[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Rules and Regulations]
[Pages 35273-35279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14154]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R06-OAR-2005-NM-0008; FRL-9684-5]


Approval and Promulgation of Implementation Plans; New Mexico; 
Minor New Source Review (NSR) Preconstruction Permitting Rule for 
Cotton Gins

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking a direct final action to approve a revision to 
the applicable minor New Source Review (NSR) State Implementation Plan 
(SIP) for New Mexico submitted by the state of New Mexico on April 25, 
2005, which incorporates a new regulation related to minor NSR 
preconstruction permitting for particulate matter emissions from cotton 
ginning facilities. The submitted Cotton Gin regulation provides an 
alternative preconstruction process for cotton ginning facilities that 
will emit no more than 50 tons per year of particulate matter. The new 
regulation prescribes, at a minimum, best technical control equipment 
standards, opacity limitations, and fugitive dust management plan 
requirements to minimize particulate matter emissions and establishes a 
minimum setback distance from the gin to the property line. EPA has 
determined that this SIP revision complies with the Clean Air Act and 
EPA regulations and is consistent with EPA policies. This action is 
being taken under section 110 of the Act.

DATES: This direct final rule is effective on August 13, 2012 without 
further notice, unless EPA receives relevant adverse comment by July 
13, 2012. If EPA receives such comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2005-NM-0008, by one of the following methods:
    (1) www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    (2) Email: Ms. Ashley Mohr at [email protected].
    (3) Fax: Ms. Ashley Mohr, Air Permits Section (6PD-R), at fax 
number 214-665-6762.
    (4) Mail: Ms. Ashley Mohr, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
    (5) Hand or Courier Delivery: Ms. Ashley Mohr, 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-
2005-NM-0008. 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 email, 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 email 
comment directly to EPA without going through http://www.regulations.gov, your email 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

[[Page 35274]]

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 submittal related to this SIP revision, and which is part 
of the EPA docket, is also available for public inspection at the State 
Air Agency listed below during official business hours by appointment:
    New Mexico Environment Department, Air Quality Bureau, 1301 Siler 
Road, Building B, Santa Fe, New Mexico.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning 
today's direct final action, please contact Ms. Ashley Mohr (6PD-R), 
Air Permits Section, Environmental Protection Agency, Region 6, 1445 
Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone 
(214) 665-7289; fax number (214) 665-6762; email address 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document the following terms 
have the meanings described below:
     ``we'', ``us'' and ``our'' refer to EPA.
     ``Act'' and ``CAA'' mean the Clean Air Act.
     ``40 CFR'' means Title 40 of the Code of Federal 
Regulations--Protection of the Environment.
     ``SIP'' means the State Implementation Plan established 
under section 110 of the Act.
     ``NSR'' means new source review.
     ``TSD'' means the Technical Support Document for this 
action.
     ``NAAQS'' means any national ambient air quality standard 
established under 40 CFR part 50.

Table of Contents

I. What action is EPA taking?
II. What did New Mexico submit?
    A. April 25, 2005, SIP Revision Submittal
    B. What is the Cotton Gin regulation?
III. EPA's Evaluation
    A. Technical Review of April 25, 2005, SIP Revision Submittal
    B. CAA 110(l) Analysis
IV. Final Action
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    We are taking direct final action to approve a revision to the 
applicable minor New Source Review (NSR) State Implementation Plan 
(SIP) for New Mexico submitted by the state of New Mexico on April 25, 
2005, which incorporates a new regulation related to minor NSR 
preconstruction permitting for cotton ginning facilities that are minor 
stationary sources with particulate matter emissions no more than 50 
tons per year. The April 25, 2005, SIP submittal includes the 
incorporation of the new Cotton Gin regulation in 20.2.66 of the New 
Mexico Administrative Code (NMAC), also known as Part 66.
    Our technical analysis of the April 25, 2005, SIP rule revision 
submittal has found that the new Part 66, containing the Cotton Gin 
regulation, meets the CAA and 40 CFR Part 51. Therefore, EPA is taking 
direct final action to approve the incorporation of 20.2.66 NMAC, as 
submitted on April 25, 2005, into the New Mexico minor NSR SIP. We 
provide a summary of the reasoning comprising our evaluation in this 
rulemaking, as well as, a more detailed evaluation and analysis in the 
Technical Support Document (TSD) for this rulemaking.
    We are publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no relevant adverse 
comments. As explained in our TSD, we are finding this action 
noncontroversial because the Cotton Gin regulation is an established 
limited-scope regulation providing an alternative minor NSR 
preconstruction permitting approach for cotton ginning facilities that 
are minor stationary sources of particulate matter emissions. However, 
in the proposed rules section of this Federal Register publication, we 
are publishing a separate document that will serve as the proposal to 
approve the SIP revision if relevant adverse comments are received. 
This rule will be effective on August 13, 2012 without further notice 
unless we receive relevant adverse comment by July 13, 2012. If we 
receive relevant adverse comments, we will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect. We will address all public comments in a subsequent final 
rule based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
now. Please note that if we receive adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, we may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

II. What did New Mexico submit?

A. April 25, 2005, SIP Revision Submittal

    On April 25, 2005, the Governor of New Mexico submitted a revision 
to incorporate 20.2.66 NMAC--Cotton Gins into the New Mexico SIP. This 
submittal includes the following:
     Addition of the following sections: 20.2.66.1 NMAC--
Issuing Agency; 20.2.66.2 NMAC--Scope; 20.2.66.3 NMAC--Statutory 
Authority; 20.2.66.4 NMAC--Duration; 20.2.66.5 NMAC--Effective Date; 
20.2.66.6 NMAC--Objective; 20.2.66.7 NMAC--Definitions; 20.2.66.9 
NMAC--Documents; 20.2.66.200 NMAC--Issuance of Permit under 20.2.72 
NMAC; 20.2.66.201 NMAC--Permit Application Requirements; and 
20.2.66.202 NMAC--Permit Requirements.
     Portions of the New Mexico Air Quality Control Act (AQCA), 
specifically the 2003 amendments to Section 74-2-7(C) and (O), related 
to permit issuance for cotton ginning facilities, as evidence of the 
legal authority for the State to adopt 20.2.66 NMAC--Cotton Gins.
    A summary of EPA's evaluation of the Cotton Gin regulation and the 
basis for this action is discussed in section III of this preamble. The 
TSD includes a detailed evaluation of the April 25, 2005, SIP 
submittal.

B. What is the Cotton Gin regulation?

    The Cotton Gin regulation, found in Part 66, provides an 
alternative process for owners and operators of cotton ginning minor 
stationary sources, as defined in Part 66, to obtain a minor NSR 
preconstruction permit for particulate matter emissions. The New Mexico 
Environmental Department (NMED) adopted 20.2.66 NMAC in

[[Page 35275]]

response to 2003 amendments to the New Mexico Air Quality Control Act 
(AQCA), specifically, amendments to Sections 74-2-7(C) and (O). Sources 
that meet the cotton ginning facility definition defined in 
20.2.66.7(C) and that elect to apply for a minor NSR preconstruction 
permit under Part 66, must meet the source-specific requirements 
contained in the Part, which include application requirements and 
permit requirements. A ``cotton ginning facility'' is defined in Part 
66 as ``any facility that separates seed, lint, and trash from raw 
cotton, and bales lint cotton for further processing.'' To meet the 
definition of a ``cotton ginning facility,'' Part 66 also requires that 
the facility have the standard industrial classification code 0724 
(cotton ginning) and the North American industrial standard 
classification code 11511 (cotton ginning). It must also have 50 tons 
per year or less of particulate matter emissions. A source that obtains 
a minor NSR preconstruction permit under Part 66 for its particulate 
matter emissions is also required to meet the applicable requirements 
contained in the SIP's 20.2.72 NMAC--Construction Permits (Part 72) to 
obtain a minor preconstruction permit for its other emissions.
    Part 66 specifies permit application requirements, particulate 
matter emission control requirements, opacity limitations, fugitive 
dust plan requirements, operating and location restrictions, and 
inspection and recordkeeping requirements for cotton ginning facilities 
seeking a minor preconstruction permit under 20.2.66 NMAC. The ``best 
system'' to minimize particulate matter emissions was determined by 
NMED to be, at a minimum, technical control standards such as screens 
with a mesh size of 70 by 70 or finer (United States sieve) on low-
pressure exhausts, and high-efficiency cyclone dust collectors on high-
pressure exhausts. These control standards minimize particulate matter 
emissions. The new regulation also establishes minimum setback distance 
requirements for facilities obtaining a minor NSR preconstruction 
permit under Part 66. These requirements are specific to the control of 
emissions and minimization of impacts from particulate matter emissions 
from cotton gins emitting 50 tons per year or less, including 
particulate matter less than 10 microns in diameter (PM10) 
and particulate matter less than 2.5 microns in diameter 
(PM2.5). All other criteria pollutant emissions from cotton 
gins are required to be addressed via the requirements of the Part 72 
preconstruction minor NSR permitting program that already is in the New 
Mexico SIP.

III. EPA's Evaluation

A. Technical Review of April 25, 2005, SIP Revision Submittal

    The April 25, 2005, SIP revision submitted by New Mexico to 
incorporate Part 66 in the State's minor NSR SIP establishes an 
alternative minor NSR preconstruction permitting approach for cotton 
gins that are minor sources of 50 tons per year or less of particulate 
matter emissions. The alternative minor NSR preconstruction permitting 
process contained in the Cotton Gin regulation provides cotton ginning 
facilities with an option to obtain a minor NSR preconstruction permit 
via the current minor NSR SIP's preconstruction case-by-case permitting 
program (Part 72) for all its emissions or to obtain a SIP Part 72 
minor NSR preconstruction permit for all of its emissions except for 
its particulate matter emissions, for which it can obtain a minor NSR 
preconstruction permit via the alternative process contained in Part 
66. As previously mentioned, those cotton gin sources obtaining a minor 
NSR permit under Part 66 for their particulate matter emissions must 
also meet the applicable requirements of the SIP's Part 72 for all 
their other emissions. The Part 66 minor NSR preconstruction permitting 
process addresses particulate matter emissions from minor source cotton 
gins without requiring an air quality impact analysis demonstration, 
while the SIP's Part 72 rule addresses case-by-case preconstruction 
permitting determinations for all sources for all emissions and 
requires an analysis of the predicted air quality impact that generally 
is met by air dispersion modeling. As discussed later, EPA is finding 
that the submitted Part 66 is protective of the NAAQS and therefore no 
case-by-case air quality impact analysis is required for cotton gins 
covered under this rule.
    As detailed in the TSD, the April 25, 2005, SIP submittal meets the 
completeness criteria established in 40 CFR part 51, Appendix V. In 
addition to the completeness review, the Cotton Gin regulation SIP 
submittal was evaluated against the applicable requirements contained 
in the Act and 40 CFR part 51. Section 110(a)(2)(C) of the Act 
requires, in part, that each implementation plan include a program to 
regulate the construction and modification of stationary sources, 
including a permit program as required by parts C and D of Title I of 
the Act, as necessary to assure that the NAAQS are achieved. Parts C 
and D, which pertain to prevention of significant deterioration (PSD) 
and nonattainment, respectively, address major NSR programs for 
stationary sources, and the permitting program for ``nonmajor'' (or 
``minor'') stationary sources is also addressed by section 110(a)(2)(C) 
of the Act. We generally refer to the latter program as the ``minor 
NSR'' program. A minor stationary source is a source whose ``potential 
to emit'' is lower than the major source applicability threshold for a 
particular pollutant defined in the applicable major NSR program.
    EPA's implementing regulations for minor NSR SIP revision 
submissions required by section 110(a)(2)(C) are found at 40 CFR 51.160 
and are intended to ensure that new source growth is consistent with 
maintenance of the NAAQS. Therefore, we evaluated the submitted new 
rule using the federal regulations under CAA section 110(a)(2)(C), 
which require each State to include a minor NSR program in its SIP. EPA 
regulations require that a minor NSR program include:
     A plan that ``must set forth legally enforceable 
procedures that enable'' the permitting agency to determine whether a 
minor source will cause or contribute to a violation of applicable 
portions of the control strategy, 40 CFR 51.160(a)(1), or interference 
with attainment or maintenance of a NAAQS within the state or a 
neighboring state, 40 CFR 51.160(a)(2).
     The procedures must provide for the submission, by the 
applicant, of such information on:
    (1) The nature and amounts of emissions to be emitted by it or 
emitted by associated mobile sources;
    (2) The location, design, construction, and operation of such 
facility, building, structure, or installation as may be necessary to 
permit the State or local agency to make the determination referred to 
in paragraph (a) of this section, 40 CFR 51.160(c) .
     The procedures must identify types and sizes of affected 
entities subject to review and must discuss ``the basis for determining 
which facilities will be subject to review,'' 40 CFR 51.160(e).
    The provisions contained in the Cotton Gin regulation SIP submittal 
meet the requirements in 40 CFR 51.160(a)(1) and (2) that each plan 
include legally enforceable procedures to determine whether the 
construction or modification of a facility, building, structure, or 
installation, or the combination of these will result in: (1) A 
violation of the applicable portions of the control strategy; or (2) 
interference with attainment or maintenance of a

[[Page 35276]]

national standard in the state in which the proposed source (or 
modification) is located or in a neighboring state. See our TSD and 
section III.B of this notice for more details regarding how the Cotton 
Gin regulation complies with these requirements.
    The Cotton Gin regulation SIP revision also meets the 40 CFR 
51.160(c) requirements by requiring sources that apply for a minor NSR 
preconstruction permit using the alternative approach contained in Part 
66 to provide information regarding the nature and amounts of emissions 
to be emitted and the location, design, construction, and operation of 
the facility in accordance with permit application requirements 
contained in Part 72. The minor NSR preconstruction permitting program 
contained in Part 72 is already part of the New Mexico SIP. The permit 
application content requirements are contained in Section 203 of Part 
72 and are referenced as requirements of Part 66 in Section 201(A) of 
that Part.
    The April 25, 2005, SIP revision also meets the 40 CFR 51.160(e) 
requirements by identifying the type of facility that will be subject 
to review under 40 CFR 51.160(a). New Mexico specifically identified 
that cotton ginning facilities meeting the definition contained in Part 
66 may elect to utilize the alternative minor NSR permitting process 
contained in the Cotton Gin regulation. This includes the requirement 
that the cotton gin be a minor stationary source emitting 50 tons per 
year or less of particulate matter. The major source threshold for 
particulate matter for cotton ginning facilities is 250 tons per year. 
Cotton ginning facilities not meeting the definition are not allowed to 
utilize the alternative minor NSR permitting approach contained in Part 
66. See the TSD for more details regarding our technical review of the 
April 25, 2005, SIP revision submittal.
    40 CFR 51.160 requires that the minor NSR SIP revision submittal be 
enforceable. In particular, 40 CFR 51.160(a) requires that the SIP 
revision be enforceable in order to ensure that the issuance of the 
minor NSR permit will not cause or contribute to a violation of any SIP 
control strategy and will not interfere with attainment and maintenance 
of the NAAQS. The September 23, 1987, Memorandum from J. Craig Potter, 
Assistant Administrator for Air and Radiation, and Thomas L. Adams Jr., 
Assistant Administrator for Enforcement and Compliance Monitoring, 
entitled ``Review of State Implementation Plans and Revisions for 
Enforceability and Legal Sufficiency'' provides EPA's guidance for 
assessing whether a SIP revision submittal is sufficiently enforceable. 
We find that the new regulation meets the requirements of section 40 
CFR 51.160(a), which requires that SIP revision submittals be 
enforceable. The submitted regulation specifically identifies the 
covered source; ensures that the permit issued by NMED will contain 
specific limits to ensure that the cotton gin's potential to emit 
remains below major source thresholds for particulate matter emissions; 
and includes monitoring, recordkeeping, and reporting (MRR) provisions 
that establish how compliance will be determined and ensure that the 
PM10 and PM2.5 NAAQS are protected. For these 
reasons, EPA finds that the submitted regulation will ensure attainment 
and maintenance of the particulate matter NAAQS and will prevent 
violations of any of the New Mexico SIP's control strategies. Under 
this submitted regulation, the State is able to determine if there will 
be an adverse impact on air quality.
    EPA has recognized, for certain classes of sources, that it is 
appropriate for states to establish enforceable emission limits that 
serve to limit potential to emit through exclusionary rules that apply 
to certain source categories. See, Memorandum from D. Kent Berry, 
Acting Director, Air Quality Management Division, Office of Air Quality 
Planning and Standards (OAQPS) entitled ``Guidance for State Rules for 
Optional Federally-Enforceable Emissions Limits Based on Volatile 
Organic Compound Use,'' dated October 15, 1993; See also, Memorandum 
from John Seitz, Director, OAQPS entitled ``Approaches to Creating 
Federally-Enforceable Emission Limits,'' dated November 3, 1993. EPA 
also issued a guidance memorandum that provides guidance for addressing 
the minor source status under the Act for lower-emitting sources in 
eight source categories, including cotton gins. See, April 14, 1998, 
Memorandum entitled, ``Potential to Emit (PTE) Guidance for Specific 
Source Categories'' (hereinafter the 1998 memoranda). It provides 
technical information useful in devising practicable enforceable PTEs 
for small sources and identifies sources that are ``true minors.''
    Although not an exclusionary rule, the practicable enforceability 
criteria in the guidance memoranda serve as a way to measure whether 
the submitted regulation is practicably enforceable and therefore can 
ensure that issuance of the minor NSR permit will not cause or 
contribute to a violation of any SIP control strategy and will not 
interfere with attainment and maintenance of the NAAQS. The submitted 
regulation clearly identifies the category of sources that qualify for 
coverage. Moreover, EPA has found that cotton gins are technically 
justified for a streamlined approach (the 1998 memoranda). The 
regulation provides that a source notify the State of its coverage 
under the regulation by submitting a preconstruction application. The 
application must propose maximum allowable annual and hourly emissions 
and include proposed limitations to hours of operation and other 
limitations that will result in allowable emissions of no more than 50 
tons per year. The NMED is authorized to modify any of the proposed 
limitations and controls to be more stringent, as necessary to ensure 
that applicable requirements are met. Therefore, the regulation ensures 
that the applicable emission limits will be clearly specified by the 
NMED in the issued permit. The rule also includes terms and conditions 
for monitoring, recordkeeping, reporting, and testing requirements, as 
appropriate. The applicant is required to comply with the limits in the 
Part 66 issued permit. Violations of the emission threshold imposed by 
the submitted regulation can constitute violations of permitting and 
SIP requirements.\1\
---------------------------------------------------------------------------

    \1\ Under 20.2.72.218 NMAC, any credible evidence may be used 
for the purpose of establishing whether a person has violated or is 
in violation of the terms or conditions of the permit. This 
enforcement measure applies notwithstanding any other provisions in 
the New Mexico SIP.
---------------------------------------------------------------------------

B. CAA 110(l) Analysis

    Section 110(l) of the Clean Air Act states:

    Each revision to an implementation plan submitted by a State 
under this Act shall be adopted by such State after reasonable 
notice and public hearing. The Administrator shall not approve a 
revision of a plan if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress (as defined in CAA section 171), or any other applicable 
requirement of this Act.

    Thus, under section CAA 110(l), this minor NSR SIP revision 
submittal must not interfere with attainment, reasonable further 
progress, or any other applicable requirement of the Act. EPA is 
approving the revision to the New Mexico minor NSR SIP incorporating 
the cotton gin minor NSR regulation because, based on our analysis, we 
have found that Part 66 does not interfere with attainment, reasonable 
further progress, or any other requirement of the Act.
    As previously stated, the provisions contained in Part 66 include

[[Page 35277]]

requirements and operational restrictions for cotton ginning facilities 
seeking a minor NSR permit that are specific to the control of 
particulate matter emissions and minimization of impacts from those 
emissions. All other pollutants will continue to be addressed via the 
requirements of the SIP's Part 72 minor NSR preconstruction permitting 
program. Therefore, EPA evaluated the Cotton Gin regulation for its 
impact on attainment and reasonable further progress for 
PM10 and PM2.5 in a CAA 110(l) analysis. The 
submitted regulation only affects one specific source category, not 
unrelated emission sources. Therefore, there will be no cumulative 
effect of numerous unrelated sources. Moreover, there currently are 
only four cotton gins operating in the State, and only one of these 
four facilities has received the alternative minor NSR permit for its 
particulate matter emissions. The cotton gin that received the 
alternative minor NSR permit for its particulate matter emissions is 
located in Dona Ana County, but it is outside the boundaries of the 
Anthony PM10 nonattainment area. All four cotton gins are 
minor stationary sources of particulate matter.
    A cotton gin obtaining a minor NSR permit under this new rule must 
meet, at a minimum, the technical equipment requirements and management 
practices in the rule. All burr hoppers must be completely enclosed. 
There can be no visible fugitive emissions from any door, vent, or 
window. Emissions from the gin yard, storage piles, roads, and vehicles 
must be controlled by watering, paving and cleaning, surfactants, or 
other equivalent means. There are opacity limitations on the cyclones, 
low pressure exhausts, and fuel-burning equipment. High pressure 
exhausts must be controlled by the use of a high efficiency cyclone 
dust collector and are subject to an opacity limitation. Low pressure 
exhausts must be controlled by the use of screens with a mesh size of 
70 by 70 or finer (United States sieve), or the use of perforated 
condenser drums with holes not exceeding 0.045 inches in diameter and 
are subject to an opacity limitation. There must be a posted speed 
limit for all vehicles on unpaved haul roads and in unpaved yard areas 
of 10 miles per hour or less. Fuel burning equipment is limited to 
certain fuels. The NMED has the authority to require even more 
stringent requirements than those set forth above. Furthermore, under 
the submitted regulation, a cotton gin obtaining a minor NSR permit 
under this regulation must be located at a minimum of 10 feet in all 
directions from the facility's property boundary. The cotton gin must 
also be at least 0.25 miles from any existing state park, recreation 
area, or school and at least three miles from any Class I area. The 
distance from the cotton gin to the property boundary must also meet 
minimum requirements based on the facility's PM10 emissions. 
These set back distance limitations are based upon the allowable 
emissions rather than production rates, thereby encouraging gins to use 
more stringent technical controls. The NMED has the authority to 
establish a more stringent set back limitation in any issued permit 
under this new rule, as necessary, to ensure that the facility will 
meet all other applicable requirements.
    The entire state of New Mexico was designated attainment for the 
1997 PM2.5 NAAQS. Additionally, the entire state of New 
Mexico was designated attainment for the 2006 PM2.5 NAAQS. 
The only area designated nonattainment for the PM10 NAAQS in 
New Mexico is Anthony, which is located in Dona Ana County. Dona Ana 
County does contain cotton gins, but these gins are located outside the 
boundaries of the Anthony designated nonattainment area. In New 
Mexico's November 8, 1991 SIP revision for the Anthony PM10 
nonattainment area, the State demonstrated that PM10 
emissions from existing cotton gins located in Dona Ana County did not 
have a significant impact on air quality in Anthony. As a result, New 
Mexico did not include control requirements for any point sources, 
including cotton gins, in its PM10 SIP revision for Anthony. 
EPA approved the PM10 SIP for Anthony on September 9, 1993. 
Annual emissions inventory information compiled by NMED for inventory 
year 2002 shows that annual emissions of PM10 resulting from 
cotton gins located in Dona Ana County are much less than the total 
PM10 emissions from both agricultural and non-agricultural 
emission sources in the county. The 2002 Dona Ana County emissions 
inventory data also shows that annual emissions of PM2.5 
from cotton gins are much less that the total PM2.5 
emissions. There also is no new evidence that new minor source cotton 
gins would have a significant impact on air quality in Anthony. There 
is no evidence of growth in cotton gins since 1991, the date of the 
PM10 SIP revision that EPA approved; in fact, at least two 
cotton gins have permanently shut down. Therefore, we expect that the 
impacts of PM10 emissions from cotton gins on air quality in 
Dona Ana County, including in Anthony, would be small relative to the 
impacts from other emission sources. Ginning activity in New Mexico, 
including in Dona Ana County, is not expected to experience significant 
growth from current activity levels. When the Cotton Gin regulation was 
developed and adopted by New Mexico in 2005, seven commercial gins were 
registered in New Mexico, with six of the registered gins actually 
operating. Since 2005, three of these seven cotton gins have closed. 
Only one of the remaining four cotton gins is located in Dona Ana 
County. The current ginning capacity in New Mexico is more than 
sufficient to handle the State's cotton production and annual trends 
show decreasing cotton production since the State's adoption of the 
Cotton Gin regulation. Moreover, of the four currently operational 
cotton ginning facilities located in New Mexico, only one has received 
a permit through the Part 66 permitting process. Furthermore, if a new 
minor cotton gin source wished to construct in Dona Ana County and 
applied for a permit via the Part 66 alternative minor NSR 
preconstruction permitting process, the permit would limit the 
emissions of PM10 or PM2.5 to not more than 50 
tons per year.
    For all other areas of New Mexico located outside of the Anthony 
PM10 nonattainment area, the Cotton Gin regulation is 
evaluated to determine if the SIP revision submission will interfere 
with attainment for PM2.5 or PM10. As previously 
mentioned, based on the State's current ginning capacity and cotton 
production trends, cotton ginning activity in New Mexico is not 
expected to experience significant growth from current activity levels. 
If a new minor cotton gin source is to be located in New Mexico, and 
the owner chooses the Part 66 alternative method, the cotton gin 
facility must apply for a minor NSR preconstruction permit under Part 
66 and the permit will limit the emissions of particulate matter to not 
more than 50 tons per year. In addition, a source applying for a minor 
preconstruction permit under Part 66 is required to meet at a minimum 
the control requirements contained in the Cotton Gin regulation, which 
include control equipment requirements for high and low pressure 
exhausts, opacity limitations, implementation requirements for a 
fugitive dust management plan, fuel usage limitations for any fuel 
burning equipment, and location restrictions based on the facility's 
emission rates. Prior to the adoption of Part 66, New Mexico did not 
have specific regulations or control requirements for cotton ginning 
facilities. Instead, control requirements for new and modified cotton 
ginning facilities were established through the

[[Page 35278]]

existing case-by-case preconstruction permitting program in the SIP 
(Part 72 for minor sources). The adoption of Part 66 establishes 
specific control requirements for particulate matter emissions that are 
not contained in the current New Mexico SIP for cotton ginning 
facilities seeking a minor preconstruction permit via the alternative 
minor NSR preconstruction permit approach. New Mexico also retains the 
authority and procedures to amend the Part 66 Cotton Gin regulation if 
federal standards or requirements change and the Cotton Gin regulation 
is no longer adequate to ensure that applicable requirements are met.
    Our evaluation of the April 25, 2005, SIP submittal with respect to 
both PM10 nonattainment and attainment areas and to 
PM2.5 impacts demonstrates compliance with section 110(l) of 
the CAA and provides further basis for approval of this SIP revision.

IV. Final Action

    EPA is taking direct final action to approve the revision to the 
New Mexico SIP submitted on April 25, 2005. Specifically, EPA is 
approving the incorporation of the new Cotton Gin regulation in 20.2.66 
NMAC, which establishes an alternative minor NSR preconstruction 
permitting process for issuing air quality permits to cotton ginning 
facilities for particulate matter emissions. EPA is finding that the 
revisions to the New Mexico Air Quality Control Act (AQCA) contained in 
the April 25, 2005, submittal, specifically the 2003 amendments to 
Section 74-2-7(C) and (O), related to permit issuance for cotton 
ginning facilities, provide sufficient legal authority for the NMED to 
adopt and enforce the 20.2.66 NMAC. See 40 CFR 51.230 and 50.231.
    EPA is not acting on other severable portions of the April 25, 
2005, SIP submittal.\2\ Specifically, EPA is not taking action on the 
revisions submitted on April 25, 2005, to 20.2.72 NMAC--Construction 
Permits; 20.2.73 NMAC--Notice of Intent and Emissions Inventory 
Requirements; and 20.2.75 NMAC--Construction Permit Fees. These 
revisions have been or will be addressed by EPA in separate SIP 
revision reviews and rule actions.
---------------------------------------------------------------------------

    \2\ By severable, we mean that the portions of the SIP revisions 
related to the Cotton Gin regulation can be implemented 
independently of the remaining portions of the submittal, without 
affecting the stringency of the submitted rules. In addition, the 
remaining portions of the submittal are not necessary for approval 
of the provisions of 20.2.66 NMAC.
---------------------------------------------------------------------------

V. 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; 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 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 August 13, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposed 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).)

List of Subjects in 40 CFR Part 52

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

    Dated: May 30, 2012.
Samuel Coleman,
Acting Regional Administrator, EPA Region 6.

    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

0
2. The table in section 52.1620(c) entitled ``EPA Approved New Mexico 
Regulations'' is amended by adding a new entry for Part 66 (20.2.66 
NMAC) in numerical order by part number to read as follows.

[[Page 35279]]

Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                                       EPA-Approved New Mexico Regulations
----------------------------------------------------------------------------------------------------------------
                                                       State approval/
         State citation             Title/subject      effective date     EPA approval date        Comments
----------------------------------------------------------------------------------------------------------------
          New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Part 66........................  Cotton Gins.......  4/7/2005..........  6/13/2012 [Insert
                                                                          FR page number
                                                                          where document
                                                                          begins].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-14154 Filed 6-12-12; 8:45 am]
BILLING CODE 6560-50-P