[Federal Register Volume 80, Number 97 (Wednesday, May 20, 2015)]
[Proposed Rules]
[Pages 28901-28906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-11780]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2013-0616; FRL-9927-23-Region 6]


Approval and Promulgation of Implementation Plans; New Mexico; 
Revisions to the New Source Review (NSR) State Implementation Plan 
(SIP) for Albuquerque-Bernalillo County; Prevention of Significant 
Deterioration (PSD) Permitting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve two revisions to the New Mexico State Implementation Plan (SIP) 
to update the Albuquerque-Bernalillo County Prevention of Significant 
Deterioration (PSD) SIP permitting program consistent with federal 
requirements. New Mexico submitted the Albuquerque-Bernalillo County 
PSD SIP permitting revisions on July 26, 2013, and March 4, 2015, which 
included a request for parallel processing of the submitted 2015 
revisions. These submittals contain revisions to address the 
requirements of the EPA's May 2008, July 2010, and October 2012 
PM2.5 PSD Implementation Rules and to incorporate revisions 
consistent with the EPA's March 2011 Fugitives Interim Rule, July 2011 
Greenhouse Gas (GHG) Biomass Deferral Rule, and July 2012 GHG Tailoring 
Rule Step 3 and GHG PALs Rule. The EPA is proposing to find 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. We 
are proposing this action under section 110 and part C of title I of 
the Act. The EPA is not approving these rules within the exterior 
boundaries of a reservation or other areas within any Tribal Nation's 
jurisdiction.

DATES: Written comments should be received on or before June 19, 2015.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2013-0616, by one of the following methods:
     www.regulations.gov: Follow the online instructions.
     Email: Ms. Ashley Mohr at [email protected].
     Mail or delivery: Ms. Ashley Mohr, 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-
2013-0616. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at 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 www.regulations.gov or email, if you believe that it is CBI or 
otherwise protected from disclosure. The www.regulations.gov Web site 
is an ``anonymous access'' system, which means that the 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 the EPA 
without going through 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, the 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 the EPA cannot read your comment 
due to technical difficulties and cannot contact you for clarification, 
the 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.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Mohr, (214) 665-7289, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Ms. Ashley Mohr or Mr. Bill Deese at (214) 
665-7253.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Background
    A. New Mexico's SIP Submittals
    B. Relevant EPA Rulemakings
II. The EPA's Evaluation
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    The Act at section 110(a)(2)(C) requires states to develop and 
submit to the EPA for approval into the State Implementation Plan 
(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 Clean Air Act (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 National Ambient Air Quality Standards (NAAQS)--``attainment 
areas''--as well as areas where there is insufficient information to 
determine if the area meets the NAAQS--``unclassifiable

[[Page 28902]]

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. The 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.

A. New Mexico's SIP Submittals

    Since the EPA's last SIP approval on September 19, 2012, of PSD SIP 
requirements for Albuquerque-Bernalillo County,\1\ the State of New 
Mexico has submitted two revisions to the Albuquerque-Bernalillo County 
PSD program: (1) A SIP revision submittal dated July 26, 2013, which 
affects sixteen sections under 20.11.61 NMAC; and (2) a request for 
parallel processing of a SIP revision dated March 4, 2015, which 
affects two sections under 20.11.61 NMAC.
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    \1\ See 77 FR 58032.
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i. Summary of the January 26, 2013, SIP Submittal
    The July 26, 2013, SIP submittal contains revisions to adopt and 
implement: (1) the EPA's 2008 NSR PM2.5 Rule, (2) the EPA's 
2010 PM2.5 PSD Increment--Significant Impact Levels (SILs)--
Significant Monitoring Concentration (SMC) Rule, (3) the EPA's 2012 
PM2.5 NSR Implementation Rule, (4) the EPA's 2011 Fugitives 
Interim Rule, (5) the EPA's 2011 Biomass Deferral Rule, and (6) the 
EPA's 2012 GHG Tailoring Rule Step 3 and GHG PALs Rule. The July 2013 
submittal from New Mexico also contains other non-substantive revisions 
to the Albuquerque-Bernalillo County PSD program that are not directly 
associated with the incorporation of the EPA Rules. As part of this 
proposed rulemaking, the EPA is addressing these non-substantive 
revisions and the substantive revisions to the New Mexico SIP that were 
submitted to adopt and implement the six aforementioned rulemakings by 
the EPA.
ii. Summary of the March 4, 2015, SIP Submittal
    On March 4, 2015, New Mexico submitted a request for the parallel 
processing of additional SIP revisions to the Albuquerque-Bernalillo 
County PSD program. This means that the EPA is proposing approval of 
the submitted revisions at the same time that the public comment and 
rulemaking process is taking place at the state and local level. These 
proposed revisions to part 61 are being made in response to comments 
the EPA provided on the July 26, 2013, SIP submittal. Specifically, the 
March 2015 parallel processing request contains proposed revisions to 
Section 7--Definitions and Section 11--Applicability. New Mexico's 
parallel processing request was made in accordance with paragraph 2.3.1 
of appendix V to 40 CFR part 51. As part of this proposed rulemaking, 
the EPA is addressing the proposed revisions to the New Mexico SIP 
contained in the March 4, 2015, parallel processing request. As 
required by paragraph 2.3.2 of appendix V to 40 CFR part 51, the EPA 
will not take final action on the proposed revisions contained in the 
March 4, 2015, submittal until the final SIP revision submittal 
containing these revisions to the Albuquerque-Bernalillo County PSD 
program as a final adoption is received from New Mexico. Therefore, the 
EPA is proposing to approve the SIP revision request after the 
completion of the state public process and final submittal. More 
information regarding the anticipated timeline of the state's 
rulemaking process is contained in the TSD accompanying this proposed 
action.

B. Relevant EPA Rulemakings

i. Summary of the EPA's 2008 NSR PM2.5 Rule
    On May 8, 2008, the EPA finalized the NSR PM2.5 Rule to 
implement the PM2.5 NAAQS. See 73 FR 28321. As a result of 
the EPA's final NSR PM2.5 Rule, states were required to 
submit applicable SIP revisions to the EPA no later than May 16, 2011, 
to address this Rule's PSD and NNSR SIP requirements. With respect to 
PSD permitting, the SIP revision submittals are required to meet the 
following PSD SIP requirements to implement the PM2.5 NAAQS: 
(1) Require PSD permits to address directly emitted PM2.5 
and precursor pollutants; (2) establish significant emission rates for 
direct PM2.5 and precursor pollutants (including 
SO2 and NOX); and (3) account for gases that 
condense to form particles (condensables) in PM2.5 and 
PM10 emission limits in PSD permits.
    Prior to the adoption of the revisions included in the July 26, 
2013, SIP submittal, the Albuquerque-Bernalillo County Air Board 
adopted revisions to 20.11.61 NMAC to incorporate all but one of the 
amendments consistent with the EPA's 2008 NSR PM2.5 Rule. 
These revisions were approved by the EPA on September 19, 2012. See 77 
FR 58032. New Mexico's July 26, 2013, SIP revision submittal 
incorporates the final remaining amendment to 20.11.61 NMAC to be 
consistent with the revisions to the federal rules at 40 CFR 
51.166(i)(5) contained in the EPA's 2008 rulemaking. Specifically, the 
July 2013 SIP submittal amends 20.11.61 NMAC to include an additional 
exemption that gives the department discretion to exempt a stationary 
source from air monitoring requirements for a particular pollutant. The 
EPA finds that New Mexico's July 26, 2013, SIP revision submittal is 
consistent with the 2008 NSR PM2.5 Rule for PSD and meets 
the requirements of section 110 and part C of the CAA.
ii. Summary of the EPA's 2010 PM2.5 PSD Increment--SILs--SMC 
Rule
    On October 20, 2010, the EPA finalized the PM2.5 PSD 
Increment--SILs--SMC Rule to provide additional regulatory requirements 
under the PSD SIP program regarding the implementation of the 
PM2.5 NAAQS for NSR. See 75 FR 64864. As a result, the 
PM2.5 PSD Increment--SILs--SMC Rule required states to 
submit SIP revisions to adopt the required PSD increments by July 20, 
2012. Specifically, the SIP rule requires a state's submitted PSD SIP 
revision to adopt and submit for the EPA approval the PM2.5 
increments pursuant to section 166(a) of the CAA to prevent significant 
deterioration of air quality in areas meeting the NAAQS. States could 
also discretionarily choose to adopt and submit for EPA approval SILs 
used as a screening tool (by a major source subject to PSD) to evaluate 
the impact a proposed major source or modification may have on the 
NAAQS or PSD increment and a SMC, (also a screening tool) used by a 
major source subject to PSD to determine the subsequent level of data 
gathering required for a PSD permit application for emissions of 
PM2.5. More detail on the PM2.5 PSD Increment--
SILs--SMC Rule can be found in the EPA's October 20, 2010, final rule. 
See 75 FR 64864.
(a) What are PSD increments?
    Under section 165(a)(3) of the CAA, a PSD permit applicant must 
demonstrate that emissions from the proposed construction and operation 
of a facility ``will not cause, or contribute to, air pollution in 
excess of any maximum allowable increase or allowable concentration for 
any pollutant.'' In other words, when a source applies for a PSD SIP 
permit to emit a regulated pollutant in an attainment or unclassifiable 
area, the permitting

[[Page 28903]]

authority implementing the PSD SIP must determine if emissions of the 
regulated pollutant from the source will cause significant 
deterioration in air quality. Significant deterioration occurs when the 
amount of the new pollution exceeds the applicable PSD increment, which 
is the ``maximum allowable increase'' of an air pollutant allowed to 
occur above the applicable baseline concentration \2\ for that 
pollutant. PSD increments prevent air quality in attainment and 
unclassifiable areas from deteriorating to the level set by the NAAQS. 
Therefore, an increment is the mechanism used to estimate ``significant 
deterioration'' of air quality for a pollutant in an area.
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    \2\ Section 169(4) of the CAA provides that the baseline 
concentration of a pollutant for a particular baseline area is 
generally the same air quality at the time of the first application 
for a PSD permit in the area.
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    For PSD baseline purposes, a baseline area for a particular 
pollutant emitted from a source includes the attainment or 
unclassifiable/attainment area in which the source is located as well 
as any other attainment or unclassifiable/attainment area in which the 
source's emissions of that pollutant are projected (by air quality 
modeling) to result in an ambient pollutant increase of at least 1 
[mu]g/m3 (annual average). See 40 CFR 51.166(b)(15)(i) and (ii). Under 
the EPA's existing regulations, the establishment of a baseline area 
for any PSD increment results from the submission of the first complete 
PSD permit application and is based on the location of the proposed 
source and its emissions impact on the area. Once the baseline area is 
established, subsequent PSD sources locating in that area need to 
consider that a portion of the available increment may have already 
been consumed by previous emissions increases. In general, the 
submittal date of the first complete PSD permit application in a 
particular area is the operative ``baseline date.'' \3\ On or before 
the date of the first complete PSD application, emissions generally are 
considered to be part of the baseline concentration, except for certain 
emissions from major stationary sources. Most emissions increases that 
occur after the baseline date will be counted toward the amount of 
increment consumed. Similarly, emissions decreases after the baseline 
date restore or expand the amount of increment that is available. See 
75 FR 64864. As described in the PM2.5 PSD Increment--SILs--
SMC Rule, pursuant to the authority under section 166(a) of the CAA the 
EPA promulgated numerical increments for PM2.5 as a new 
pollutant \4\ for which the NAAQS were established after August 7, 
1977,\5\ and derived 24-hour and annual PM2.5 increments for 
the three area classifications (Class I, II and III) using the 
``contingent safe harbor'' approach. See 75 FR 64864 at 64869 and table 
at 40 CFR 51.166(c)(1).
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    \3\ Baseline dates are pollutant specific. That is, a complete 
PSD application establishes the baseline date only for those 
regulated NSR pollutants that are projected to be emitted in 
significant amounts (as defined in the regulations) by the 
applicant's new source or modification. Thus, an area may have 
different baseline dates for different pollutants.
    \4\ The EPA generally characterized the PM2.5 NAAQS 
as a NAAQS for a new indicator of PM. The EPA did not replace the 
PM10 NAAQS with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. The EPA rather 
retained the annual and 24-hour NAAQS for PM10 as if 
PM2.5 was a new pollutant even though the EPA had already 
developed air quality criteria for PM generally. See 75 FR 64864 
(October 20, 2010).
    \5\ The EPA interprets 166(a) to authorize the EPA to promulgate 
pollutant-specific PSD regulations meeting the requirements of 
section 166(c) and 166(d) for any pollutant for which the EPA 
promulgates a NAAQS after 1977.
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    In addition to PSD increments for the PM2.5 NAAQS, the 
PM2.5 PSD Increment--SILs--SMC Rule amended the definition 
at 40 CFR 51.166 and 52.21 for ``major source baseline date'' and 
``minor source baseline date'' to establish the PM2.5 NAAQS 
specific dates (including trigger dates) associated with the 
implementation of PM2.5 PSD increments. See 75 FR 64864. In 
accordance with section 166(b) of the CAA, the EPA required the states 
to submit revised implementation plans adopting the PM2.5 
PSD increments to the EPA for approval within 21 months from 
promulgation of the final rule (by July 20, 2012). Each state was 
responsible for determining how increment consumption and the setting 
of the minor source baseline date for PM2.5 would occur 
under its own PSD program. Regardless of when a state begins to require 
PM2.5 increment analysis and how it chooses to set the 
PM2.5 minor source baseline date, the emissions from sources 
subject to PSD for PM2.5 for which construction commenced 
after October 20, 2010, (major source baseline date) consume the 
PM2.5 increment and therefore should be included in the 
increment analyses occurring after the minor source baseline date is 
established for an area under the state's revised PSD SIP program.
(b) What are PSD SILs and SMC?
    The EPA's PM2.5 PSD Increment--SILs--SMC Rule also 
established SILs and SMC for the PM2.5 NAAQS to address air 
quality modeling and monitoring provisions for fine particle pollution 
in areas protected by the PSD program. The SILs and SMC are numerical 
values that represent thresholds of insignificant, i.e., de minimis, 
modeled source impacts or monitored (ambient) concentrations, 
respectively. The de minimis principle is grounded in a decision 
described by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 
360 (D.C. Cir. 1980). In this case reviewing the EPA's 1978 PSD 
regulations, the court recognized that ``there is likely a basis for an 
implication of de minimis authority to provide exemption when the 
burdens of regulation yield a gain of trivial or no value.'' 636 F.2d 
at 360. The EPA established such values for PM2.5 in the 
PM2.5 PSD Increment--SILs--SMC rule to be used as screening 
tools by a major source subject to PSD to determine the subsequent 
level of analysis and data gathering required for a PSD permit 
application for emissions of PM2.5. See 75 FR 64864. As part 
of the response to comments in the PM2.5 PSD Increment--
SILs--SMC Rule final rulemaking, the EPA explained that the agency 
considers that the SILs and SMC used as de minimis thresholds for the 
various pollutants are useful tools that enable permitting authorities 
and PSD applicants to screen out ``insignificant'' activities; however, 
the fact remains that these values are not required by the Act as part 
of an approvable SIP program.
(c) SILs-SMC Litigation
    The PM2.5 SILs and SMC were subject to litigation before 
the U.S. Court of Appeals. (Sierra Club v. EPA, Case No. 10-1413, D.C. 
Circuit). In response to the litigation, the EPA filed a brief on April 
6, 2012, which contained a request that the Court vacate and remand to 
the EPA portions of two PSD PM2.5 rules (40 CFR 51.166 and 
40 CFR 52.21) addressing the PM2.5 SILs so that the EPA 
could voluntarily correct errors in those provisions. On January 22, 
2013, the Court granted the EPA's request for vacature and remand of 
the PM2.5 SILs provisions and also vacated parts of 40 CFR 
51.166 and 40 CFR 52.21 that established the PM2.5 SMC, 
finding that the EPA was precluded from using the PM2.5 SMC 
to exempt permit applicants from the statutory requirement to compile 
preconstruction monitoring data. As a result of the Court's decision, 
States should avoid including language in SIP revision submittals that 
are the same as or have similar effects as the vacated PM2.5 
SILs and SMC language in 40 CFR 51.166 and 52.21. As stated previously, 
neither the PM2.5 SILs nor the PM2.5 SMC are 
required elements of the PSD SIP for PM2.5.

[[Page 28904]]

    New Mexico's July 26, 2013, SIP revision submittal includes 
revisions to 20.11.61 NMAC that incorporate the amendments to the PSD 
regulations consistent with the changes in the 2010 PM2.5 
PSD Increment--SILs--SMC Rule. Consistent with the January 2013 
vacature and remand by the U.S. Court of Appeals for the D.C. Circuit 
(the D.C. Circuit), the SIP revision submittal also correctly excludes 
those amendments from the EPA's 2010 Rule that established the 
PM2.5 SILs and SMC. Therefore, the EPA finds that these 
revisions in the July 2013 submittal are consistent with the 2010 
rulemaking and subsequent Court decision and meet the requirements of 
section 110 and part C of the CAA.
iii. Summary of the EPA's 2012 PM2.5 NSR Implementation Rule
    On October 12, 2012, the EPA finalized amendments to its rules for 
the CAA NSR permitting program regarding the definition of ``regulated 
NSR pollutant.'' This rulemaking clarified when condensable particulate 
matter should be measured. The final rule continued to require that 
condensable particulate matter be included as part of the emissions 
measurements for regulation of PM2.5/PM10. As a 
result of the EPA's final 2012 NSR PM2.5 Rule, the 
inadvertent requirement that measurements of condensable particulate 
matter emissions be included as part of the measurement and regulation 
of ``particulate matter emissions'' was removed.
    New Mexico's July 26, 2013, SIP revision submittal includes a 
revision to the definition of ``regulated NSR pollutant.'' 
Specifically, the SIP revision revises this definition found at 
20.11.61.7(WW) NMAC to include the clarifying language related to the 
condensable particulate matter portion accounted for in 
PM2.5 and PM10 emissions. The EPA notes that as 
part of the July 2013 SIP revision submittal, New Mexico did not remove 
the requirement for condensable particulate matter emissions to be 
included in particulate matter emissions. Therefore, the definition of 
``regulated NSR pollutant'' at 20.11.61.7(WW) NMAC is more stringent 
than the federal definition. See 40 CFR 51.166(b)(49). The EPA finds 
that the revisions to the definition of ``regulated NSR pollutant'' in 
the July 26, 2013, submittal meet the federal requirements in that the 
definition is more stringent than the federal definition.
iv. Summary of the EPA's 2011 Fugitives Interim Rule
    On March 8, 2011, the EPA issued an interim rule to stay a December 
2008 rule known as the Fugitives Emissions Rule. The 2008 Rule 
established new provisions for how fugitive emissions should be treated 
for NSR permitting. The EPA's 2011 interim rule replaced the stay 
issued by the EPA on March 31, 2010, which inadvertently covered 
portions of the NSR permitting requirements that should not have been 
stayed. The 2011 rulemaking stayed the 2008 Fugitive Emissions Rule as 
originally intended and reverted the regulatory text back to the 
language that existed prior to those amendments, which the EPA is 
reconsidering in response to a 2009 Natural Resources Defense Council 
petition for reconsideration of the 2008 Fugitive Emissions Rule.
    New Mexico's July 26, 2013, SIP revision submittal includes 
revisions to 20.11.61 NMAC that incorporate the amendments to the PSD 
regulations consistent with the changes in the 2011 Fugitives Interim 
Rule. The EPA finds that these revisions in the July 2013 submittal are 
consistent with the 2011 rulemaking and meet the requirements of 
section 110 and part C of the CAA.
v. Summary of the the EPA's 2011 Biomass Deferral Rule
    On July 20, 2011, the EPA promulgated the Biomass Deferral Rule, 
which deferred, for a period of three years, the application of the PSD 
and title V permitting requirements to CO2 emissions from 
bioenergy and other biogenic stationary sources. See 76 FR 43490. 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).
    New Mexico's July 26, 2013, SIP revision submittal includes 
revisions to 20.11.61 NMAC that incorporate the 2011 Biomass Deferral 
Rule into the Albuquerque-Bernalillo County PSD program. However, as 
discussed in this proposed rulemaking, New Mexico's March 4, 2015, SIP 
Submittal contains revisions to update the PSD program to remove the 
biomass deferral, which was vacated in 2013. The EPA finds that the 
combined revisions from the July 2013 and March 2015 submittals are 
consistent with current PSD regulations with respect to the vacated 
Biogas Referral Rule and meet the requirements of section 110 and part 
C of the CAA.
vi. Summary of the the EPA's 2012 Tailoring Rule and GHG PALs Rule
    On June 3, 2010, the EPA issued a final rule, known as the 
Tailoring Rule, which phased in permitting requirements for GHG 
emissions from stationary sources under the CAA PSD and title V 
permitting programs (75 FR 31514). For Step 1 of the Tailoring Rule, 
which began on January 2, 2011, PSD or title V requirements applied to 
sources of GHG emissions only if the sources were subject to PSD or 
title V ``anyway'' due to their emissions of non-GHG pollutants. These 
sources are referred to as ``anyway sources.'' Step 2 of the Tailoring 
Rule, which began on July 1, 2011, applied the PSD and title V 
permitting requirements under the CAA to sources that were classified 
as major, and, thus, required to obtain a permit, based solely on their 
potential GHG emissions and to modifications of otherwise major sources 
that required a PSD permit because they increased only GHG above 
applicable levels in the EPA regulations.
    On July 12, 2012, the 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).\6\ 77 FR 41051. In the Tailoring Rule Step 3 
portion of this rule, the EPA decided against further phase in of the 
PSD and title V requirements to apply to sources emitting lower levels 
of greenhouse gas emissions. Thus, the thresholds for determining PSD 
applicability based on emission of greenhouse gases remained the same 
as established in Step 2 of the Tailoring Rule. The Step 3 portions of 
the EPA's July 12, 2012, final rule are not relevant to today's 
proposed action on the New Mexico SIP revision.
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    \6\ For a complete history of the EPA's rulemakings related to 
GHG emissions please review the following final actions:
    ``Endangerment and Cause or Contribute Findings for Greenhouse 
Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 66496 
(December 15, 2009).
    ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    ``Prevention of Significant Deterioration and Title V Greenhouse 
Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 2010).
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    The GHG PALs portion of the July 12, 2012, final rule promulgated 
revisions to the EPA regulations under 40 CFR part 52 for establishing 
PALs for GHG emissions. For a full discussion of the EPA's rationale 
for the GHG PALs provisions, see the notice of final rulemaking at 77 
FR 41051. A PAL

[[Page 28905]]

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 the EPA revised 
the PAL regulations to allow for GHG PALs to be established on a carbon 
dioxide equivalent (CO2e) basis as well. See 77 FR 41052. 
The EPA finalized these revisions in an effort to streamline federal 
and SIP PSD permitting programs by allowing sources and permitting 
authorities to address GHGs using a PAL in a manner similar to the use 
of PALs for non-GHG pollutants. See 77 FR 41051, 41052.

II. The EPA's Evaluation

    New Mexico's July 26, 2013, and March 4, 2015, SIP revision 
submittals include amendments to the Albuquerque-Bernalillo County PSD 
program found in 20.11.61 NMAC to incorporate changes to federal PSD 
provisions resulting from the following EPA rulemakings: 2008 NSR 
PM2.5 Rule, 2010 PM2.5 PSD Increment--SILs--SMC 
Rule, 2012 PM2.5 PSD Implementation Rule, 2011 Fugitives 
Interim Rule, 2011 Biomass Deferral Rule, and 2012 GHG Tailoring Rule 
Step 3 and GHG PALs Rule. The July 26, 2013, SIP revisions also 
contains additional non-substantive revisions to 20.11.61 NMAC 
including formatting revisions, inclusion of acronyms, and rewording of 
provisions to make this Part consistent with other provisions of the 
NMAC.
    On June 23, 2014, the United States Supreme Court, in Utility Air 
Regulatory Group v. Environmental Protection Agency,\7\ issued a 
decision addressing the application of PSD permitting requirements to 
GHG emissions. The Supreme Court said that the EPA may not treat GHGs 
as an air pollutant for purposes of determining whether a source is a 
major source (or modification thereof) required to obtain a PSD permit. 
The Court also said that the EPA could continue to require that PSD 
permits, otherwise required based on emissions of pollutants other than 
GHGs, contain limitations on GHG emissions based on the application of 
Best Available Control Technology (BACT). The Supreme Court decision 
effectively upheld PSD permitting requirements for GHG emissions under 
Step 1 of the Tailoring Rule for ``anyway sources'' and invalidated PSD 
permitting requirements for Step 2 sources.
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    \7\ 134 S.Ct. 2427 (2014).
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    In accordance with the Supreme Court decision, on April 10, 2015, 
the D.C. Circuit issued an amended judgment vacating the regulations 
that implemented Step 2 of the Tailoring Rule, but not the regulations 
that implement Step 1 of the Tailoring Rule. A copy of the judgment is 
included in the docket to this rulemaking.\8\ The amended judgment 
preserves, without the need for additional rulemaking by the EPA, the 
application of the Best Available Control Technology (BACT) requirement 
to GHG emissions from sources that are required to obtain a PSD permit 
based on emissions of pollutants other than GHGs (``anyway'' sources). 
The D.C. Circuit's judgment vacated the regulations at issue in the 
litigation, including 40 CFR 51.166(b)(48)(v), ``to the extent they 
require a stationary source to obtain a PSD permit if greenhouse gases 
are the only pollutant (i) that the source emits or has the potential 
to emit above the applicable major source thresholds, or (ii) for which 
there is a significant emissions increase from a modification.''
---------------------------------------------------------------------------

    \8\ Original case is Coalition for Responsible Regulation v. 
EPA, D.C. Cir., No. 09-1322, 06/26/20, judgment entered for No. 09-
1322 on 04/10/2015.
---------------------------------------------------------------------------

    The EPA may need to take additional steps to revise federal PSD 
rules in light of the Supreme Court decision and recent D.C. Circuit 
judgment. In addition, the EPA anticipates that many states will revise 
their existing SIP-approved PSD programs. The EPA is not expecting 
states to have revised their existing PSD program regulations at this 
juncture. However, the EPA is evaluating PSD program submissions to 
assure that the state's program correctly addresses GHGs consistent 
with both decisions.
    New Mexico's existing approved SIP for the Albuquerque-Bernalillo 
County PSD program contains the greenhouse gas permitting requirements 
required under 40 CFR 51.166, as amended in the Tailoring Rule. As a 
result, the Albuquerque-Bernalillo County's SIP-approved PSD permitting 
program continues to require that PSD permits (otherwise required based 
on emissions of pollutants other than GHGs) contain limitations on GHG 
emissions based on the application of BACT when sources emit or 
increase greenhouse gases in the amount of 75,000 tons per year (tpy), 
measured as carbon dioxide equivalent. Although the SIP-approved 
Albuquerque-Bernalillo County PSD permitting program may also currently 
contain provisions that are no longer necessary in light of the D.C. 
Circuit's judgment or the Supreme Court decision, this does not prevent 
the EPA from approving the submission addressed in this rule. New 
Mexico's July 26, 2013, and March 4, 2015, SIP submissions do not add 
any greenhouse gas permitting requirements that are inconsistent either 
decision.
    Likewise, this revision does add to the New Mexico SIP for the 
Albuquerque-Bernalillo County PSD program elements of the EPA's July 
12, 2012, rule implementing Step 3 of the phase in of PSD permitting 
requirements for greenhouse gases described in the Tailoring Rule, 
which became effective on August 13, 2012. Specifically, the 
incorporation of the Step 3 rule provisions will allow GHG-emitting 
sources to obtain PALs for their GHG emissions on a CO2e 
basis. The GHG PAL provisions, as currently written, include some 
provisions that may no longer be appropriate in light of both the D.C. 
Circuit's judgment and the Supreme Court decision. Since the Supreme 
Court has determined that sources and modifications may not be defined 
as ``major'' solely on the basis of the level of greenhouse gases 
emitted or increased, PALs for greenhouse gases may no longer have 
value in some situations where a source might have triggered PSD based 
on greenhouse gas emissions alone. However, PALs for GHGs may still 
have a role to play in determining whether a modification that triggers 
PSD for a pollutant other than greenhouse gases should also be subject 
to BACT for greenhouse gases. These provisions, like the other GHG 
provisions discussed previously, may be revised at some future time. 
However, these provisions do not add new requirements for sources or 
modifications that only emit or increase greenhouse gases above the 
major source threshold or the 75,000 tpy greenhouse gas level in 
section 52.21(b)(49)(iv). Rather, the PALs provisions provide increased 
flexibility to sources that wish to address their GHG emissions in a 
PAL. Since this flexibility may still be valuable to sources in at 
least one context described above, we believe that it is appropriate to 
approve these provisions into the New Mexico SIP at this juncture.
    As discussed in this rulemaking and the accompanying TSD, the EPA 
finds that the revisions to the Albuquerque-Bernalillo County PSD 
program contained in the July 26, 2013, and March 4, 2015, SIP revision 
submittals are consistent with the aforementioned the EPA rulemakings 
and meet the associated federal requirements. The

[[Page 28906]]

EPA therefore proposes to find the proposed SIP revisions to be fully 
approvable.

III. Proposed Action

    The EPA is proposing to approve revisions to the Albuquerque-
Bernalillo County PSD program that were submitted by New Mexico as a 
SIP revision on July 26, 2013, and March 4, 2015. We are proposing 
approval of the portions of the July 26, 2013, and March 4, 2015, 
submittals that revised the following sections under 20.11.61:
     20.11.61.2 NMAC--Scope,
     20.11.61.5 NMAC--Effective Date,
     20.11.61.6 NMAC--Objective,
     20.11.61.7 NMAC--Definitions,
     20.11.61.10 NMAC--Documents,
     20.11.61.11 NMAC--Applicability,
     20.11.61.12 NMAC--Obligations of Owners or Operators of 
Sources,
     20.11.61.14 NMAC--Control Technology Review and Innovative 
Control Technology,
     20.11.61.15 NMAC--Ambient Impact Requirements,
     20.11.61.18 NMAC--Air Quality Analysis and Monitoring 
Requirements,
     20.11.61.20 NMAC--Actuals Plantwide Applicability Limits 
(PALs),
     20.11.61.23 NMAC--Exclusions from Increment Consumption,
     20.11.61.24 NMAC--Sources Impacting Federal Class I Areas-
Additional Requirements,
     20.11.61.27 NMAC--Table 2-Significant Emission Rates,
     20.11.61.29 NMAC--Table 4-Allowable PSD Increments, and
     20.11.61.30 NMAC--Table 5-Maximum Allowable Increases for 
Class I Variances.
    The EPA has determined that these revisions to the New Mexico SIP's 
Albuquerque-Bernalillo County PSD program are approvable because the 
submitted rules are adopted and submitted in accordance with the CAA 
and are consistent with the EPA regulations regarding PSD permitting. 
The EPA is proposing this action under section 110 and part C of the 
Act.
    The EPA is severing from our proposed approval action the revisions 
to 20.11.60 NMAC submitted on July 26, 2013, which are revisions to the 
Albuquerque-Bernalillo County NNSR Program and will be addressed in a 
separate action.

IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the New Mexico regulations discussed in section III. of this 
preamble. The EPA has made, and will continue to make, these documents 
generally available electronically through www.regulations.gov and/or 
in hard copy at the appropriate EPA office (see the ADDRESSES section 
of this preamble for more information).

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 Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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 the 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 is not proposed to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that tribe has jurisdiction. In those areas of Indian 
country, the proposed rule does not have tribal implications and will 
not impose substantial direct costs on tribal governments or preempt 
tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).

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.

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

    Dated: April 24, 2015.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2015-11780 Filed 5-19-15; 8:45 am]
 BILLING CODE 6560-50-P