[Federal Register Volume 78, Number 14 (Tuesday, January 22, 2013)]
[Rules and Regulations]
[Pages 4339-4341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00729]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0033; FRL-9770-8]


Approval and Promulgation of Implementation Plans; New Mexico; 
Revisions to the New Source Review (NSR) State Implementation Plan 
(SIP); Prevention of Significant Deterioration (PSD) and Nonattainment 
New Source Review (NNSR) Permitting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the New Mexico SIP to update the 
New Mexico NNSR and PSD SIP permitting programs consistent with federal 
requirements. EPA finds that these revisions to the New Mexico SIP meet 
the Federal Clean Air Act (the Act or CAA) and EPA regulations, and are 
consistent with EPA policies. New Mexico submitted the PSD and NNSR SIP 
permitting revisions in two SIP submittals on June 11, 2009 and May 23, 
2011. EPA is finalizing this action under section 110 and parts C and D 
of the Act.

DATES: This final rule will be effective February 21, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2011-0033. All documents in the docket are listed in 
the 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 
at 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 or Mr. Bill Deese at 214-665-7253 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 75202.
    The State submittal is also available for public inspection during 
official business hours by appointment: New Mexico Environment 
Department, Air Quality Bureau, 1301 Siler Road, Building B, Santa Fe, 
New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, Air Permits Section 
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-2115; fax number 
214-665-6762; email address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' means EPA.

Table of Contents

I. Background for Final Action
II. Final Action
III. Statutory and Executive Order Reviews

I. Background for Final Action

    The background for today's action is discussed in detail in our 
October 12, 2012 proposal (77 FR 62200). In that notice we proposed to 
approve portions of two submittals from New Mexico, dated June 11, 2009 
and May 23, 2011, that update the New Mexico Nonattainment New Source 
Review (NNSR) and Prevention of Significant Deterioration (PSD) 
permitting SIP rules consistent with federal requirements. 
Specifically, these SIP submittals address federal PSD and NNSR 
permitting requirements promulgated in EPA's Phase 2 8-hour Ozone 
Implementation Rule (70 FR 71612, November 29, 2005), NSR 
PM2.5 Rule (73 FR 28321, May 16, 2008), PM2.5 PSD 
Increment--Significant Impact Levels (SILs)--Significant Monitoring 
Concentration (SMC) Rule (75 FR 64864, October 20, 2010) and Reasonable 
Possibility in Recordkeeping Rule (72 FR 72607, December 21, 2007).
    Our October 12, 2012 proposal provides a detailed description of 
all relevant submittals and the rationale for EPA's proposed actions, 
together with a discussion of the opportunity to comment. The public 
comment period closed for this action on November 13, 2012; we did not 
receive any comments.

II. Final Action

    EPA is approving portions of two revisions to the New Mexico SIP 
submitted by the Governor of New Mexico on June 11, 2009 and May 23, 
2011. EPA has made the determination that the submitted regulations are 
approvable in accordance with section 110 and parts C and D of the Act 
and EPA's regulations, and consistent with EPA guidance. EPA is 
approving revisions to Part 74 of the New Mexico Administrative Code 
(NMAC), Title 20 (Environment Protection), Chapter 2 (Air Quality) 
except for revisions to 20.2.74.303(A) NMAC submitted on May 23, 2011. 
EPA is approving revisions to Part 79 NMAC, Title 20, Chapter 2 
submitted on June 11, 2009 and May 23, 2011.
    Specifically, EPA is approving the following revisions to Part 74 
submitted on May 23, 2011. These revisions satisfy

[[Page 4340]]

the PM2.5 PSD requirements under EPA's May 16, 2008 and 
October 20, 2010 final PM2.5 PSD permitting implementation 
rules, and EPA's December 21, 2007 Reasonable Possibility in 
Recordkeeping Rule.
     20.2.74.7 NMAC--Definitions;
     20.2.74.300 NMAC--Obligations of Owners or Operators of 
Sources;
     20.2.74.303 NMAC--Ambient Impact Requirements;
     20.2.74.306 NMAC--Monitoring Requirements;
     20.2.74.403 NMAC--Additional Requirements for Sources 
Impacting Class I Federal Areas;
     20.2.74.502 NMAC--Significant Emission Rates;
     20.2.74.503 NMAC--Significant Monitoring Concentrations;
     20.2.74.504 NMAC--Allowable PSD Increment; and
     20.2.74.505 NMAC--Maximum Allowable Increases for Class I 
Waivers.
    EPA is approving the following revisions to Part 79 submitted June 
11, 2009. These revisions satisfy EPA's November 29, 2005 Phase 2 8-
hour Ozone Implementation Rule for nonattainment areas.
     20.2.79.7 NMAC--Definitions;
     20.2.79.109 NMAC--Applicability; and
     20.2.79.115 NMAC--Emission Offsets.
    EPA is also approving the following revisions to Part 79 submitted 
May 23, 2011. These revisions satisfy EPA's PM2.5 NNSR 
requirements under EPA's May 16, 2008 and October 20, 2010 final 
PM2.5 NSR permitting implementation rules, and the December 
21, 2007 Reasonable Possibility in Recordkeeping Rule. New Mexico also 
made some nonsubstantive changes in 2011 to 20.2.79.109 NMAC as adopted 
and submitted in 2009, and we are approving these nonsubstantive 
changes.
     20.2.79.7 NMAC--Definitions;
     20.2.79.109 NMAC--Applicability; and
     20.2.79.119 NMAC--Tables.
    EPA explained in the proposal for this action that it is severing 
the revisions to 20.2.74.303(A) NMAC submitted on May 23, 2011 relating 
to PM2.5 significant impact levels (SILs). These revisions 
are equivalent to the provisions EPA has requested the DC Circuit Court 
in pending litigation to remand and vacate at 40 CFR 51.166(k)(2) that 
were promulgated on October 20, 2010, and conflict with our intentions 
for the use of SILs to demonstrate compliance with CAA section 163(a). 
(Sierra Club v. EPA, Case No 10-1413, DC Circuit). Therefore, 
20.2.74.303 NMAC as adopted by NMED on January 1, 2011, and SIP-
approved by EPA on July 20, 2011, remains the SIP-approved section. See 
76 FR 43149. The NMED continues to retain the ability to implement the 
PM2.5 SILs at 20.2.79.119 NMAC consistent with EPA's 
interpretation of CAA section 163(a). Further, the revisions to 
20.2.74.303(A) NMAC submitted on May 23, 2011, will remain before EPA 
for review. EPA will revisit these submitted revisions after the court 
addresses EPA's request for remand with vacatur or EPA initiates 
rulemaking to revise 40 CFR 51.166(k)(2).

III. Statutory and Executive Order Reviews

    Under the CAA, 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 CAA. 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 CAA; 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 its 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 March 25, 2013. 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements.

    Dated: January 3, 2013.
Ron Curry,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

[[Page 4341]]

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. Section 52.1620(c) is amended by revising the entries for Parts 74 
and 79 under the first table titled ``New Mexico Administrative Code 
(NMAC) Title 20--Environment Protection Chapter 2--Air Quality''.
    The revisions read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                                       EPA Approved New Mexico Regulations
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                                                             State
                                                           approval/
          State citation              Title/subject        effective     EPA approval date         Comments
                                                             date
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          New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
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                                                  * * * * * * *
Part 74..........................  Permits--Prevention        6/3/2011  1/22/2013 [Insert    Revisions to
                                    of Significant                       FR page number       20.2.74.303(A)
                                    Deterioration.                       where document       NMAC submitted 5/
                                                                         begins].             23/2011, effective
                                                                                              6/3/2011, are NOT
                                                                                              part of SIP.
                                                                                             20.2.74.303 NMAC
                                                                                              submitted 12/1/
                                                                                              2010, effective 1/
                                                                                              1/2011, remains
                                                                                              SIP approved (6/20/
                                                                                              2011, 76 FR
                                                                                              43149).
 
                                                  * * * * * * *
Part 79..........................  Permits--Nonattainm        6/3/2011  1/22/2013 [Insert    ...................
                                    ent Areas.                           FR page number
                                                                         where document
                                                                         begins].
 
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[FR Doc. 2013-00729 Filed 1-18-13; 8:45 am]
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