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Daily Rules, Proposed Rules, and Notices of the Federal Government

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-NM-0006; FRL-9756-3]

Approval and Promulgation of Implementation Plans; New Mexico; New Source Review (NSR) Preconstruction Permitting Program

AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA is proposing to approve revisions to the applicable New Source Review (NSR) State Implementation Plan (SIP) for New Mexico. Among the changes, EPA is proposing to approve are the following: The establishment of a new minor NSR (MNSR) general construction permitting program; changes to the MNSR Public Participation requirements; the establishment of three different types of MNSR Permit Revisions; and the addition of exemptions forde minimisemission sources and activities from obtaining a MNSR permit. EPA proposes to find that these revisions to the New Mexico SIP comply with the Federal Clean Air Act (the Act or CAA) and EPA regulations and are consistent with EPA policies. EPA is proposing this action under section 110 of the Act.
DATES: Comments must be received on or before December 31, 2012.
ADDRESSES: (1)www.regulations.gov:Follow the on-line instructions for submitting comments.

(2)Email:Ms. Ashley Mohr atmohr.ashley@epa.gov.

(3)Fax:Ms. Ashley Mohr, Air Permits Section (6PD-R), at fax number 214-665-6762.

(4)Mail:Ms. Ashley Mohr, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

(5)Hand or Courier Delivery:Ms. Ashley Mohr, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to Docket ID No. EPA-R06-OAR-2005-NM-0006. EPA's policy is that all comments received will be included in the public docket without change and may be made available online athttp://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 throughhttp://www.regulations.govor email, if you believe that it is CBI or otherwise protected from disclosure. Thehttp://www.regulations.govWeb site is an "anonymous access" system, which means that EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going throughhttp://www.regulations.gov,your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment along with any disk or CD-ROM submitted. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption and should be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage athttp://www.epa.gov/epahome/dockets.htm.

Docket:All documents in the docket are listed in thehttp://www.regulations.govindex. Although listed in the index, some information is not publicly available, e.g., CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically inhttp://www.regulations.govor in hard copy at the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in theFOR FURTHER INFORMATION CONTACTparagraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. A 15 cent per page fee will be charged for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area on the seventh floor at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State 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.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning today's direct final action, please contact Ms. Ashley Mohr (6PD-R), Air Permits Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone (214) 665-7289; fax number (214) 665-6762; email addressmohr.ashley@epa.gov.
SUPPLEMENTARY INFORMATION:

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.

Table of Contents I. What action is EPA proposing? II. What did New Mexico submit? A. May 29, 1998 SIP Revision Submittal B. November 6, 1998 SIP Revision Submittal C. April 11, 2002 SIP Revision Submittal D. April 25, 2005 SIP Revision Submittal E. November 2, 2006 SIP Revision Submittal III. EPA's Evaluation A. What are the requirements for EPA's evaluation of a preconstruction permitting program SIP submittal? B. Technical Review of New Mexico's SIP Revision Submittals 1. Submitted Revisions to Section 203—Contents of Permit Applications 2. Submitted Revisions to Section 207—Permit Decisions and Appeals 3. Submitted Revisions to Section 216—New Applicability Conditions and Requirements for Sources Located in Nonattainment Areas 4. Submittal of New Section 220—Minor NSR General Permits a. 110(l) Analysis for Section 220 5. Submitted Revisions to Section 206—Public Notice and Participation for Minor NSR a. 110(l) Analysis for Section 206 6. Submittal of New Section 219—Permit Revisions for Minor NSR a. Administrative Permit Revisions b. Technical Permit Revisions c. 110(l) Analysis for Technical Revisions d. Significant Permit Revisions 7. Submitted Revisions to Section 202—New Exemptions forde minimisSources and Activities From Minor NSR Permitting Requirements a. Paragraph A Exemptions b. 110(l) Analysis for Paragraph A Exemptions c. Paragraph B Exemptions d. 110(l) Analysis for Paragraph B Exemptions e. Paragraph C Exemptions f. 110(l) Analysis for Paragraph C Exemptions g. Portable Source Relocation h. Additional 110(l) Analysis—Historical Look Back IV. Proposed Action A. What are we not addressing in this proposed action? V. Statutory and Executive Order Reviews I. What action is EPA proposing?

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 forde minimissources and activities from MNSR permitting requirements, tiered permit revisions, and changes to MNSR public notice and participation requirements. The November 7, 2012 letter from the Secretary provides clarifying information for the changes to NMSR public notice and participation requirements. Our technical analysis of all these proposed changes contained in the May 29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006 SIP revision submittals, the Secretary's November 7, 2012 letter, and additional supplemental information provided by NMED, has found that they meet the CAA and 40 CFR Part 51 and are consistent with EPA policies.1 2 3 4 Therefore, EPA proposes action to approve the revisions to Part 72 and the Secretary's November 7, 2012 letter into the New Mexico NSR SIP. EPA is proposing this action under section 110 of the Clean Air Act (the Act). Weprovide a summary of the reasoning comprising our evaluation in this rulemaking, as well as a more detailed evaluation and analysis in the Technical Support Document (TSD) for this rulemaking.

1Clarification of Exemptions in Section 202 of 20.2.72 NMAC—Construction Permits letter dated September 19, 2012 from Richard L. Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate Director for Air Programs, EPA, Region 6.

2Clarification of Intent for Section 220 of 20.2.72 NMAC—Construction Permits letter dated September 19, 2012 from Richard L. Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate Director for Air Programs, EPA, Region 6.

3Permit Exemptions data provided via electronic mail dated September 18, 2012, from Kerwin Singleton, NMED, to Ashley Mohr, EPA, Region 6.

4Historical Technical permit revisions data was provided via electronic mail dated November 2, 2012, from Kerwin Singleton, NMED, to Ashley Mohr, EPA, Region 6.

II. What did New Mexico submit?

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.

A. May 29, 1998 SIP Revision Submittal

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:

Revisions to the following sections:20.2.72.104 NMAC, Effective Date; 20.2.72.202 NMAC, Permit Revisions; 20.2.72.203 NMAC, Contents of Applications; and 20.2.72.207 NMAC, Permit Decisions and Appeals.

Addition of the following new sections:20.2.72.219 NMAC, Permit Revisions and 20.2.72.220 NMAC, General Permits.

B. November 6, 1998 SIP Revision Submittal

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:

Revisions to the following sections:20.2.72.210 NMAC, Permit Conditions and 20.2.72.300 NMAC, Definitions.

C. April 11, 2002 SIP Revision Submittal

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:

Revisions to the following sections:20.2.72.107 NMAC, Definitions; 20.2.72.201 NMAC, New Source Review Coordination; 20.2.72.203 NMAC, Contents of Applications; 20.2.72.206 NMAC, Public Notice and Participation; 20.2.72.207 NMAC, Permit Decisions and Appeals; 20.2.72.208 NMAC, Basis for Denial of Permit; 20.2.72.215 NMAC, Emergency Permit Process; 20.2.72.219 NMAC, Permit Revisions; 20.2.72.220 NMAC, General Permits; 20.2.72.301 NMAC, Applicability; 20.2.72.302 NMAC, Contents of Applications; and 20.2.72.304 NMAC, Permit Decisions.

• 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.

D. April 25, 2005 SIP Revision Submittal

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:

Revisions to the following section:20.2.72.219 NMAC, Permit Revisions.

E. November 2, 2006 SIP Revision Submittal

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:

Revisions to the following section:20.2.72.216 NMAC, Nonattainment Area Requirements.

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.

Table 1—Summary of Each SIP Submittal That Is Affected by This Action Section Title Submittal dates Description of change Proposed
  • action
  • 20.2.72NMAC—Construction Permits Issuing Agency 20.2.72.100NMAC Issuing Agency 4/11/2002 Section 100 renumbered to Section 1 and revised to update the section title formatting Approval. Scope 20.2.72.101NMAC Scope 4/11/2002 Section 101 renumbered to Section 2 and revised to update the section title formatting Approval. Statutory Authority 20.2.72.102NMAC Statutory Authority 4/11/2002 Section 102 renumbered to Section 3 and revised to update the section title formatting Approval. Duration 20.2.72.103NMAC Duration 4/11/2002 Section 103 renumbered to Section 4 and revised to update the section title and section references formatting Approval. Effective Date 20.2.72.104NMAC Effective Date 5/29/1998 Section revised to account for different effective dates for the different sections contained in this Part Approval. 4/11/2002 Section 104 renumbered to Section 5 and revised to update the section title and date formatting Approval. Objective 20.2.72.105NMAC Objective 4/11/2002 Section 105 renumbered to Section 6 and revised to update the section title formatting Approval. Amendment and Supersession of Prior Regulations 20.2.72.106NMAC Amendment and Supersession of Prior Regulations 4/11/2002 Section 106 renumbered to Section 8 and revised to update the section title formatting Approval. Definitions 20.2.72.107NMAC Definitions 4/11/2002 Section 107 renumbered to Section 7 and revised to update the section title, section references, and list numbering formatting; Section revised to update the definition of “Potential Emission Rate” Approval. Documents 20.2.72.108 NMAC Documents 4/11/2002 Section 108 renumbered to Section 9 and revised to update the section title formatting Approval. Application for Construction Modification, NSPS, and NESHAP—Permits and Revisions 20.2.72.200NMAC Application for Construction, Modification, NSPS, and NESHAP—Permits and Revisions 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. New Source Review Coordination 20.2.72.201NMAC New Source Review Coordination 4/11/2002 Section revised to include clarification regarding the number of applications required if source is subject to NSR under multiple parts; Section revised to update the section title and section references formatting Approval. Permit Revisions 20.2.72.202NMAC Permit Revisions 5/29/1998 Section revised to add a list of emission sources and activities that may be exempt from certain preconstruction permitting requirements; Section revised to include an exemption from preconstruction permitting applicability for a specific group of sources that trigger permitting only as a result of NSPS and NESHAP requirements Approval. 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Contents of Applications 20.2.72.203NMAC Contents of Applications 5/29/1998 Section revised to update provisions to reflect the tiered permit revisions approach and to add clarifying language regarding public notice requirements, including requirements for public service announcements Approval. 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Confidential Information Protection 20.2.72.204NMAC Confidential Information Protection 4/11/2002 Section revised to update the section title and section references formatting Approval. Construction, Modification and Permit Revision in Bernalillo County 20.2.72.205NMAC Construction, Modification and Permit Revision in Bernalillo County 4/11/2002 Section revised to update the section title formatting Approval. Public Notice and Participation 20.2.72.206NMAC Public Notice and Participation 5/29/1998 Section was revised to remove a descriptive term from the provisions that the Department felt was unnecessary and caused confusion in the current provisions Approval. 4/11/2002 Section revised to update the section title, section references, and list numbering formatting; Section revised to change the public notice process to a two-step notice with the public comment period reduced from 45 days to 30 days Approval. Permit Decisions and Appeals 20.2.72.207NMAC Permit Decisions and Appeals 5/29/1998 Section revised to include clarifying language and to specify what requirements in the section apply only to significant permit revisions Approval. 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Basis for Denial of Permit 20.2.72.208NMAC Basis for Denial of Permit 4/11/2002 Section revised to include clarifying language and to delete references to provisions that have been previously removed from the NMAC Approval. Additional Legal Responsibilities on Applicants 20.2.72.209NMAC Additional Legal Responsibilities on Applicants 4/11/2002 Section revised to update the section title formatting Approval. Permit Conditions 20.2.72.210NMAC Permit Conditions 11/6/1998 Section was revised to correct a typographical error that was adopted by the state in a previous revision of the Section Approval. 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Permit Cancellations 20.2.72.211NMAC Permit Cancellations 4/11/2002 Section revised to update the section title and list numbering formatting Approval. Permittee's Notification Requirements to Department 20.2.72.212NMAC Permittee's Notification Requirements to Department 4/11/2002 Section revised to update the section title Approval. Startup and Followup Testing 20.2.72.213NMAC Startup and Followup Testing 4/11/2002 Section revised to update the section title and section references formatting Approval. Source Class Exemption Process (Permit Streamlining) 20.2.72.214NMAC Source Class Exemption Process (Permit Streamlining) 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Emergency Permit Process 20.2.72.215NMAC Emergency Permit Process 4/11/2002 Section revised to update the section title and section references formatting Approval. Nonattainment Area Requirements 20.2.72.216NMAC Nonattainment Area Requirements 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. 11/2/2006 Section revised to include clarifying language and to specify permitting applicability tests for permit actions in nonattainment areas Approval. Compliance Certifications 20.2.72.217NMAC Compliance Certifications 4/11/2002 Section revised to update the section title and section references formatting Approval. Enforcement 20.2.72.218NMAC Enforcement 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Permit Revisions 20.2.72.219NMAC Permit Revisions 5/29/1998 Section added to the Part and permit revisions previously contained in Section 202 were moved to this Section and revised to include three separate tiers of permit revisions Approval. 4/11/2002 Section updated to revise references to other provisions in the Part that were changes as a result of simultaneous updates; Section revised to update the section title, section references, and list numbering formatting Approval. 4/25/2005 Section updated to include two additional permit actions that would qualify as Technical permit revisions instead of Significant revisions Approval. General Permits 20.2.72.220NMAC General Permits 5/29/1998 Section added to the Part to include provisions related to the state adopted General Permits preconstruction programa Approval. 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Definitions 20.2.72.300NMAC Definitions 11/6/1998 Section was revised to correct a typographical error that was adopted by the state in a previous revision of the Section Approval. 4/11/2002 Section revised to update the section title and section references formatting Approval. Applicability 20.2.72.301NMAC Applicability 4/11/2002 Section updated to revise references to other provisions in the Part that were changes as a result of simultaneous updates; Section revised to update the section title, section references, and list numbering formatting Approval. Contents of Applications 20.2.72.302NMAC Contents of Applications 4/11/2002 Section revised to include clarifying language regarding the permit application requirements for applicant's seeking a streamlined construction permit; Section revised to update the section title, section references, and list numbering formatting Approval. Public Notice and Participation 20.2.72.303NMAC Public Notice and Participation 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Permit Decisions 20.2.72.304NMAC Permit Decisions 4/11/2002 Section revised to include clarifying language regarding the review of a permit application for “administrative completeness”; Section revised to update the section title, section references, and list numbering formatting Approval. General Requirements 20.2.72.305NMAC General Requirements 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval.
    Source Class Requirements 20.2.72.306NMAC Source Class Requirements 4/11/2002 Section revised to update the section title, section references, and list numbering formatting Approval. Table 1—Significant Ambient Concentrations 20.2.72.500NMAC Table 1—Significant Ambient Concentrations 4/11/2002 Section revised to update the section title formatting Approval. Table 2—Permit Streamlining Source Class Categories 20.2.72.501NMAC Table 2—Permit Streamlining Source Class Categories 4/11/2002 Section revised to update the section title formatting Approval. a20.2.72.220(A)(2)(c)(i) NMAC references the requirements found in 20.2.77 NMAC, 20.2.78 NMAC, and 20.2.82 NMAC (hereafter collectively referred to as Parts 77, 78, and 82), which are regulations separate from the preconstruction permitting rules governed by 20.2.72 NMAC. The regulations included in Parts 77, 78, and 82 are subject to statutory and regulatory evaluation beyond the statutory scope of this rulemaking. This action is limited to determining whether the revisions to the Part 72—Construction Permit provisions contained in the New Mexico SIP comply with the Federal Clean Air Act and EPA regulations and are consistent with EPA policies. Therefore, we are approving the reference to these regulations as part of the General Permits provisions being approved into Part 72 of the New Mexico SIP so as to include the requirement that general construction permits contain adequate permit conditions to ensure compliance with the requirements contained in Parts 77, 78, and 82, but we are not evaluating or approving into the SIP the underlying and related regulations for these Parts through this rulemaking. III. EPA's Evaluation

    The current New Mexico SIP includes EPA-approved Part 72 provisions (see62 FR 50514, September 26, 1997), which are related to New Mexico's MNSR construction permit program and preconstruction permitting requirements potentially applicable to other programs under the New Mexico Administrative Code. Since the September 26, 1997 EPA approval, New Mexico has submitted revisions to Part 72 provisions to EPA for review and action on the following dates: May 29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006. The following sections of this proposed action and the accompanying TSD analyze the proposed revisions to the Construction Permits regulation found in Part 72 to preliminarily determine whether the submitted revisions and the Secretary's Letter dated November 7, 2012 as a whole support the CAA, EPA policy, and guidance for NSR permitting.

    A. What are the requirements for EPA's evaluation of a preconstruction permitting program SIP submittal?

    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 PM10and 1-hour ozone. The only area designated nonattainment for PM10in New Mexico is Anthony, which is located in Dona Ana County, and the only area designated nonattainment for the 1-hour ozone NAAQS is Sunland Park, which is also located in Dona Ana County.5

    5The Sunland Park area has unique considerations for ozone planning due to airshed contributions from Mexico and Texas. Air quality within the Paso del Norte Airshed has improved over the last 10 years due to cooperative efforts between the State of Texas, the State of New Mexico, and Mexico through organizations such as the Paso Del Norte Joint Advisory Committee (JAC). Although the area has continued to monitor attainment of the 1-hour ozone standard the State chose not to submit a request for redesignation before EPA revoked the 1-hour ozone NAAQS. Monitors in Sunland Park continue to reflect attainment of the 1-hour ozone NAAQS. The State, however, did not submit a request for redesignation of the area to attainment for the 1-hour ozone standard and a section 175A maintenance plan. Because the area was never redesignated to attainment, the area must continue to meet the 1-hour ozone marginal area applicable requirements (see 40 CFR 51.905(a)(3)). Sunland Park has met the revoked 1-hour ozone standard since 1998. (See 76 FR 28181).

    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.

    B. Technical Review of New Mexico's SIP Revision Submittals

    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 (20.2.72.400 NMAC—20.2.72.499 NMAC), which relates to Permits for Toxic Air Pollutant Emission, being outside of the scope of the New Mexico SIP.6 The remaining four SIP-approved subparts are as follows: Subpart I (20.2.72.100 NMAC—20.2.72.199 NMAC)—General Provisions, Subpart II (20.2.72.200 NMAC—20.2.72.299 NMAC)—Permit Processing and Requirements, Subpart III (20.2.72.300 NMAC—20.2.72.399 NMAC)—Source Class Permit Streamlining, and Subpart V—Appendix. As part of the five SIP revision submittals under review in the action, changes were made to the provisions contained in each of the four SIP-approved subparts. As detailed in the TSD, the May 29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006 SIP submittals meet the completeness criteria established in 40 CFR 51, Appendix V. In addition to the completeness review, the revisions contained in the five SIP submittals were evaluated against the applicable requirements contained in the Act and 40 CFR 51. A Section-by-Section review showing each proposed change made to Part 72 is included in the TSD for this proposed action, which also includes a summary of the revisions made to each specific section of Part 72. The following sections of this preamble provide a summary of the reasoning comprising our evaluation used in this rulemaking, specifically for those proposed revisions that include substantive changes to Part 72.

    6Subparts I, II, III, and V were approved by EPA on September 26, 1997 (62 FR 50518), effective November 25, 1997.

    1. Submitted Revisions to Section 203—Contents of Permit Applications

    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 20.2.72.200(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.

    2. Submitted Revisions to Section 207—Permit Decisions and Appeals

    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.7 Section 165(c) of the CAA requires that any completed PSD permit application shall be granted or denied no later than one year after the date of filing of such completed application. The reduction of time for the Department's action on a PSD permit application from 240 days to 180 days thus still complies with federal requirements to act on such a permit within one year after the date of filing of a completed application.

    7We are only reviewing and proposing action on the revisions to Part 72 in this action. The underlying regulations and program in Part 74 were not included, and are substantively not required to be evaluated, in the SIP revisions EPA is evaluating in this rulemaking.

    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 2012.8 Similarly, NMED has been implementing this reduction in time for the Department's review of Minor NSR permits for over 10 years. NMED has issued approximately 673 new MNSR permits between 1995 and 2012.9 As previously discussed, the entire state of New Mexico is designated attainment for all pollutants, with the exception of PM10and 1-hour ozone. The only area designated nonattainment for PM10in New Mexico is Anthony, which is located in Dona Ana County, and the only area designated nonattainment for the 1-hour ozone NAAQS is Sunland Park, which is also located in Dona Ana County. We propose to find the reduction of time for the Department's review of NNSR and Minor NSR permit applications has therefore not interfered with attainment, reasonable further progress, or any other applicable requirement of the Act.

    8Historical NNSR permit issuance data was provided via electronic email dated November 7, 2012, from Ted Schooley, NMED, to Ashley Mohr, EPA, Region 6.

    9Historical new MNSR permit issuance data was provided via electronic mail dated November 2, 2012, from Kerwin Singleton, NMED, to Ashley Mohr, EPA, Region 6.

    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 personadversely impacted by a permitting action, this change is one that makes the current SIP more stringent. We propose to find the revisions to Section 207 comply with applicable federal requirements, including section 110(l) of the Act.

    3. Submitted Revisions to Section 216—New Applicability Conditions and Requirements for Sources Located in Nonattainment Areas

    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.

    4. Submittal of New Section 220—Minor NSR General Permits

    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.10 In New Mexico's proposed general permitting program, the underlying provisions related to the general permitting program are adopted into the state's regulations and are submitted for approval into the New Mexico SIP by EPA. As a result, if Section 220 is approved by EPA into the SIP, the general permits that are developed and issued by the NMED in accordance with the procedures and requirements of Section 220 automatically become part of the SIP, and therefore, are federally enforceable on the basis that they meet the SIP-approved requirements of the general construction permits program in Section 220.

    10The proposed general construction permitting program is similar to the Source Class Permit Streamlining program contained in 20.2.72.300—20.2.72.399 NMAC of the current New Mexico SIP. The key difference is that under the current SIP-approved Source Class Permit Streamlining program, each source class permit must be approved by EPA into the SIP; whereas, under the proposed Section 220 general construction permitting program, the underlying provisions for the permitting program are SIP approved and the individual general permits undergo public participation process similar to that required for a case-by-case NSR permit.

    Paragraph A of Section 220 includes the requirements related to the procedures to develop and issue a general permit. As required in 20.2.72.220(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 20.2.72.220(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.11 40 CFR 51.160 requires that the Minor NSR SIP revision submittal be enforceable. In particular, 40 CFR 51.160(a) requires that the SIP revision be enforceable in order to ensure that the issuance of the Minor NSR permit will not cause or contribute to a violation of any SIP control strategy and will not interfere with attainment and maintenance of the NAAQS. The September 23, 1987, Memorandum from J. Craig Potter, Assistant Administrator for Air and Radiation, and Thomas L. Adams Jr., Assistant Administrator for Enforcement and Compliance Monitoring, entitled “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency” provides EPA's guidance for assessing whether a SIP revision submittal is sufficiently enforceable. We find that the new general construction permitting program meets the requirements of section 40 CFR 51.160(a), which requires that SIP revision submittals be enforceable. The submitted regulation specifically requires that a general permit include monitoring, record keeping and reporting (MRR) requirements appropriate to the source and sufficient to ensure compliance with the general construction permit. At a minimum, the general permit shall specify where the records shall be maintained, how long the records shall be retained and that all records or reports shall be made available upon request by the Department. The general permit also must contain sufficient terms and conditions to ensure that all sources operating under a general permit will meet all applicable requirements under the Federal Clean Air Act, e.g., NSPS, NESHAPS, and MACT, and all requirements of the SIP. Such a general permit is not allowed to cause or contribute to air contaminant levels in excess of any National or New Mexico Ambient Air Quality Standard. For these reasons, EPA finds that the submitted general construction permitting program will ensure attainment and maintenance of the NAAQS and will prevent violations of any of the New Mexico SIP's control strategies. Under this submitted new permitting program, the State is able to determine if there will be an adverse impact on air quality.

    11Pages 77 and 78 of hearing transcripts for October 17, 1997 Environmental Improvement Board Public Hearing.

    EPA has recognized, for certain classes of sources, that it is appropriate for states to establish enforceableemission limits that serve to limit potential to emit through exclusionary rules that apply to certain source categories.See,Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, Office of Air Quality Planning and Standards (OAQPS) entitled “Guidance for State Rules for Optional Federally-Enforceable Emissions Limits Based on Volatile Organic Compound Use,” dated October 15, 1993;See also,Memorandum from John Seitz, Director, OAQPS entitled “Approaches to Creating Federally-Enforceable Emission Limits,” dated November 3, 1993. EPA also issued a guidance memorandum that provides guidance for addressing the minor source status under the Act for lower-emitting sources in eight source categories.See,April 14, 1998, Memorandum entitled, “Potential to Emit (PTE) Guidance for Specific Source Categories” (hereinafter the 1998 memoranda). It provides technical information useful in devising practicable enforceable potential to emit for small sources and identifies sources that are “true minors.” Although not an exclusionary rule, the practicable enforceability criteria in the guidance memoranda serve as a way to measure whether the submitted general construction permitting program is practicably enforceable and therefore can ensure that issuance of the Minor general NSR permit will not cause or contribute to a violation of any SIP control strategy and will not interfere with attainment and maintenance of the NAAQS. The submitted program clearly identifies the category of sources that qualify for coverage. The submitted program provides that a source notify the State of its coverage under the program by submitting a complete application to register. The NMED shall grant registration to a source only if it submits a complete application and meets the terms and conditions of the general permit. The NMED may grant or deny an application.

    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.12 The state's implementation of the general permitting program since the state adopted the Section 220 provisions is consistent with the fact that the general permitting program is for Minor NSR sources only. Each of the general construction permits that New Mexico has issued in accordance with Section 220 includes facility-wide annual emission limits that are less than PSD permitting thresholds. In addition, Paragraph A of Section 220 includes provisions that specify what requirements must be met for a general permit to be issued under Section 220, including requirements that the permit contain sufficient terms and conditions, along with sufficient monitoring, record keeping, and reporting requirements, to assure that sources authorized via the general construction permit will meet all applicable requirements under the Act, including PSD and NNSR. Since these major NSR permitting programs require source-specific evaluations as part of the permitting process, a general permit could not be developed to authorize a major NSR source. The general permitting program was adopted as a Minor NSR preconstruction permitting program, and NMED's historical implementation since adoption of Section 220 is consistent with its intended applicability to Minor NSR sources only.

    12Clarification of Intent for Section 220 of 20.2.72 NMAC—Construction Permits letter dated September 19, 2012 from Richard L. Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate Director for Air Programs, EPA, Region 6.

    The provisions contained in Paragraph A of Section 220 also address public notice requirements for issued general permits. 20.2.72.220(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.

    a.