[Federal Register Volume 85, Number 11 (Thursday, January 16, 2020)]
[Rules and Regulations]
[Pages 2648-2654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00286]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2018-0177; FRL-10003-44-Region 6]


Air Plan Approval; New Mexico; City of Albuquerque-Bernalillo 
County; New Source Review (NSR) Preconstruction Permitting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving revisions to the 
applicable New Source Review (NSR) State Implementation Plan (SIP) for 
the City of Albuquerque-Bernalillo County submitted on January 18, 
2018, that includes supplemental information provided on April 30, 
2019. The EPA is approving newly adopted Minor New Source Review (MNSR) 
permitting regulations which waive specific permitting requirements for 
certain sources and create new procedures for authorizing construction 
and modification of these sources.

DATES: This rule is effective on February 18, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2018-0177. All documents in the docket are 
listed on the http://www.regulations.gov website. 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 EPA Region 6 Office, 1201 Elm Street, Dallas, Texas 
75270.

FOR FURTHER INFORMATION CONTACT: Rick Barrett, EPA Region 6 Office, Air 
Permits Section, 1201 Elm Street, Dallas, TX 75270, 214-665-7227, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Rick Barrett or Mr. Bill Deese at 214-665-
7253.

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

I. Background

    The background for this action is discussed in detail in our June 
5, 2019 proposal (84 FR 26057). In that document we proposed to approve 
revisions to the City of Albuquerque-Bernalillo County SIP submitted on 
January 18, 2018, including supplemental information provided on April 
30, 2019. The revisions addressed in our proposal included newly 
adopted Minor New Source Review (MNSR) permitting regulations which 
waive specific permitting requirements for certain sources and create 
new procedures for authorizing construction and modification of these 
sources. The revisions created procedures which allow owners and 
operators of eligible gasoline dispensing facilities (GDF), and 
emergency stationary reciprocating

[[Page 2649]]

internal combustion engines (ES-RICE), to apply for an Air Quality 
Notification (AQN) rather than a construction permit. The SIP action 
proposes no change in emission levels or controls, and will not result 
in an increase of emissions or ambient concentration of any compounds.
    We received comments on the proposal from several commenters. The 
full text of the comment letters received during the public comment 
period, which closed on July 5, 2019, is included in the publicly 
posted docket associated with this action at www.regulations.gov. The 
EPA provides a summary of the comments received and corresponding 
responses below.\1\
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    \1\ Note that comments are grouped together into categories to 
assist the reader.
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II. Responses to Comments

    Comment: Several commenters stated that before any decision is made 
on the proposal, the City of Albuquerque Environmental Health 
Department (EHD) should come to their communities and give the 
residents of Albuquerque and Unincorporated Bernalillo County, 
neighborhood associations, coalitions, and interested persons an 
opportunity to learn about the proposal, participate in a discussion, 
get questions answered, and express concerns in a public meeting forum 
in English and Spanish.
    They further stated that the EHD did not notify the residents of 
Albuquerque and Unincorporated Bernalillo County of their proposal; did 
not conduct any public meetings with neighborhood associations, 
coalitions or the public; and did not post on their website their 
proposal to EPA to approve revisions to the applicable New Source 
Review (NSR) State Implementation Plan (SIP) for the City of 
Albuquerque-Bernalillo County.
    Response: EPA regulations require that states must provide the 
public with notice of plans or plan revisions, opportunity to submit 
written comments, and either automatically hold a public hearing on the 
proposed plan or revision or provide the public with the opportunity to 
request such a public hearing. See 40 CFR 51.102. Notice should include 
making the proposed plan or revision available for public inspection in 
at least one location in each region to which it will apply. See 40 CFR 
51.102(d)(2). A notice of public hearing to consider the EHD Petition 
for rulemaking was published on September 26, 2017, in the New Mexico 
Register and in the Albuquerque Journal on the same day. See Attachment 
C, 4. Pleadings filed with Air Board. The notice met all the applicable 
Federal regulations. It solicited written comments and contained the 
date, place, and time of the hearing. The notice also stated that the 
public could obtain the reasoning for EHD's proposed rulemaking, the 
rulemaking record of the EHD, and drafts of the proposed regulatory 
changes on EHD's website.\2\ Additionally, the notice, which was 
published in the New Mexico Register and the Albuquerque Journal, 
provided a link to the agenda for the hearing. As noted in the public 
notices published in the two local newspapers, on November 8, 2017, a 
public hearing was held in accordance with State and local law and the 
applicable public hearing requirements. EHD considered all the comments 
it received and discussed these in its hearing testimony. Public 
comments were made via letters, emails and in testimony prior to, and 
during, the November 8, 2017, hearing. See Attachment C, 2. Public 
Comment, and Attachment C, 4. Pleadings filed with Air Board.
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    \2\ See http://www.cabq.gov/airquality/air-quality-control-board, at the link entitled ``Library of current Rulemaking 
Petitions and all related documents.''
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    Furthermore, on May 30, 2017, before the formal public notification 
discussed above, EHD sent copies of a draft of the proposed regulations 
to Albuquerque and Bernalillo County neighborhood associations; persons 
holding air quality permits for GDF or ES-RICE; and members of the 
community on the email list-serve of the Air Board.\3\ EHD's cover 
letter invited these stakeholders to two public comment meetings held 
on June 28, 2017, one held in the afternoon and one in the evening. 
Four people attended the afternoon meeting. No one attended the evening 
meeting.\4\ EHD received four written comments on its draft 
regulations. An announcement of the petition filing was distributed by 
email to the list-serve of the Air Board on August 29, 2017. This early 
engagement is not required by the EPA rules.
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    \3\ See Attachment C, 4. Pleadings filed with Air Board.
    \4\ See Attachment C, 4. Pleadings filed with Air Board.
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    Under these circumstances we do not agree with the commenters' 
assertion that EHD did not notify the residents of Albuquerque and 
Unincorporated Bernalillo County of their proposal, and we do not agree 
that we should not approve the plan revisions for a purported lack of 
adequate notice or opportunity to comment.
    Comment: Several commenters stated that they want EPA to disapprove 
the SIP revision because it does not respect the basic human rights of 
residents of Albuquerque to be treated with fairness, decency, and 
respect, nor their basic right to due process in the decision-making 
that affects their communities. They requested that EPA remand the 
proposed regulations back to Albuquerque-Bernalillo County Air Quality 
Control Board to amend its request in order to address public 
participation, public health, the locating of multiple source emitters 
close to each other, and address appeal rights.
    Additionally, several commenters stated that public participation 
should not be considered a burden and expressed concern about the long 
term physical and emotional health effects of the proposal, especially 
for the more vulnerable members of the population--the elderly and 
children. Commenters claimed that EPA's position is that since 
Albuquerque is in compliance with the National Ambient Air Quality 
Standards (NAAQS), public participation in Minor New Source Review 
process is not necessary, stating that such rationale is not respectful 
of the community living in this area that is subjected to the worst air 
quality in the city and does not take into consideration environmental 
justice principles. They further allege that both EPA and EHD failed to 
take public health into consideration, and as a consequence, the public 
will be affected by emergency room visit costs, and long-term health 
implications that affect school and work attendance.
    Response: The comments that pertain to public participation have 
been addressed in a response above. In short, the EPA does not agree 
that there was a failure to comply with the public notice and comment-
related provisions of the Act or the relevant EPA regulations and does 
not agree that the revisions should be disapproved because of the 
comments relating to an asserted lack of public participation. 
Regarding the commenters' other requests that EPA deny or remand the 
EHD's SIP revision, EPA is required to approve a SIP revision if it 
meets all the applicable Federal requirements. See CAA 110(k)(3). As 
noted in our proposal, in addition to the preconstruction permitting 
program requirements of CAA section 110(a)(2)(C) and 40 CFR 51.160 
through 51.164, our evaluation must ensure that the proposed plan 
revisions comply with section 110(l) of the CAA, which states that the 
EPA shall not approve a revision of the SIP if it would interfere with 
any applicable requirement concerning attainment of the NAAQS, 
reasonable further progress, or any other applicable requirement of the 
Act. Thus,

[[Page 2650]]

under CAA section 110(l), the proposed MNSR SIP revision must not 
interfere with attainment, reasonable further progress, or any other 
applicable requirement of the Act. The commenters misstate and 
oversimplify EPA's position. It is not our position that public 
participation in the Minor New Source Review process is not necessary 
because Albuquerque is in compliance with the NAAQS. EPA's statutory 
responsibilities in reviewing a SIP are to ensure it meets all the 
applicable requirements of the Act and the corresponding Federal 
regulations. CAA section 110(a)(2)(C) requires regulation of the 
modification or construction of any stationary source within the areas 
covered by the SIP as necessary to assure that the NAAQS are achieved. 
The minor NSR regulations found at 40 CFR 51.160 through 51.164 specify 
the legally enforceable procedures and requirements which are 
applicable to state minor NSR programs. Federal regulations allow 
states to identify the types and sizes of facilities, buildings, 
structures, or installations which will be subject to review under the 
minor NSR program. See 40 CFR 51.160(e). To determine whether a 
specific source type can be exempted from complying with a state's 
approved minor NSR program, EPA must examine whether the state has 
provided an adequate basis that the exempt emissions do not need to be 
reviewed to ensure attainment and maintenance of the NAAQS in the 
particular geographic areas covered by the program because they are 
inconsequential to attainment or maintenance, considering the 
particular air quality concerns in such areas. See 40 CFE 51.160(a) and 
(e) and CAA section 110(l). Additionally, our evaluation must ensure 
that the submittal complies with section 110(l) of the CAA before it 
can be approved into the SIP.
    Similar to the exemptions provided for in EPA's Tribal NSR Rule, 
EHD seeks to exempt a small percentage of the total emissions emitted 
within its jurisdiction from minor NSR review. EPA estimates that GDFs 
are responsible for only 0.28% of the total emissions of volatile 
organic compounds (VOC) in Albuquerque-Bernalillo County. This 
percentage is not anticipated to change with the approval of the SIP 
revision. VOC emissions from GDF and ES-RICE are federally regulated by 
the National Emissions Standards for Hazardous Air Pollutants (NESHAP) 
for GDF found in 40 CFR part 63, subpart CCCCCC; and by the NESHAP for 
ES-RICE found in 40 CFR part 63, subpart ZZZZ. State regulatory 
requirements for GDF and ES-RICE emissions of VOC are found at State 
regulation 20.11.65 NMAC--Volatile Organic Compounds. These Federal and 
State regulations impose emission limitations, management practices, 
and testing and monitoring requirements in order to demonstrate 
compliance with those requirements.
    For GDF with throughput of more than 100,000 gallons per month, the 
applicable Federal regulation (40 CFR part 63, subpart CCCCCC) reduces 
emissions by about 90% by requiring the use of Stage I vapor control. 
While smaller GDF are not required by Federal regulations to use Stage 
I vapor control, the Air Board's regulations (20.11.65 NMAC--Volatile 
Organic Compounds) requires most GDF with underground storage tanks 
larger than 3000 gallons to have Stage I vapor control. This captures 
many of the GDF with throughputs below 100,000 gallons per month. As a 
result, between Federal and local regulations, most GDF have pollution 
controls that reduce their emissions by about 90%. The only ones that 
do not have these controls are the very small GDF (typically small 
fleet owners) with low throughput and associated limited potential to 
emit pollutants which are hazardous to human health and wellbeing.
    Regarding ES-RICE, the pollutants which are emitted from ES-RICE 
and may be relevant to NAAQS attainment are: ozone, NO2, PM, 
CO and SO2. There are approximately 445 ES-RICEs in the 
County, and the applicable regulations only permit them to operate 
during emergencies, other than the few hours which are necessary each 
year to test and maintain the engines. See Attachment C, 4. Pleadings 
filed with Air Board. Because these emergency generators operate very 
few hours a year, their emissions are very low. When applying EHD's 
actual emission inventory estimates of 24 hours per year of operation, 
each ES-RICE will only emit about 0.26 tons per year (tpy) of combined 
pollutants.\5\
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    \5\ When using an assumed maximum of 500 hours of operation per 
year for each ES-RICE, EPA has previously concluded that a 500 hours 
per year limit would result in combined pollutant (NO2, 
PM, CO and SO2) emissions of 5.5 tons per year or less 
from each ES-RICE. See 78 FR 15296 (March 11, 2013).
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    Emissions from these source categories are low enough that it is 
unlikely that such emissions would have a meaningful impact on 
continued NAAQS attainment. Moreover, the SIP revisions do not change 
or eliminate any of the controls required by NESHAP, and the approval 
of these SIP revisions does not obviate the need for GDF and ES-RICE 
sources to comply with all applicable NESHAP requirements--including 
emissions limitations. See Attachment C, 4. Pleadings filed with Air 
Board.
    Concerning the public health considerations mentioned by the 
commenters, EPA was required by the CAA to promulgate NAAQS for 
pollutants which are considered harmful to public health. The CAA 
identifies two types of NAAQS--primary and secondary. The primary 
standards provide public health protection, including the protection of 
sensitive populations such as asthmatics, children, and the elderly. 
All areas within EHD's jurisdiction are currently in attainment for all 
NAAQS. See Attachment C, 4. Pleadings filed with Air Board, and 82 FR 
29421 (June 29, 2017). The approval of this SIP revision will not cause 
any degradation of air quality, and EHD was legally obligated to 
demonstrate this fact to the EPA. Appendix V to 40 CFR part 51 requires 
that EHD submit to the EPA a demonstration that will show 
noninterference with the attainment of the NAAQS under Section 110(1) 
of the Clean Air Act. The Section 110(l) demonstration submitted to EPA 
showed that there will be no degradation of air quality and that 
Bernalillo County will continue its attainment status of the NAAQS to 
protect public health. See our proposal, 84 FR 26057, section III.C.
    In their SIP submittal, EHD presented NAAQS monitoring data for 
each pollutant emitted by GDF and ES-RICE showing the concentration of 
each in the ambient air in the County compared to the relevant Federal 
standard. The data show the County area has been in attainment for all 
the NAAQS for at least the past ten years and has not been in violation 
of any NAAQS since 1996. The County has maintained attainment for the 
NAAQS the entire time during which Federal NESHAP emission requirements 
for these source categories have been in effect. EHD's proposal will 
not change those requirements, and thus, would not result in an 
increase in emissions. Review of the EHD NAAQS monitoring data showed 
that concentrations of most pollutants have trended downward or 
remained steady over at least the last ten years. These trends support 
that the air quality is improving overall in the County. See our 
proposal, 84 FR 26057, section III. C., and Attachment C, 4. Pleadings 
filed with Air Board. Therefore, we find that EHD's proposal will not 
interfere with attainment of any NAAQS. See Attachment C, 4. Pleadings 
filed with Air Board.

[[Page 2651]]

    Based on these historical trends and supporting air quality 
monitoring data documenting air quality improvements throughout the 
State, we believe the proposed Minor NSR SIP revision meets the 
requirements of CAA section 110(l), and that the implementation of 
these rules will not interfere with any applicable requirement 
concerning attainment, reasonable further progress, maintaining PSD 
increment, or any other applicable requirement of the CAA.
    Although qualifying GDFs and ES-RICEs will now be exempt from the 
Minor NSR program, EHD will post on its website all Air Quality 
Notifications (AQN) issued during the previous month and all those 
issued that are currently active. See 20.11.39.15 NMAC. This 
information will include the name and location of each facility. It 
will also include information enabling members of the public to contact 
EHD about any AQN it has issued. Thus, the public will have access to 
the information for any GDF or ES-RICE that EHD has issued an AQN. 
Comments regarding the locating of multiple source emitters close to 
each other are addressed in the last response below.
    Comment: Commenters stated that this proposed change is the latest 
effort to hinder public participation and further stated that perhaps 
informing the public, diligent review, and doing the job that taxpayers 
have paid staff at the Albuquerque Environmental Health Department to 
do is too burdensome.
    Response: As discussed, above, in response to other comments, the 
EPA is required to approve SIP revisions that meet all applicable 
requirements, and the EPA has determined that these revisions meet such 
requirements. As also discussed, above, the EPA has determined that the 
submission reflects satisfaction of the public participation-related 
provisions of the Act and EPA's relevant regulations. In any event, 
regarding the comments which stated that the EHD approved the rule in 
order to relieve its administrative burden, EHD indicated that their 
proposed regulations are needed to allow EHD permitting staff to focus 
on permitting of larger sources with more significant air quality 
impacts, for which the applicable regulatory scheme provides more 
discretion and requires more technical judgment than the regulations 
that apply to GDF and ES-RICE. EHD also stated that the process 
associated with GDF permits has caused significant opportunity costs 
for the EHD that are not justified based on the amount of emissions 
produced by GDF. See Attachment C, 4. Pleadings filed with Air Board.
    The EHD explained that GDF and ES-RICE represent a minimal 
potential contribution of pollutants to local air quality compared to 
emissions from other sources. Their experience has shown that a 
majority of permitting staff time has been devoted to managing the 
process required by existing Part 41 (11-20-41) for permit applications 
for these less significant contributors. EHD said that about 80% of 
their permit staff resources are spent in permitting these two source 
categories and devoting the majority of an air quality agency's 
permitting resources to sources with minimal impact on air quality is 
not a wise use of resources. EHD has determined that this imbalance in 
resource allocation does not serve the public interest because it 
distracts EHD from a focus on larger facilities with more potential to 
impact air quality, and, as explained above, EPA is required to approve 
all SIP revisions that meet the applicable requirements.
    Comment: Some commenters stated that the proposed rule does not 
require air dispersion modeling, referring to a statement in EHD's 
proposal that ``the department shall not require any part 39 source to 
submit air dispersion modeling with its AQN application''.
    Response: As noted, above, in response to other comments, VOC 
emissions from GDF and ES-RICE are inconsequential. Neither GDF nor ES-
RICE require air quality dispersion modeling. GDFs emit VOCs in 
quantities which do not require modeling because their VOC emissions 
are less than the EHD minor NSR threshold level of 10 lbs/hr or 25 tpy. 
Their VOC emissions are modeled county-wide as an ozone component to 
determine whether they are in compliance with the ozone NAAQS.
    ES-RICEs do not require modeling because of their infrequent and 
unpredictable hours of operation. Air quality dispersion modeling is 
done to predict the impact of expected emissions. The operation of an 
emergency generator is inherently unpredictable because it operates 
only during emergencies except for the few hours an engine must be 
operated periodically to maintain the engine's functionality. Thus, the 
necessary input to a model (the expected emissions) cannot be 
accurately provided to the modeler. Thus, modeling is not useful for 
emergency engine operation.
    Recently, the EHD entered into a new contract with Sonoma 
Technology, Inc. (STI) to prepare the Albuquerque/Bernalillo County 
Ground-Level Ozone Photochemical Modeling and Analysis. This modeling 
study will emphasize ozone source contribution analysis to: Identify 
source contributions from mobile, industrial/stationary sources, and 
biogenic emissions; evaluate transport (international, interstate, and 
intrastate) versus local emissions contributions; evaluate events 
versus local emissions contributions to ozone; conduct VOC/NOx 
sensitivity analysis of ozone levels in Albuquerque-Bernalillo; and 
address other scenarios. This updated modeling will give EHD the most 
recent scientific analysis based on the most recent air quality 
information with which to determine what control strategies, if any, 
might be appropriate to protect Albuquerque-Bernalillo County 
attainment with the new 2015 ozone standard.
    Comment: One commenter stated that they oppose approval of the SIP 
revision submitted by the EHD which waives permitting requirements for 
GDF because the EHD did not provide adequate justification for its 
request in 2017. The commenter alleges that EPA mischaracterizes the 
NAAQS ozone data as trending downward when the values appear to 
fluctuate. The commenter further stated that it is possible that the 
ozone data for 2017 and 2018 would show increases, with levels 
exhibiting a cyclic pattern and the same could be said for nitrogen 
dioxide. The commenter stated that there have been at least two years 
of particulate matter (PM10) violations within the last 10 
years, and that the most recent (2016) finding for sulphur dioxide 
shows a secondary violation. Further, the commenter claimed that the 
EPA staff recommendation for approval is not supported by adequate 
evidence.
    Response: We do not agree with the commenter that the EHD did not 
provide adequate justification for its proposal request. As explained 
above, in order to determine whether a specific source type can be 
exempted from complying with a state's approved minor NSR program, EPA 
must examine whether the state has provided an adequate basis that the 
exempt emissions do not need to be reviewed to ensure attainment and 
maintenance of the NAAQS in the particular geographic areas covered by 
the program because they are inconsequential to attainment or 
maintenance, considering the particular air quality concerns in such 
areas. GDF and ES-RICE make up 62.2% of the 1088 authorized stationary 
sources in Albuquerque-Bernalillo County. See Attachment C, 4. 
Pleadings filed with Air Board. As we noted in our proposed approval, 
the only pollutants emitted from GDFs are VOC. The VOC emitted from 
GDFs account for only about 0.28% of the VOC in the entire County. Each 
ES-RICE only emits about

[[Page 2652]]

0.26 tpy of VOC, NO2, PM, CO and SO2 combined. 
Therefore, these sources generate emissions that are inconsequential to 
the area's ability to attain the NAAQS.
    As noted, above, in response to other comments, a majority of EHD 
permitting staff time is spent on permits for GDF and ES-RICE although, 
relatively, they contribute very little to overall air pollution, and 
EHD determined that devoting most of its time to sources that have an 
inconsequential impact on air quality is not an effective use of public 
resources. See Attachment C, 4. Pleadings filed with Air Board. 
Further, GDF or ES-RICE which are located at a major source, or at a 
facility which requires an air quality construction permit because of 
other activities, would not be eligible for an AQN.
    The SIP revision imposes the same air quality control requirements 
on GDF and ES-RICE as is currently applied through issuance of 
individualized permits and contains compliance mechanisms to assure 
that enforcement actions can be brought against owners or operators of 
these sources which receive an AQN. See Attachment C, 4. Pleadings 
filed with Air Board. EHD's proposal will improve EHD's permitting 
process by allowing it to dedicate more time to its larger and more 
complex air quality sources where more discretion and technical 
judgment are required. EHD's proposal does not result in any changes to 
the existing substantive air quality requirements for GDF and ES-RICE 
that are governed by NESHAP. See Attachment C, 4. Pleadings filed with 
Air Board. As explained in a response above, the SIP revision meets all 
Federal requirements for minor new source review and the requirements 
of section 110(l) of the Clean Air Act.
    We disagree that we mischaracterized the NAAQS ozone data. As we 
discussed in our proposed approval, compliance with the 8-hour ozone 
standard has improved county-wide with ozone pollutant concentrations 
trending downward since the late 1980's. See EPA's Air Quality System 
(AQS) database. As shown on Table 1 in the proposal, the ozone 
concentration has declined overall from 0.073 ppm in 2006 to 0.065 ppm 
in 2016. See our proposal, 84 FR 26057, section III.C., page 26060. 
Further, local ambient ozone levels have been in decline since the 
2010-2012 design value assessment period, and ozone concentrations 
since 2006 have remained below the Federal standard in effect at the 
time. EPA has amended the ozone NAAQS over time, lowering the 
concentration necessary for attainment. In 1997, EPA set the 
concentration at 0.084 parts per million. In 2008, EPA changed this to 
0.075 parts per million. In 2015, EPA changed it again to 0.070 parts 
per million. Albuquerque and Bernalillo County have remained in 
continuous compliance with each new standard promulgated by EPA, and 
continue to be in compliance for 2017 and 2018. See https://www.epa.gov/air-trends/air-quality-design-values.
    With regard to Nitrogen Dioxide (NO2) levels, compliance 
with the 1-Year NO2 and 1-hour NO2 standards has 
improved county-wide with NO2 pollutant concentrations 
trending downward since the late 1990's. The NO2 levels have 
remained relatively stable for the last decade overall for both the 1-
hour and annual standards. As shown on Table 2 in the proposal, the 
NO2 concentration has declined overall from 15.4 parts per 
billion (ppb) in 2006 to 10.4 ppb in 2016. At no time in that period 
have levels exceeded either the 1-hour or annual standard. Rather, 
levels have consistently remained well below the ambient air 
concentrations specified by the standard of 53 ppb. Furthermore, 
ambient NO2 levels have been in decline since the 2011-2012 
design value assessment period, and NO2 concentrations since 
2006 have remained well below the Federal standard in effect. 
NO2 data from any years post-2016 were not yet available 
when the EHD proposed regulations were finalized.
    We disagree that there have been at least two years of particulate 
matter (PM10) violations within the past 10 years. The 
PM10 standard is not expressed as a simple concentration. 
Instead, EPA set a 24-hour concentration of 150 micrograms per cubic 
meter (mg/m\3\) and then established that the standard would be 
attained if the number of days per calendar year with a 24-hour average 
concentration above 150 mg/m\3\ is equal to or less than one when 
averaged over three calendar years. The two readings greater than 150 
mg/m\3\, when averaged over three calendar years each, are below the 
standard of 150 mg/m\3\. As shown in Table 4, PM10 levels in 
the County area (as measured by the second highest 24-hour average per 
year) have fluctuated between 102 mg/m\3\ and 153 mg/m\3\ over the last 
decade. Also, the overall trend over the last decade is relatively 
stable and has been below the standard of 150 mg/m\3\ on average. 
Albuquerque and Bernalillo County have remained in attainment for the 
PM10 standard for the entire period from 2006 to 2016 and 
have never been designated as nonattainment prior to that period, 
despite the dusty desert environment in which the city and county are 
situated. See Attachment C, 4. Pleadings filed with Air Board.
    We disagree that the most recent (2016) design value for the sulfur 
dioxide (SO2) level shows a secondary violation. Table 6 in 
our proposed approval shows SO2 design values and how they 
compare to the 1-hour primary NAAQS standard, not the 3-hour secondary 
standard. The maximum permissible concentration under the 1-hour 
primary standard is 75 parts per billion (ppb). The maximum permissible 
concentration under the 3-hour secondary NAAQS standard is 0.5 parts 
per million (ppm). As the design value is only 6 ppb for the 1-hour 
NAAQS for 2016 and the previous 3 years are only 5 ppb each, the 
SO2 design values are well below any violation of the 
primary standard of 75 ppb or the secondary standard of .5 ppm. Note 
that on Table 6 in our proposal, the design value for each year is 
actually measured in ppb, not in mg/m\3\ as shown.
    Comment: Some commenters stated that there is a failure to assess 
the effect of the recently changed zoning and land use ordinances of 
the City of Albuquerque on where, and how many, gasoline stations may 
be located near and within residential areas.
    Response: Neither the CAA nor the corresponding Federal regulations 
specifically require that EPA assess the effect of local zoning and 
land use ordinances when determining whether to approve a minor NSR SIP 
revision. Rather, EPA is required to ensure that the revision complies 
with the applicable requirements found in CAA 110(a)(2)(C), CAA 110(l), 
40 CFR part 51, subpart I, 40 CFR part 51, subpart F, and appendix V to 
40 CFR part 51. We have explained in the responses above, and in our 
proposed rulemaking, how the SIP revision meets the requirements of CAA 
110(a)(2)(C), CAA 110(l), 40 CFR part 51, subpart I, 40 CFR part 51, 
subpart F, and appendix V to 40 CFR part 51. Appendix V to 40 CFR part 
51 requires that states who submit SIP revisions to EPA for approval 
provide evidence that they have the necessary legal authority under 
state law to adopt and implement the plan. EHD provided evidence of 
this authority. See Attachment C, 4. Pleadings filed with Air Board.

III. Final Action

    We are approving the revisions to the City of Albuquerque-
Bernalillo County Minor NSR program dated January 18, 2018 that 
includes supplemental information provided on April 29, 2019 as 
proposed. The revisions were adopted and submitted in accordance with 
the requirements of the CAA and

[[Page 2653]]

the EPA's regulations regarding SIP development at 40 CFR part 51. 
Additionally, we have determined that the submitted revisions to the 
City of Albuquerque-Bernalillo County Minor NSR program are consistent 
with CAA section 110(l), the EPA's regulations at 40 CFR 51.160--51.164 
and the associated policy and guidance. Therefore, under section 110 of 
the Act, the EPA approves into the New Mexico SIP for the City of 
Albuquerque-Bernalillo County the following revisions adopted on 
November 8, 2017, and submitted to the EPA on January 18, 2018:

 Addition of 20.11.39 NMAC PERMIT WAIVERS AND AIR QUALITY 
NOTIFICATIONS FOR CERTAIN SOURCE CATEGORIES
 20.11.39.1 NMAC Issuing Agency
 20.11.39.2 NMAC Scope
 20.11.39.3 NMAC Statutory Authority
 20.11.39.4 NMAC Duration
 20.11.39.5 NMAC Effective Date
 20.11.39.6 NMAC Objective
 20.11.39.7 NMAC Definitions
 20.11.39.8 NMAC Variances
 20.11.39.9 NMAC Savings Clause
 20.11.39.10 NMAC Severability
 20.11.39.11 NMAC Documents
 20.11.39.12 NMAC Permit Waivers
 20.11.39.13 NMAC Requirements for Source Categories to Which 
Part 39 Applies
 20.11.39.14 NMAC Air Quality Notification Application
 20.11.39.15 NMAC AQN Application Review
 20.11.39.16 NMAC Transfer of Prior Authorizations to AQNs
 20.11.39.17 NMAC Compliance and Enforcement
 20.11.39.18 NMAC Amending and Air Quality Notification
 20.11.39.19 NMAC Fees
 20.11.39.20 NMAC AQN Cancellation
 20.11.41 NMAC CONSTRUCTION PERMITS
 20.11.41.2(E)(2) NMAC Additional Permit Requirements
 20.11.41.2(G) NMAC Permissive Waiver

IV. Incorporation by Reference

    In this rule, we are finalizing regulatory text that includes 
incorporation by reference. In accordance with 5 U.S.C. 552(a) and 1 
CFR part 51, the revisions to the New Mexico, Albuquerque/Bernalillo 
County regulations, as described in the Final Action section above, are 
requirements incorporated by reference. We have made, and will continue 
to make, these materials generally available electronically through 
www.regulations.gov and in hard copy at the EPA Region 6 office (please 
contact Rick Barrett 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 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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, 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 16, 2020. 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, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 23, 2019.
Kenley McQueen,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:


[[Page 2654]]


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

Subpart GG--New Mexico

0
2. In Sec.  52.1620(c), the second table titled ``EPA Approved 
Albuquerque/Bernalillo County, NM Regulations'' is amended by adding an 
entry in alphanumerical order for ``Part 39 (20.11.39 NMAC)'' and 
revising the entry for ``Part 41 (20.11.41 NMAC)'' to read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                           EPA-Approved Albuquerque/Bernalillo County, NM Regulations
----------------------------------------------------------------------------------------------------------------
                                                            State
                                                          approval/
          State citation               Title/subject      effective     EPA approval date        Explanation
                                                             date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Part 39 (20.11.39 NMAC)..........  Permit Waivers and      1/18/2018  1/16/2020, [Insert
                                    Air Quality                        Federal Register
                                    Notifications for                  citation].
                                    Certain Sources.
 
                                                  * * * * * * *
Part 41 (20.11.41 NMAC)..........  Construction Permits    1/18/2018  1/16/2020, [Insert
                                                                       Federal Register
                                                                       citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2020-00286 Filed 1-15-20; 8:45 am]
 BILLING CODE 6560-50-P