Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Revision to the State Implementation Plan Correcting Sulfur Dioxide Enforceability Deficiencies

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-21-1-6398a; FRL-5103-4]

Approval and Promulgation of Air Quality Implementation Plans;

New Mexico; Revision to the State Implementation Plan Correcting Sulfur

Dioxide Enforceability Deficiencies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a revision to the New Mexico State

Implementation Plan (SIP) to include revisions to New Mexico Air

Quality Control Regulations (AQCR) 602, 651, and 652. These revisions

correct enforceability deficiencies and strengthen the provisions of

the regulations. This action also removes AQCR 605 from the New Mexico

SIP because AQCR 605 has never applied to a facility within the State,

and the State's operating permits and new source review programs would

govern any such sources which would exist in the future.

DATES: This final rule will become effective on January 17, 1995 unless

notice is received by December 19, 1994 that someone wishes to submit

adverse or critical comments. If the effective date is delayed, timely

notice will be published in the Federal Register.

ADDRESSES: Written comments on this action should be addressed to Mr.

Thomas H. Diggs, Chief, Planning Section, at the EPA Regional Office

listed below. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

following locations. The interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least twenty-four hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air ProgramsBranch

(6T-A), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.

U.S. Environmental Protection Agency, Air and Radiation Docketand

Information Center, 401 M Street, SW., Washington, DC 20460.

New Mexico Environment Department, Air Monitoring & Control

Strategy Bureau, 1190 St. Francis Drive, room So. 2100,Santa Fe, New

Mexico 87503.

FOR FURTHER INFORMATION CONTACT: Mr. Mark Sather, Planning Section (6T-

AP), Air Programs Branch, USEPA Region 6, 1445 Ross Avenue, Dallas,

Texas 75202-2733, telephone (214) 665-7258.

SUPPLEMENTARY INFORMATION:

Background

A nation-wide effort is underway to have sulfur dioxide (SO2)

enforceability deficiencies identified and corrected in SIPs before

operating permit programs become effective. Because the operating

permit programs will initially codify underlying SIP requirements, it

is important that the underlying SIP be enforceable so that permits

themselves will be enforceable. The EPA, Region 6, provided a list of

deficiencies in AQCRs 602, 605, 651, and 652 to the State of New Mexico

by cover letter dated March 13, 1991. The Region used the ``SO2

SIP Enforceability Checklist'' when reviewing the New Mexico

regulations for enforceability deficiencies. This checklist, developed

by the EPA, was included as an attachment to the November 28, 1990,

memorandum from Robert Bauman and Rich Biondi to the Air Branch Chiefs.

This memorandum, as well as the EPA, Region 6, March 13, 1991, letter

are included as attachments to the Technical Support Document. The

checklist focused on the following topics: (1) Clarity; (2) averaging

times consistent with protection of the SO2 National Ambient Air

Quality Standards (NAAQS); (3) clear compliance determinations; (4)

continuous emissions monitoring; (5) adequate reporting and

recordkeeping requirements; (6) director's discretion issues; and (7)

stack height issues.

Analysis of State Submission

A. Procedural Background

The Clean Air Act (the Act) requires states to observe certain

procedural requirements in developing implementation plans for

submission to the EPA. Section 110(a)(2) of the Act provides that each

implementation plan submitted by a state must be adopted after

reasonable notice and public hearing. Section 110(l) of the Act

similarly provides that each revision to an implementation plan

submitted by a state under the Act must be adopted by such state after

reasonable notice and public hearing. The EPA also must determine

whether a submittal is complete and therefore warrants further EPA

review and action (see section 110(k)(1) and 57 FR 13565). The EPA's

completeness criteria for SIP submittals are set out at 40 CFR part 51,

appendix V. The EPA attempts to make completeness determinations within

60 days of receiving a submission. However, a submittal is deemed

complete by operation of law if a completeness determination is not

made by the EPA six months after receipt of the submission.

The State of New Mexico held a public hearing onOctober 8, 1993, to

entertain public comment on proposed revisions to AQCRs 602, 605, 651,

and 652 addressing enforceability corrections, including the removal of

AQCR 605 from the New Mexico SIP. There were no written public comments

submitted in conjunction with the public hearing. Following the public

hearing and consideration of hearing comments, the revisions were

adopted by the State and filed with the State Records and Archives

Center on November 17, 1993. The revisions were submitted by the

Governor to the EPA by cover letter dated January 28, 1994.

The SIP revision package was reviewed by the EPA to determine

completeness shortly after its submittal, in accordance with the

completeness criteria set out at 40 CFR part 51, appendix V. A letter

dated March 30, 1994, was forwarded to the Governor indicating the

completeness of the submittal and the next steps to be taken in the

review process.

B. Review of Revisions to AQCRs 602, 605, 651, and 652

The State of New Mexico revised AQCRs 602, 605, 651, and 652 to

correct SO2 enforceability deficiencies and to update the New

Mexico SIP. For a detailed explanation of each change to the

regulations being approved in this action, please refer to the

Technical Support Document. A brief summary of the revisions is

presented in the following paragraphs.

1. AQCR 602-Coal Burning Equipment--Sulfur Dioxide

The amendments to AQCR 602 affect two coal-fired power plants: (1)

The Public Service Company of New Mexico San Juan Plant; and (2) the

Plains Electric Escalante Plant. Language was added to the regulation

to protect the three-hour SO2 NAAQS, and excess emissions

reporting requirements were clarified. The remainder of the revisions

being approved in this action resulted from clarifying, renumbering,

and updating certain sections of the regulation. These changes

represent small and noncontroversial revisions.

2. AQCR 605--Oil Burning Equipment--Sulfur Dioxide

The revision of AQCR 605 consisted of the deletion of this

regulation from the New Mexico SIP. The requirements of AQCR 605 have

never applied to a facility within the State because no existing

facility has ever burned enough oil to trigger the regulation's

emission limit. In the future, major sources within the State which

burn oil on a partial or standby basis will be governed by the upcoming

operating permits program. Sulfur dioxide emissions from oil burning

new sources, both minor and major, will be governed by the new source

review permits program as well as by the Federal new source performance

standards for industrial boilers (40 CFR part 60, subparts Db and Dc).

3. AQCR 651--Sulfuric Acid Production Units--Sulfur Dioxide, Acid Mist

and Visible Emissions

The amendments to AQCR 651 currently do not affect any facilities

since the two existing facilities the regulation applied to, Climax

Chemical in Lea County and the Quivera Mining Ambrosia Lake Plant in

Cibola County, have closed and are not currently in operation. The

State deleted the provisions applicable to new sources because that

language was duplicative of the State's delegated Federal new source

performance standards (NSPS) covering these sources. Language was added

to the regulation to protect the three-hour SO2 NAAQS, and

compliance determination methods were clarified, including the

involvement of the EPA in the approval of equivalent test methods and

alternative means of continuous emission monitoring (CEM) verification.

The State also added a 15-minute cycling time provision for CEM systems

pursuant to 40 CFR part 51, appendix P, section 3.4.2. The remainder of

the revisions to AQCR 651 resulted from correcting typographical

errors, and from clarifying, renumbering, and updating certain

sections.

4. AQCR 652--Nonferrous Smelters--Sulfur

The major revisions to AQCR 652 affect the Phelps Dodge Hidalgo

Copper Smelter at Playas as well as any new smelters. The Phelps Dodge

Copper Smelter at Hurley is only affected by minor revisions to this

regulation. The major revisions to AQCR 652 specify the methods for

calculating and reporting the sulfur removal rate for new smelters in

accordance with a written plan developed cooperatively by the New

Mexico Environment Department and Phelps Dodge Hidalgo, and reviewed

and approved by the EPA. This written plan is being approved in this

Federal Register action. In summary, the plan outlines the requirements

for a monthly physical inventory of sulfur bearing materials plantwide,

and for the manner in which the monthly sulfur recovery is calculated

(dividing the tonnage of sulfur recovered by the tonnage of sulfur

input).

The State also added provisions calling for the use of best

engineering practices regarding fugitive sulfur emissions from new

nonferrous smelters. Compliance determination methods were also

clarified and revised to include the involvement of the EPA in the

approval of equivalent test methods and alternative means of CEM

verification. In addition, reporting and recordkeeping provisions were

added for new nonferrous smelters. The remainder of the revisions to

the regulation resulted from clarifying, renumbering, and updating

certain sections.

Final Action

The EPA is approving a revision to the New Mexico SIP to include

revisions to AQCRs 602, 605, 651, and 652. These revisions correct

enforceability deficiencies and strengthen the provisions of AQCRs 602,

651, and 652, and remove AQCR 605 from the New Mexico SIP as discussed

above. The revisions were filed with the State Records and Archives

Center on November 17, 1993, and were submitted by the Governor to the

EPA by cover letter dated January 28, 1994.

The EPA has reviewed these revisions to the New Mexico SIP and is

approving them as submitted. The EPA is publishing this action without

prior proposal because the Agency views this as a noncontroversial

amendment and anticipates no adverse comments. However, in a separate

document in this Federal Register publication, the EPA is proposing to

approve the SIP revision should adverse or critical comments be filed.

Thus, this action will be effective January 17, 1995 unless, by

December 19, 1994 notice is received that adverse or critical comments

will be submitted.

If such notice is received, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. The EPA will not institute a second comment period on

this action. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective January 17, 1995.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors, and in relation to relevant statutory and

regulatory requirements.

Miscellaneous

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, the EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D, of the

Act do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-state relationship under the Act,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Act forbids the EPA to base its actions concerning SIPs on such grounds

(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42

U.S.C. 7410(a)(2)).

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by January 17, 1995. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule 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)).

Executive Order

The Office of Management and Budget has exempted this action from

review under Executive Order 12866.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Reporting and recordkeeping requirements, Sulfur dioxide.

Note: Incorporation by reference of the SIP for the State of New

Mexico was approved by the Director of the Federal Register on July

1, 1982.

Dated: October 26, 1994.

William B. Hathaway,

Acting Regional Administrator (6A).

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart GG--New Mexico

2. Section 52.1620 is amended by adding paragraph (c)(58) to read

as follows:

Sec. 52.1620 Identification of plan.

* * * * *

(c) * * *

(58) A revision to the New Mexico State Implementation Plan (SIP)

to include revisions to AQCRs 602, 605, 651, and 652, submitted by the

Governor by cover letter dated January 28, 1994. The revision to AQCR

605 consists of removing AQCR 605 from theNew Mexico SIP.

(i) Incorporation by reference.

(A) Revisions to New Mexico Air Quality Control Regulation 602-Coal

Burning Equipment-Sulfur Dioxide, Section A.1, Section A.2, Section

A.3, Section B.1, Section C.1, Section E.2.a, Section E.2.d, Section

F.1.b, Section F.7 and Section G, as filed with the State Records and

Archives Center on November 17, 1993.

(B) Revisions to New Mexico Air Quality Control Regulation 651-

Sulfuric Acid Production Units-Sulfur Dioxide, Acid Mist and Visible

Emissions, Section A, Section B, Section C, Section D, Section E,

Section F, Section G and Section H, as filed with the State Records and

Archives Center on November 17, 1993.

(C) Revisions to New Mexico Air Quality Control Regulation 652-

Nonferrous Smelters-Sulfur, Section B.2, Section C.1, Section D,

Section G, Section H, Section I, Section J, Section K and Section L, as

filed with the State

Records and Archives Center on November 17, 1993.

(ii) Additional material.

(A) The document entitled ``Hidalgo Smelter Sulfur Recovery

Procedures,'' including appendix 1, ``Physical Inventory for Sulfur

Recovery Calculations,'' and appendix 2, ``Monthly Sulfur Recovery

Calculation.''

[FR Doc. 94-28485 Filed 11-17-94; 8:45 am]

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