[Federal Register Volume 78, Number 47 (Monday, March 11, 2013)]
[Rules and Regulations]
[Pages 15296-15299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05484]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-NM-0006; FRL-9788-8]


Approval and Promulgation of Implementation Plans; New Mexico; 
New Source Review (NSR) Preconstruction Permitting Program; 
Clarification of EPA's Approval of the Sunland Park Section 110(a)(1) 
Maintenance Plan for the 1997 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
applicable New Source Review (NSR) State Implementation Plan (SIP) for 
New Mexico. Among the changes, EPA is approving the following: the 
establishment of a new Minor NSR (MNSR) general construction permitting 
program; changes to the MNSR Public Participation requirements; the 
establishment of three different types of MNSR Permit Revisions; and 
the addition of exemptions for de minimis emission sources and 
activities from obtaining a MNSR permit. EPA finds that these revisions 
to the New Mexico SIP comply with the Federal Clean Air Act (the Act or 
CAA) and EPA regulations and are consistent with EPA policies. EPA also 
is providing clarification of an earlier separate EPA rulemaking action 
approving the Section 110(a)(1) Maintenance Plan for the 1997 8-hour 
ozone standard for the Sunland Park 1997 8-hour attainment area. This 
action is being taken under section 110 of the Act.

DATES: This final rule is effective on April 10, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R06-OAR-2005-NM-0006. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through 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 Freedom 
of Information Act 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 15 cent per page fee 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 submittals related to this SIP revision, and which are 
part of the EPA docket, are 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: Ms. Ashley Mohr, Air Permits Section 
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7289; fax 
number (214) 665-6762; email address [email protected].

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

Table of Contents

I. What is the background for this action?
II. What public comments were received?
III. What final action is EPA taking?
    A. What are we not addressing in this final action?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

    The background for today's action is discussed in detail in our 
November 29, 2012 proposal (77 FR 71145). In that notice, we proposed 
to approve revisions to the NSR SIP for New Mexico submitted on May 29, 
1998, November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 
2006, which incorporate changes to the Construction Permits regulation 
contained in 20.2.72 of the New Mexico Administrative Code (NMAC), also 
known as Part 72. Part 72 contains the provisions that establish New 
Mexico's Minor NSR permitting program as well as preconstruction 
permitting requirements potentially applicable to other programs under 
the NMAC. EPA also proposed to approve as part of the New Mexico NSR 
SIP, the letter dated November 7, 2012, from the Secretary committing 
the New Mexico Environment Department (NMED) Air Quality Bureau to 
providing notification on the NMED's Web site of all second 30-day 
public comment periods provided for under Paragraph B of Section 206 of 
Part 72.
    Our November 29, 2012 proposal provides a detailed description of 
the submittals and the rationale for EPA's proposed action, together 
with a discussion of the opportunity to comment. The public comment 
period for this action closed on December 31, 2012.

II. What public comments were received?

    The Federal Register proposing approval of these SIP revisions was 
published on November 29, 2012, and the public comment period closed on 
December 31, 2012. EPA received one comment letter submitted by the 
NMED (hereinafter referred to as ``the commenter''). The comment letter 
is available for review in the docket for this rulemaking. We received 
no adverse comments on the proposed rule from the commenter. The 
commenter generally expressed support of EPA's proposed approval of 
these SIP revisions, and raised two considerations that EPA is 
clarifying in its responses.
    Comment: The commenter raised a concern about EPA's reference in 
its proposed action incorrectly referring to the Sunland Park, New 
Mexico area as being designated nonattainment for the revoked 1-hour 
ozone National Ambient Air Quality Standard (NAAQS). The commenter 
contends that this area is no longer designated as nonattainment for 
the 1-hour ozone NAAQS.
    Response: EPA agrees the Sunland Park area is no longer designated 
nonattainment for the 1-hour ozone NAAQS.\1\ EPA revoked the 1-hour 
ozone NAAQS for the Sunland Park area

[[Page 15297]]

effective one year following the effective date of the area's 
designation as attainment for the 1997 8-hour ozone NAAQS--June 15, 
2005.\2\ EPA subsequently approved a maintenance plan for the 8-hour 
standard for the Sunland Park area under section 110(a)(1) of the CAA 
and 40 CFR 51.905(a)(3)(iii). Therefore, Sunland Park's prior 
designation under the 1-hour ozone standard is of historical interest 
only.\3\ As NMED points out, EPA has determined that Sunland Park has 
met all of its obligations under the revoked 1-hour ozone standard. 
Therefore, the reference to the prior 1-hour ozone designation status 
of the Sunland Park area in the proposal has no effect on its current 
obligations.
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    \1\ EPA stated in the proposed action, in part: ``* * *the only 
area designated nonattainment for the 1-hour ozone NAAQS is Sunland 
Park.'' 77 FR 71151, November 29, 2012.
    \2\ Codified at 70 FR 44470, April 3, 2005.
    \3\ The list of past 1-hour ozone designations in 40 CFR part 81 
for Sunland Park is a historical reference only.
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    Comment: The commenter states that New Mexico submitted, and EPA 
approved, a timely maintenance plan for the new 8-hour ozone standard 
for the Sunland Park area in accordance with 40 CFR 51.905(a)(3)(iii). 
The commenter also states that EPA has previously noted in its approval 
of the maintenance plan, ``[t]here are no outstanding obligations under 
the 1-hour ozone NAAQS'' for the Sunland Park area. 76 FR 28181 at 
28182 (May 16, 2011). The commenter affirms that because the State's 
SIP-approved permitting rules are self implementing, the Prevention of 
Significant Deterioration (PSD) permitting requirements became 
applicable for the Sunland Park area upon revocation of the 1-hour 
ozone NAAQS.
    Response: EPA agrees the SIP's PSD rules are self-implementing and, 
as a result, the PSD SIP permitting requirements are applicable to the 
Sunland Park area. As long as New Mexico interprets its SIP as applying 
PSD to Sunland Park, upon approval of the Sunland Park maintenance plan 
for the 1997 8-hour ozone NAAQS, the 1-hour ozone Nonattainment NSR 
(NNSR) permitting requirements for the Sunland Park area were no longer 
required. New Mexico submitted, and EPA approved, a timely maintenance 
plan for the 1997 8-hour ozone NAAQS for the Sunland Park area.\4\ 
Consistent with this confirmation, provided in the comment letter from 
NMED, that the New Mexico SIP's PSD rules are self-implementing and 
therefore applicable to the Sunland Park area, EPA wishes to clarify 
its previous approval of the Sunland Park maintenance plan for the 1997 
8-hour ozone NAAQS. Our previous approval did not make clear that New 
Mexico's PSD SIP permitting requirements are applicable to the Sunland 
Park area, and therefore EPA would not require the continued 
application of 1-hour ozone NNSR permitting requirements for the area 
upon approval of the maintenance plan. Consistent with the commenter's 
affirmation and EPA's confirmation that the New Mexico SIP's PSD rules 
are self-implementing, EPA clarifies that the PSD SIP permitting 
requirements have been applicable to the Sunland Park area from the 
effective date of EPA's approval of the maintenance plan.
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    \4\ Approval and Promulgation of Air Quality Implementation 
Plans; New Mexico; Sunland Park Section 110(A)(1) Maintenance Plan 
for the 1997 8-hour Ozone Standard, 76 FR 28181, May 16, 2011.
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III. What final action is EPA taking?

    We are approving the SIP revisions to the Construction Permits 
regulation found in Part 72 that were submitted by New Mexico on May 
29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and 
November 2, 2006, and the letter from the Secretary dated November 7, 
2012. This action is being taken under section 110 of the CAA. 
Additionally, EPA is clarifying statements made in the proposed action 
and the approach it took with respect to the 1-hour ozone nonattainment 
NSR/PSD transition in its approval of the Sunland Park 110(a)(1) 
maintenance plan.

A. What are we not addressing in this final action?

    EPA is only taking final action on the severable revisions to Part 
72 contained in the five SIP revision submittals listed above that were 
submitted to us for review and incorporation into the New Mexico SIP. 
By severable, we mean that the portions of the SIP revision submittals 
relating to Part 72 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 addressing Part 72. 
The following is a list of other revisions contained in the November 6, 
1998, April 11, 2002, April 25, 2005, and November 2, 2006 submittals 
that are not being addressed in this final action:
     The November 6, 1998 submittal from New Mexico also 
contained revisions to correct errors in 20.2.70 NMAC--Operating 
Permits. Because 20.2.70 NMAC is outside the scope of the New Mexico 
SIP, the revisions to the Operating Permits provisions were not 
submitted as revisions to the state's SIP.
     The April 11, 2002 submittal from New Mexico also 
contained revisions to 20.2.73 NMAC--Notice of Intent and Emissions 
Inventory Requirements, 20.2.74 NMAC--Permits--Prevention of 
Significant Deterioration, 20.2.75 NMAC--Construction Permit Fees, and 
20.2.79 NMAC--Permits--Nonattainment Areas. Portions of the submittal 
related to Parts 73, 74, 75, and 79 have been or will be addressed in 
separate SIP revisions reviews and rule actions, as necessary.
     The April 11, 2002 submittal also included documentation 
related to an additional revision to 20.2.72 NMAC (filed with the State 
Records Center on February 28, 2001, effective March 30, 2001), which 
was submitted to EPA for informational purposes only and was not 
submitted for approval under the SIP. Therefore, the February 28, 2001 
state adopted revisions to Part 72 are not included in this final 
action.
     The April 25, 2005 submittal from New Mexico also 
contained revisions to 20.2.66 NMAC--Cotton Gins, 20.2.73 NMAC--Notice 
of Intent and Emissions Inventory Requirements, and 20.2.75 NMAC--
Construction Permit Fees. Portions of the submittal related to Parts 
66, 73, and 75 have been or will be addressed in separate SIP revisions 
reviews and rule actions, as necessary.
     The November 2, 2006 submittal from New Mexico also 
contained revisions to 20.2.3 NMAC--Ambient Air Quality Standards, 
20.2.70 NMAC--Operating Permits, and 20.2.99 NMAC--Conformity to the 
State Implementation Plan of Transportation Plans, Programs and 
Projects. Portions of the submittal related to Parts 3, 70, and 99 have 
been or will be addressed in separate SIP revisions reviews and rule 
actions, as necessary.

IV. 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.);

[[Page 15298]]

     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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 10, 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 26, 2013.
Samuel Coleman, P.E.,
Acting Regional Administrator, 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. Section 52.1620 is amended as follows:
0
a. The first table in paragraph (c) entitled ``EPA Approved New Mexico 
Regulations'' is amended by revising the entry for part 72.
0
b. The second table in paragraph (e) entitled ``EPA Approved 
Nonregulatory Provisions and Quasi-Regulatory Measures in the New 
Mexico SIP'' is amended by adding to the end of the table a new entry 
for ``Letter of commitment for the New Mexico SIP for Minor NSR Public 
Notice.''
    The revision and addition read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

[[Page 15299]]



                                                           EPA Approved New Mexico Regulations
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                                                                    State approval/
            State citation                    Title/subject          effective date       EPA approval date                      Comments
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                              New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
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                                                                      * * * * * * *
Part 72...............................  Construction Permits.....           9/6/2006  3/11/2013 [Insert FR page  The SIP includes NMED's letter dated 11/
                                                                                       number where document      7/2012, which commits the NMED Air
                                                                                       begins].                   Quality Bureau to providing
                                                                                                                  notification on the NMED's website of
                                                                                                                  all second 30-day public comment
                                                                                                                  periods provided for under paragraph B
                                                                                                                  of 20.2.72.206. NOT in SIP: the
                                                                                                                  definitions of ``Accelerated review'',
                                                                                                                  ``Affiliate'', ``Conflict of
                                                                                                                  interest'', ``Interested party'' and
                                                                                                                  ``Qualified outside firm'' in
                                                                                                                  20.2.72.7; subsection (B)(15) of
                                                                                                                  20.2.72.203; subsection (H) of
                                                                                                                  20.2.72.208; 20.2.72.221; 20.2.72.400-
                                                                                                                  20.2.72.499; and 20.2.72.502.
                                                                                                                  References to 20.2.77, 20.2.78, and
                                                                                                                  20.2.82 are approved for Part 72 only;
                                                                                                                  underlying and related regulations for
                                                                                                                  referred Parts NOT in SIP.
 
                                                                      * * * * * * *
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* * * * *
    (e) * * *
* * * * *

                 EPA Approved Nonregulatory and Quasi-Regulatory Measures in the New Mexico SIP
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                                     Applicable
                                   geographic or     State submittal/
     Name of SIP provision         nonattainment      effective date   EPA approval date        Explanation
                                        area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Letter of commitment for the     Statewide (except          11/7/2012  3/11/2013 [Insert  Letter dated 11/7/2012
 New Mexico SIP for Minor NSR     Bernalillo                            FR page number     from NMED to EPA that
 Public Notice.                   County).                              where document     commits the NMED Air
                                                                        begins].           Quality Bureau to
                                                                                           providing
                                                                                           notification on the
                                                                                           NMED's website of all
                                                                                           second 30-day public
                                                                                           comment periods
                                                                                           provided for under
                                                                                           paragraph B of
                                                                                           20.2.72.206.
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[FR Doc. 2013-05484 Filed 3-8-13; 8:45 am]
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