 
that their local air board has the authority to regulate GHG in its PSD 
program. The letter confirmed that Albuquerque/Bernalillo County's 
current rules require regulating GHGs at the existing 100/250 tpy 
threshold, rather than at the higher thresholds set in the Tailoring 
Rule because Albuquerque/Bernalillo County's rules and could not be 
interpreted to apply the meaning of the term ``subject to regulation'' 
established in the Tailoring Rule. The City's AEHD also submitted a 
letter on September 17, 2010, in response to the proposed GHG SIP Call 
again confirming that EPA correctly classified Albuquerque/Bernalillo 
County's SIP to apply PSD requirements to GHGs and that they were 
pursuing revisions to their SIP to match federal requirements. See the 
docket for this proposed rulemaking for copies of AEHD's July 16, 2010, 
and September 17, 2010, letters.
    In the PSD SIP Narrowing Rule, published on December 30, 2010, EPA 
withdrew its approval of Albuquerque/Bernalillo County's SIP--among 
other SIPs--to the extent that SIP applies PSD permitting requirements 
to GHG emissions from sources emitting at levels below those set in the 
Tailoring Rule.\7\ As a result, the Albuquerque/Bernalillo County's 
current approved SIP provides the local permitting authority with 
authority to regulate GHGs, but only at and above the Tailoring Rule 
thresholds; and federally requires new and modified sources to receive 
a PSD permit based on GHG emissions only if they emit at or above the 
Tailoring Rule thresholds.
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    \7\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
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    Albuquerque/Bernalillo County has amended its local regulations to 
incorporate the Tailoring Rule thresholds for sources within 
Albuquerque/Bernalillo County, and has submitted the adopted 
regulations as revisions to their SIP. EPA's proposed approval of 
Albuquerque/Bernalillo County`s revisions will clarify the applicable 
thresholds in the Albuquerque/Bernalillo County SIP.
    The basis for this SIP revision is that limiting PSD applicability 
to GHG sources to the higher thresholds in the Tailoring Rule is 
consistent with the SIP provisions that provide required assurances of 
adequate resources, and thereby addresses the flaw in the SIP that led 
to the PSD SIP Narrowing Rule. Specifically, CAA section 110(a)(2)(E) 
includes as a requirement for SIP approval that States provide 
``necessary assurances that the State * * * will have adequate 
personnel [and] funding * * * to carry out such [SIP].'' In the 
Tailoring Rule, EPA established higher thresholds for PSD applicability 
to GHG-emitting sources on grounds that the states generally did not 
have adequate resources to apply PSD to GHG-emitting sources below the 
Tailoring Rule thresholds,\8\ and no State, including Albuquerque/
Bernalillo

[[Page 59337]]

County, asserted that it did have adequate resources to do so.\9\ In 
the PSD SIP Narrowing Rule, EPA found that the affected states, 
including New Mexico and Albuquerque/Bernalillo County, had a flaw in 
their SIP at the time they submitted their PSD programs, which was that 
the applicability of the PSD programs was potentially broader than the 
resources available to them under their SIP.\10\ Accordingly, for each 
affected state, including New Mexico and Albuquerque/Bernalillo County, 
EPA concluded that EPA's action in approving the SIP was in error, 
under CAA section 110(k)(6), and EPA rescinded its approval to the 
extent the PSD program applies to GHG-emitting sources below the 
Tailoring Rule thresholds.\11\ EPA recommended that States adopt a SIP 
revision to incorporate the Tailoring Rule thresholds, thereby (i) 
assuring that under State law, only sources at or above the Tailoring 
Rule thresholds would be subject to PSD; and (ii) avoiding confusion 
under the federally-approved SIP by clarifying that the SIP applies to 
only sources at or above the Tailoring Rule thresholds.\12\
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    \8\ Tailoring Rule, 75 FR 31,517/1.
    \9\ SIP Narrowing Rule, 75 FR 82,540/2.
    \10\ Id. at 82,542/3.
    \11\ Id. at 82,544/1.
    \12\ Id. at 82,540/2.
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IV. What is EPA's analysis of Albuquerque/Bernalillo County's SIP 
revision?

    The regulatory revisions that Albuquerque/Bernalillo County `s AEHD 
submitted on December 15, 2010, establish thresholds for determining 
which stationary sources and modification projects become subject to 
permitting requirements for GHG emissions under its PSD program. 
Specifically, the submittal includes changes to Albuquerque/Bernalillo 
County's PSD regulations at 20.11.61.6, 20.11.61.7, 20.11.61.11, 
20.11.61.12, 20.11.61.20, and 20.11.61.27 NMAC.\13\
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    \13\ On December 15, 2010, Governor Richardson also submitted 
revisions to the Albuquerque/Bernalillo County's Title V program and 
to the General Provisions portion of the SIP. EPA will take separate 
action on these revisions in a separate rulemaking.
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    Albuquerque/Bernalillo County has a SIP-approved PSD program, and 
has incorporated EPA's 2002 New Source Review (NSR) reform revisions 
for PSD into its SIP.\14\ In letters provided to EPA on June 24, 2010, 
and September 14, 2010, Albuquerque/Bernalillo County notified EPA of 
its interpretation that the City and County have the authority to 
regulate GHGs under its PSD regulations. Prior to the passage of the 
submitted revisions, the City and County's regulations (adopted prior 
to the promulgation of EPA's Tailoring Rule) applied to major 
stationary sources having the potential to emit at least 100 tpy or 250 
tpy or more of a regulated NSR pollutant, depending on the type of 
source, or major modifications constructing in areas designated 
attainment or unclassifiable with respect to the National Ambient Air 
Quality Standards.
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    \14\ ``Approval and Promulgation of Air Quality Implementation 
Plans; New Mexico; Albuquerque/Bernalillo County; Prevention of 
Significant Deterioration (PSD) and New Source Review'' 72 FR 20728 
(April 26, 2007).
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    The changes to Albuquerque/Bernalillo County`s PSD program 
regulations submitted for approval here are substantively the same as 
the amendments to the Federal PSD regulatory provisions in EPA's 
Tailoring Rule. As part of its review of this submittal, EPA performed 
a line-by-line review of Albuquerque/Bernalillo County's revisions and 
has determined that they are consistent with the Tailoring Rule. EPA's 
Technical Support Document detailing our analysis of the revisions to 
the New Mexico SIP is available in the docket for this action.

V. What action is EPA taking?

    EPA is proposing to approve Albuquerque/Bernalillo County's 
December 15, 2010, SIP submittal, relating to PSD requirements for GHG-
emitting sources in Albuquerque/Bernalillo County. Specifically, the 
December 15, 2010, proposed SIP revision establishes appropriate 
emissions thresholds for determining PSD applicability to new and 
modified GHG-emitting sources in accordance with EPA's Tailoring Rule. 
EPA has made the determination that this SIP submittal is approvable 
because it is in accordance with the CAA and EPA regulations regarding 
PSD permitting for GHGs.
    If EPA finalizes our approval of Albuquerque/Bernalillo County's 
changes to its air quality regulations to incorporate the appropriate 
thresholds for GHG permitting applicability into its SIP, then 
paragraph (e) in Section 52.1634 of 40 CFR part 52, as included in 
EPA's SIP Narrowing Rule--which codifies EPA's limiting its approval of 
Albuquerque/Bernalillo County's PSD SIP to not cover the applicability 
of PSD to GHG-emitting sources below the Tailoring Rule thresholds--is 
no longer necessary. In today's proposed action, EPA is also proposing 
to amend Section 52.1634 of 40 CFR part 52 to remove this unnecessary 
regulatory language.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Clean Air Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct

[[Page 59338]]

costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, and Reporting and recordkeeping requirements.

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

    Dated: September 13, 2011.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. 2011-24696 Filed 9-23-11; 8:45 am]
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