Daily Rules, Proposed Rules, and Notices of the Federal Government
The State submittal related to this SIP revision, and which is part of the EPA docket, is also available for public inspection at the State Air Agency listed below during official business hours by appointment:
New Mexico Environment Department, Air Quality Bureau, 1301 Siler Road, Building B, Santa Fe, New Mexico.
Throughout this document the following terms have the meanings described below:
• “we”, “us” and “our” refer to EPA.
• “Act” and “CAA” mean the Clean Air Act.
• “40 CFR” means Title 40 of the Code of Federal Regulations—Protection of the Environment.
• “SIP” means the State Implementation Plan established under section 110 of the Act.
• “NSR” means new source review.
• “TSD” means the Technical Support Document for this action.
• “NAAQS” means any national ambient air quality standard established under 40 CFR part 50.
The Act at section 110(a)(2) requires states to develop and submit to EPA for approval into the 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 sources and modifications, collectively referred to as the NSR SIP. The CAA NSR SIP program is composed of three separate programs: Prevention of Significant Deterioration (PSD), Nonattainment New Source Review (NNSR), and MNSR. 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 thresholds and thus do not qualify as “major” and applies regardless of the NAAQS designation of the area in which a source is located. Together, these programs are referred to as the NSR program. 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; and part 51, Appendix S.
EPA is proposing to approve revisions to the NSR SIP for New Mexico submitted on May 29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006, which incorporate changes to the Construction Permits regulation contained in 20.2.72 of the New Mexico Administrative Code (NMAC), also known as Part 72. Part 72 contains the provisions that establish New Mexico's Minor NSR permitting program as well as preconstruction permitting requirements potentially applicable to other programs under the NMAC. EPA also is proposing to approve as part of the New Mexico NSR SIP, the letter dated November 7, 2012, from the Secretary committing the NMED Air Quality Bureau to providing notification on the NMED's Web site of all second 30-day public comment periods provided for under Paragraph B of Section 206 of Part 72.
The five SIP revisions submittals under review in this action contain proposed changes to each of the current SIP-approved Sections of Part 72 and include the proposed addition of two new Sections within the Part. All changes are identified in Table 1 of this rulemaking. These proposed changes include non-substantive changes to Part 72, such as corrections of typographical errors and additions of clarifying language to the existing SIP. These proposed changes also include revisions that result in a more stringent SIP than currently approved, such as incorporation of additional recordkeeping and notification requirements for portable sources to relocate without a permit; these changes resulting in a more stringent SIP are discussed in more detail in this rulemaking and TSD. Furthermore, some of the revisions include changes that alter current SIP-approved permitting programs but still meet applicable federal requirements, such as a change from case-by-case permitting to general permitting for certain Minor NSR sources. Finally, proposed changes also include revisions that are less stringent than the current SIP and those revisions must be evaluated under section 110(l) of the CAA to determine they will not interfere with attainment or reasonable further progress or any other applicable requirement of the Act. These revisions include the addition of exemptions for
EPA's proposed approval action today addresses portions of five revisions to the New Mexico SIP submitted on May 29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006. EPA also is proposing to approve as part of the New Mexico NSR SIP, the letter dated November 7, 2012, from the Secretary.
The State of New Mexico submitted a revision on May 29, 1998 to 20.2.72 NMAC—Construction Permits for incorporation into the New Mexico SIP. This submittal includes the following changes:
The State of New Mexico submitted a revision on November 6, 1998 to 20.2.72 NMAC—Construction Permits for incorporation into the New Mexico SIP. This submittal includes the following changes:
The State of New Mexico submitted a revision on April 11, 2002 to 20.2.72 NMAC—Construction Permits for incorporation into the New Mexico SIP. This submittal includes the following changes:
• In addition to the revisions of the previously listed sections, the April 11, 2002 submittal also included the renumbering of several existing sections and formatting changes that were made throughout the entire Part. These formatting changes were necessary for the provisions contained in Part 72 to match the formatting style of other Parts contained in the NMAC.
The State of New Mexico submitted a revision on April 25, 2005 to 20.2.72 NMAC—Construction Permits for incorporation into the New Mexico SIP. This submittal includes the following changes:
The State of New Mexico submitted a revision on November 2, 2006 to 20.2.72 NMAC—Construction Permits for incorporation into the New Mexico SIP. This submittal includes the following changes:
Table 1 summarizes the changes that are in the SIP revisions submitted on May 29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006. A summary of EPA's evaluation of each section and the basis for this action is discussed in Section III of this preamble. The TSD includes a detailed evaluation of the referenced SIP submittals. Table 1. Summary of each SIP submittal that is affected by this action.
The current New Mexico SIP includes EPA-approved Part 72 provisions (
The State of New Mexico submitted revisions to its NSR SIP on May 29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006, incorporating changes to the Construction Permits regulation contained in 20.2.72 NMAC for approval by EPA as revisions to the New Mexico NSR SIP. These SIP revisions were submitted pursuant to the applicable requirements of section 110(a)(2) of the CAA. For example, the federal requirements at Section 110(a)(2)(A) direct each SIP to include enforceable emission limitations necessary or appropriate to meet the CAA's applicable requirements. Section 110(a)(2)(C) requires each SIP to include a program to provide for the enforcement of the measures described in 110(a)(2)(A), and regulation of the modification and construction of any stationary source within attainment/unclassifiable areas and nonattainment areas. EPA regulations further 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; and part 51, Appendix S.
In addition to the applicable preconstruction permitting program related requirements of section 110(a)(2), EPA's evaluation must consider section 110(l) of the CAA. Section 110(l) of the CAA states that EPA shall not approve a revision of the SIP if it would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the Act. Thus, under CAA section 110(l), the proposed NSR SIP revision submittals must not interfere with attainment, reasonable further progress, or any other applicable requirement of the Act. The provisions contained in Part 72 are applicable to all “regulated air pollutants,” which includes all pollutants for which there are NAAQS. Therefore, as part of the 110(l) analysis, we have evaluated the proposed NSR SIP revision submittals for their impacts on attainment and reasonable further progress for all NAAQS pollutants. The entire state of New Mexico is designated attainment for all pollutants, with the exception of PM
In EPA's technical review of New Mexico's submitted SIP revisions, as further discussed in Section III.B of this preamble, and the TSD, we evaluate each revision against the applicable federal requirements and regulations.
The provisions found in Part 72 are divided into five subparts. Four of the five subparts contain provisions that are currently approved into the New Mexico SIP, with Subpart IV (220.127.116.110 NMAC—18.104.22.1689 NMAC), which relates to Permits for Toxic Air Pollutant Emission, being outside of the scope of the New Mexico SIP.
40 CFR 51.160 contains federal requirements regarding information an owner or operator of a new or modified source must submit to the State or local agency. The current SIP-approved Part 72 contains requirements regarding contents of a permit application that any person seeking a permit under 22.214.171.124(A) NMAC must file with the Department. New Mexico has proposed several revisions to the required contents of permit applications as specified in Section 203 in the May 29, 1998 and April 11, 2002 SIP revision submittals. In addition to formatting, clarification, and other non-substantive changes detailed in the TSD, these revisions include substantive changes that add to existing SIP-approved requirements. These changes include the addition of provisions related to the changing, supplementing, or correcting a previously submitted permit application. The revisions also include the provision of additional requirements tied to the existing Public Service Announcement requirements for permit applicants. Because the revisions to the current SIP-approved Section 203 include additional requirements for permit applicants with respect to the contents of permit applications that were not present in the current SIP, we propose to approve these revisions into the New Mexico SIP as meeting applicable federal requirements, including 40 CFR 51.160.
Section 207 of the currently approved SIP includes procedural requirements regarding permit and permit revision issuance by the Department, and petition for hearing and appeal procedural requirements for applicants adversely affected by a permit decision by the Department. The May 29, 1998 and April 11, 2002 SIP revisions include clarifying language, formatting changes, and other non-substantive changes to Section 207, which are further detailed in the TSD. The May 29, 1998 SIP revision also added language to change the applicability of Section 207's requirements regarding the Department's completeness determination and time frame within which the Department must take action on a permit application to Significant permit revisions, rather than all permit revisions. This change reflects the tiered permit revision approach adopted by New Mexico under the newly added Section 219, and that approach is further discussed in Subsection III.B.6 of this preamble.
The submitted Section 207 requirements, in part, specify numbers of days within which the Department shall either grant, grant subject to conditions, or deny a permit or permit revision after the Department deems a permit application administratively complete. For permit applications that are subject to the PSD requirements of Part 74, the April 11, 2002 SIP revision reduced the time for the Department's action from 240 days to 180 days.
The April 11, 2002 SIP revision reduced the number of days within which the Department must take action upon a preconstruction permit application that is not subject to the PSD requirements of Part 74 from 180 days to 90 days. This reduction applies to both Part 79 NNSR and Part 72 MNSR permits. NMED has been implementing this reduction in time for review of NNSR permit applications for over 10 years. NMED has issued zero (0) new NNSR permits between 1995 and 2012.
Section 207 of the current SIP also specifies the Department shall hold a hearing within 90 days upon receipt of a timely petition for hearing by a person who participated in a permitting action before the Department and is adversely affected by such permitting action. The April 11, 2002 SIP revision changed the number of days by which the Department must hold a hearing from 90 days to 60 days. Because this change expedites the time frame within which the Department must hold a hearing upon receipt of a petition by a person
The current SIP-approved Part 72 contains potentially applicable requirements for sources located in Nonattainment areas within the Section 216 provisions. New Mexico proposed non-substantive changes to Section 216 in the April 11, 2002 SIP revision submittal that include updates to formatting within the rule provisions to be consistent with formatting updates that were made throughout Part 72 and the NMAC. New Mexico also proposed changes to this section of Part 72 as part of the November 2, 2006 SIP revision submittal. These changes to Section 216 include the non-substantive changes to the rule language in Paragraphs (A)(1), (A)(2), and (B) to clarify that the requirements of this section are potentially applicable to both new sources and modifications of an existing source. This change does not change the applicability test or requirements of Section 216. The April 11, 2002 SIP revision also contained proposed changes to add Paragraphs (A)(3) and (C) to Section 216. The addition of these two sections add a requirement for specific stationary sources (i.e., landfills and grandfathered sources) that were not previously required to obtain a preconstruction NSR permit to submit an application for a permit under Part 72, including submittal of a modeling analysis to demonstrate compliance with the NAAQS. The April 11, 2002 revisions also incorporate a requirement that if those newly permitted sources could not show compliance with the NAAQS, the source would be required to make changes to the facility that would result in an overall net air quality benefit. These proposed revisions to Section 216 result in a more stringent SIP than currently approved. Therefore, we propose to approve these revisions to Section 216 into the SIP by the determination that they will not affect the ability of the Section, or Part 72 overall, to meet the federal requirements for SIP-approved permitting plans.
The current SIP-approved provisions of part 72 contain provisions for a Source Class Permit Streamlining program but issuance of such a permit required prior EPA approval. New Mexico adopted the new Section 220, which contains the general preconstruction permitting program, and submitted this addition in the May 29, 1998 SIP submittal.
Paragraph A of Section 220 includes the requirements related to the procedures to develop and issue a general permit. As required in 126.96.36.199(A)(1) NMAC, a general construction permit developed by NMED must cover numerous similar sources. Sources allowed to register for coverage under a general permit must be homogenous in terms of operations, processes and emissions, subject to the same or substantially similar requirements, and not subject to case-by-case standards or requirements. These requirements satisfy the Federal requirement 40 CFR 51.160(a) that the SIP has legally enforceable procedures that enable the NMED to determine whether construction or modification will result in a violation of a control strategy or interfere with attainment or maintenance of a national standard in New Mexico or a surrounding state. Section 188.8.131.52(A)(2) NMAC requires each general permit to describe which sources may qualify to register under the general permit, which satisfies the requirement of 40 CFR 160(e) which provides that the SIP must identify the types and sizes of facilities that will be subject to review. NMED has indicated in the SIP submittal that the permits developed and issued under the general construction permitting program are for Minor NSR sources.
EPA has recognized, for certain classes of sources, that it is appropriate for states to establish enforceable
Based on the requirements contained in Section 220 and further clarification provided by NMED, a general permit could not be developed for use by a Major NSR source.
The provisions contained in Paragraph A of Section 220 also address public notice requirements for issued general permits. 184.108.40.206(A)(1) NMAC requires that prior to issuance, each general construction permit must undergo the same public notice as that required for case-by-case permits in Section 206. Section 206 public notice requirements are discussed in more detail in Section III.B.5 of this preamble. Paragraph B of Section 220 contains procedural requirements that must be met if NMED wishes to modify an existing general construction permit. These modifications are required to undergo an additional public notice and must include a transition schedule that addresses how and when sources that are registered under the existing general construction permit will be transitioned to the requirements contained in the modified general construction permit.
Together with Paragraph A, we propose to find the provisions of Paragraph B contain requirements that satisfy the requirements contained in 40 CFR 51.160, 51.161, 51.163 related to a permitting program having legally enforceable procedures, making information publicly available, and having administrative procedures in place to operate the program consistent with the previous requirements. The addition of Section 220 also does not interfere with the Part 72 construction permits program ability to meet requirements in 40 CFR 51.162 and 51.164 that are applicable to Minor NSR programs, since the addition does not impact the identification of the responsible agency or the stack height procedures.
Because the revisions to incorporate the general permitting program under Section 220 would add an alternative Minor NSR permitting approach to the preconstruction permitting program, these proposed revisions must also be evaluated to determine if they will interfere with attainment or reasonable further progress or any other applicable requirement of the Act. This evaluation is included in the following section of this preamble.