[Federal Register Volume 78, Number 164 (Friday, August 23, 2013)]
[Proposed Rules]
[Pages 52473-52476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20657]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0060; FRL-9900-26-Region 6]


Approval and Promulgation of Implementation Plans; New Mexico; 
Prevention of Significant Deterioration; Greenhouse Gas Plantwide 
Applicability Limit Permitting Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve portions of one revision to 
the New Mexico State Implementation Plan (SIP) submitted by the New 
Mexico Environment Department (NMED) to EPA on January 8, 2013. The 
January 8, 2013, proposed SIP revision adopts necessary rule revisions 
to the PSD plantwide applicability limit (PAL) permitting provisions to 
issue PALs to GHG sources. EPA is proposing to approve the January 8, 
2013 SIP revision to the New Mexico PSD permitting program as 
consistent with federal requirements for PSD permitting. At this time, 
EPA is proposing to sever and take no action on the portion of the 
January 8, 2013, SIP revision that relates to the provisions of EPA's 
July 20, 2011 GHG Biomass Deferral Rule. EPA is proposing this action 
under section 110 and part C of the Clean Air Act (CAA or the Act). EPA 
is not proposing to approve these rules within the exterior boundaries 
of a reservation or other areas within any Tribal Nation's 
jurisdiction.

DATES: Comments must be received on or before September 23, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2013-0060, by one of the following methods:
     http://www.regulations.gov. Follow the online instructions 
for submitting comments.
     Email: Ms. Adina Wiley at [email protected].
     Fax: Ms. Adina Wiley, Air Permits Section (6PD-R), at fax 
number 214-665-6762.
     Mail or Delivery: Ms. Adina Wiley, Air Permits Section 
(6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2013-0060. 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://

[[Page 52474]]

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 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:
    New Mexico Environment Department, Air Quality Bureau, 1190 St. 
Francis Drive, Santa Fe, New Mexico, 87502.

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley (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) 665-2115. Ms. Wiley 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.

Table of Contents

I. Background for Our Proposed Action
    A. History of EPA's GHG-Related Actions
    B. EPA's Biomass Deferral Rule
    C. EPA's Tailoring Rule Step 3
II. Summary of State Submittal
III. EPA's Analysis of State Submittal
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background for Our Proposed Action

    The Act at section 110(a)(2)(C) requires states to develop and 
submit to EPA for approval into the state SIP, preconstruction review 
and permitting programs applicable to certain new and modified 
stationary sources of air pollutants for attainment and nonattainment 
areas that cover both major and minor new sources and modifications, 
collectively referred to as the New Source Review (NSR) SIP. The CAA 
NSR SIP program is composed of three separate programs: Prevention of 
Significant Deterioration (PSD), Nonattainment New Source Review 
(NNSR), and Minor NSR. PSD is established in part C of title I of the 
CAA and applies in areas that meet the NAAQS--``attainment areas''--as 
well as areas where there is insufficient information to determine if 
the area meets the NAAQS--``unclassifiable areas.'' The NNSR SIP 
program is established in part D of title I of the CAA and applies in 
areas that are not in attainment of the NAAQS--``nonattainment areas.'' 
The Minor NSR SIP program addresses construction or modification 
activities that do not emit, or have the potential to emit, beyond 
certain major source thresholds and thus do not qualify as ``major'' 
and applies regardless of the designation of the area in which a source 
is located. EPA regulations governing the criteria that states must 
satisfy for EPA approval of the NSR programs as part of the SIP are 
contained in 40 CFR 51.160-51.166.
    New Mexico submitted on January 8, 2013, regulations specific to 
the New Mexico PSD permitting program for approval by EPA into the New 
Mexico SIP. The January 8, 2013, SIP submittal includes the PSD 
permitting provisions that were adopted on January 7, 2013 at 20.2.74 
NMAC to defer the application of the PSD requirements to biogenic 
carbon dioxide emissions from bioenergy and other biogenic stationary 
sources consistent with the EPA's final rule ``Deferral for 
CO2 Emissions from Bioenergy and other Biogenic Sources 
under the Prevention of Significant Deterioration (PSD) and Title V 
Programs'' (76 FR 43490) (hereafter referred to as the ``Biomass 
Deferral Rule''). The January 8, 2013, SIP submittal also adopts 
regulations that provide NMED the ability to issue GHG PALs consistent 
with the ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule Step 3 and GHG Plantwide Applicability 
Limits Final Rule'' (77 FR 41051) hereafter referred to as the 
``Tailoring Rule Step 3''.
    On July 12, 2013, the U.S. Court of Appeals for the D.C. Circuit 
issued its decision to vacate the Biomass Deferral Rule. See Center for 
Biological Diversity v. EPA (D.C. Cir. No. 11-1101).\1\ At this time, 
EPA is proposing to sever and take no action on the portion of the 
January 8, 2013, SIP submittal that adopted the biomass deferral 
provisions.
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    \1\ The July 12, 2013, order states ``[it] is ORDERED, on the 
court's own motion, that the Clerk withhold issuance of the mandate 
herein until seven days after disposition of any timely petition for 
rehearing or petition for rehearing en banc. See Fed. R. App. P. 
41(b); D.C. Cir. Rule 41. This instruction to the Clerk is without 
prejudice to the right of any party to move for expedited issuance 
of the mandate for good cause shown.''
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    Today's proposed action and the accompanying Technical Support 
Document (TSD) present our rationale for proposing approval of these 
regulations as meeting the minimum federal requirements for the 
adoption and implementation of the PSD SIP permitting programs.

A. History of EPA's GHG-Related Actions

    This section briefly summarizes EPA's recent GHG-related actions 
that provide the background for this action. For more information about 
EPA's actions, please

[[Page 52475]]

see the preambles for the identified GHG-related rulemakings discussed 
in the following paragraphs. The citations for each rulemaking are 
included below in footnotes to aid the reader.
    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part are 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. 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, finalized a finding of failure to submit followed by a 
Federal Implementation Plan.6 7 8
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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).
    \6\ ``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; Final Rule'' 75 FR 77698 (December 13, 2010). New Mexico was 
not subject to the SIP Call.
    \7\ ``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). New Mexico was not subject to the SIP 
Call so EPA did not make a finding of failure to submit for New 
Mexico.
    \8\ ``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). New Mexico was not covered by the GHG PSD 
Federal Implementation Plan.
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    For other states, EPA recognized that many 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; 
therefore, EPA issued the GHG PSD SIP Narrowing Rule.\9\ 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). Under the GHG PSD SIP Narrowing 
Rule, EPA withdrew the approval of the New Mexico PSD SIP only to the 
extent that the New Mexico SIP covered GHG-emitting sources below the 
Tailoring Rule thresholds. EPA has since removed the Narrowing Rule 
restrictions from the New Mexico SIP because we approved the revisions 
to the New Mexico PSD program that were submitted on December 1, 2010, 
establishing appropriate GHG PSD permitting thresholds consistent with 
EPA's Tailoring Rule. See 76 FR 43149, July 20, 2011.
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    \9\ ``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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B. EPA's Biomass Deferral Rule

    On July 20, 2011, EPA promulgated the final ``Deferral for 
CO2 Emissions from Bioenergy and other Biogenic Sources 
Under the Prevention of Significant Deterioration (PSD) and Title V 
Programs'' (Biomass Deferral Rule). The Biomass Deferral delayed until 
July 21, 2014 the consideration of CO2 emissions from 
bioenergy and other biogenic sources when determining whether a 
stationary source meets the PSD and Title V applicability thresholds.
    The D.C. Circuit Court issued its decision to vacate the Biomass 
Deferral Rule on July 12, 2013.

C. EPA's Tailoring Rule Step 3

    On July 12, 2012, EPA promulgated the final ``Prevention of 
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule 
Step 3 and GHG Plantwide Applicability Limits'' (GHG Tailoring Rule 
Step 3 and GHG PALs). Following is a brief discussion of the Tailoring 
Rule Step 3. For a full discussion of EPA's rationale for the rule, see 
the notice of final rulemaking at 77 FR 41051.
    In the Tailoring Rule, we made regulatory commitments for 
subsequent action, including promulgating the Tailoring Rule Step 3. 
Specifically, we committed in Step 3 to propose or solicit comment on 
lowering the 100,000/75,000 major source threshold on the basis of 
three criteria that concerned whether the permitting authorities had 
the necessary time to develop greater administrative capacity due to an 
increase in resources or permitting experience, as well as whether the 
EPA and the permitting authorities had developed ways to streamline 
permit issuance. We committed to complete the Step 3 action by July 1, 
2012.
    The EPA finalized Step 3 by determining not to lower the current 
GHG applicability thresholds from the Step 1 and Step 2 levels at this 
time. We found that the three criteria have not been met because state 
permitting authorities have not had sufficient time and opportunity to 
develop the necessary infrastructure and increase their GHG permitting 
expertise and capacity, and that we and the state permitting 
authorities have not had the opportunity to develop streamlining 
measures to improve permit implementation. See 77 FR 41051, 41052.
    The Tailoring Rule Step 3 also promulgated revisions to our 
regulations under 40 CFR part 52 for better implementation of the 
federal program for establishing PALs for GHG emissions. A PAL 
establishes a site-specific plantwide emission level for a pollutant 
that allows the source to make changes at the facility without 
triggering the requirements of the PSD program, provided that emissions 
do not exceed the PAL level. Under the EPA's interpretation of the 
federal PAL provisions, such PALs are already available under PSD for 
non-GHG pollutants and for GHGs on a mass basis, and we revised the PAL 
regulations to allow for GHG PALs to be established on a CO2e basis as 
well. We also revised the regulations to allow a GHG-only source to 
submit an application for a CO2e-based GHG PAL while also maintaining 
its minor source status. We believe that these actions could streamline 
PSD permitting programs by allowing sources and permitting authorities 
to address GHGs one time for a source and avoid repeated subsequent 
permitting actions for a 10- year period. See 77 FR 41051, 41052.

[[Page 52476]]

II. Summary of State Submittal

    EPA's most recent approval to the New Mexico PSD program was on 
January 22, 2013, where we updated our approval of the NM PSD program 
to include the required elements for PSD permitting of PM2.5 
that were submitted on May 23, 2011. See 78 FR 4339. Since that time, 
the State of New Mexico has adopted and submitted one revision to the 
PSD program on January 8, 2013, affecting the following sections:
     20.2.74.7 NMAC--Definitions,
     20.2.74.320 NMAC--Actuals Plantwide Applicability Limits 
(PALs)

These revisions have been submitted to adopt and implement the GHG 
Biomass deferral provisions consistent with EPA's July 20, 2011 Final 
Rule titled ``Deferral for CO2 Emissions from Bioenergy and Other 
Biogenic Sources Under the Prevention of Significant Deterioration 
(PSD) and Title V Programs'', and the Tailoring Rule Step 3 permitting 
provisions consistent with EPA's July 12, 2012 Final Rule titled 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule Step 3 and GHG Plantwide Applicability Limits''. The New 
Mexico Environment Department received no comments on this rulemaking.

III. EPA's Analysis of State Submittal

    As explained more fully in the accompanying TSD in this rulemaking, 
New Mexico has adopted and submitted regulations that are substantively 
similar to the federal requirements for the permitting of GHG-emitting 
sources subject to PSD. The detailed analysis in our TSD demonstrates 
that the revisions to 20.2.74.7(AZ)(1) and 20.2.74.320 NMAC adopted on 
January 7, 2013, and submitted on January 8, 2013, appropriately 
revised the PSD PAL permitting requirements to provide the NMED the 
authority to issue GHG PALs, consistent with EPA's Tailoring Rule Step 
3 for GHG PALs. Our analysis also demonstrated that non-substantive 
revisions adopted at 20.2.74.7(AZ)(1), (2), (2)(b), (3), (4), and (5) 
to correct typographical errors are also approvable.
    Our analysis also demonstrates that New Mexico adopted revisions to 
the definition of ``subject to regulation'' at 20.2.74.7(AZ)(2)(a) NMAC 
on January 7, 2013, and submitted on January 8, 2013, for the GHG 
biomass deferral rule. The D.C. Circuit Court issued its decision to 
vacate EPA's Biomass Deferral Rule on July 12, 2013. At this time, we 
are proposing to sever and take no action on the submitted biomass 
revisions from New Mexico.

IV. Proposed Action

    EPA proposes to approve portions of the January 8, 2013, submitted 
revisions to 20.2.74 NMAC into the New Mexico PSD SIP. New Mexico's 
January 8, 2013, proposed SIP revision adopts the necessary rule 
revisions to provide NMED the authority to issue GHG PALs in the New 
Mexico PSD program. EPA has made the preliminary determination that the 
January 8, 2013 revisions to 20.2.74 NMAC are approvable because they 
are adopted and submitted in accordance with the CAA and EPA 
regulations regarding PSD permitting for GHGs. Therefore, under section 
110 and part C of the Act, and for the reasons stated above, EPA 
proposes to approve the following revisions to the New Mexico SIP:
     Substantive revisions to 20.2.74.7(AZ)(1) NMAC 
establishing GHG PAL permitting requirements,
     Non-substantive revisions to 20.2.74.7(AZ)(1), (2), 
(2)(b), (3), (4), and (5) to correct formatting, and
     Substantive revisions to 20.2.74.320 NMAC establishing the 
GHG PAL permitting requirements.
    EPA is proposing to sever and take no action at this time on the 
submitted revisions to 20.2.74.7(AZ)(2)(a) NMAC. The D.C. Circuit Court 
issued an order to vacate EPA's Biomass Deferral Rule on July 12, 2013.
    EPA is not proposing to approve these rules within the exterior 
boundaries of a reservation or other areas within any Tribal Nation's 
jurisdiction.

V. 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 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: August 9, 2013.
Samuel Coleman,
Acting Regional Administrator, Region 6.
[FR Doc. 2013-20657 Filed 8-22-13; 8:45 am]
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