Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County Permitting Program Revisions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-19-1-6069; FRL-4847-7]

Approval and Promulgation of Air Quality Implementation Plans;

New Mexico; Albuquerque/Bernalillo County Permitting Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action approves a revision to the Albuquerque/Bernalillo

County, New Mexico State Implementation Plan (SIP) which includes

Albuquerque/Bernalillo County Regulation Number 20, entitled Authority-

to-Construct Permits, and the Supplement pertaining to general new

source review (NSR) in Albuquerque/Bernalillo County, New Mexico. This

SIP approval action makes federally enforceable the revised City/County

general NSR regulation (outside the boundaries of Indian lands), and

allows the EPA to revoke the construction moratorium for nonattainment

areas in Albuquerque/Bernalillo County. This construction moratorium

was put in place by the Governor of New Mexico on May 20, 1980.

DATES: This final rule will become effective on May 16, 1994, unless

notice is received by April 15, 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 (FR).

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 24 hours before the visiting day.

U.S. Environmental Protection Agency, Region 6, Air Programs Branch

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

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

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

Albuquerque Environmental Health Department, The City of

Albuquerque, One Civic Plaza Northwest, P.O. Box 1293, Albuquerque, New

Mexico 87103.

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) 655-7258.

SUPPLEMENTARY INFORMATION:

Background

Albuquerque/Bernalillo County Regulation 20, a portion of

Albuquerque's complete NSR permitting program, was initially approved

by the EPA on April 10, 1980, at 45 FR 24460, as a part of the 1979 New

Mexico SIP submittal to the EPA. A construction moratorium for

nonattainment areas was put in place by the Governor of New Mexico on

May 20, 1980. On this date, the Governor committed the State of New

Mexico to not issue permits to stationary sources located in

nonattainment areas. This construction ban has continued in

Albuquerque/ Bernalillo County as outlined in 40 CFR 52.1627(a) and

52.1628, in reference to the carbon monoxide nonattainment status of

Bernalillo County, and in reference to the County not having a complete

federally approved NSR permitting program.

The EPA in this action can now revoke the construction ban for

Albuquerque/Bernalillo County because of two developments. The first

development focuses on the FR notice of January 25, 1991 (56 FR 2852).

This notice announced that the 1990 Clean Air Act Amendments (CAAA)

repealed the provisions of section 110(a)(2)(I) of the Clean Air Act as

amended in 1977. The 1977 provisions had required the EPA to impose a

construction moratorium in nonattainment areas that failed to submit

plans meeting all of the requirements of part D of the 1977 Clean Air

Act (CAA). The 1990 CAAA, however, contained a savings clause, new CAA

section 110(n)(3), that preserved certain existing construction

moratoriums (i.e., relating to the establishment of a permit program

and relating to sulfur dioxide (SO2) attainment status).

Therefore, the EPA interpreted the provisions of the 1990 CAAA as

repealing by operation of law, as of the date of enactment of the 1990

CAAA (November 15, 1990), all construction moratoriums that the EPA had

imposed under the 1977 CAA (section 110(a)(2)(I)) for any reason other

than failure to submit an approvable NSR program or failure to

demonstrate timely attainment of the SO2 National Ambient Air

Quality Standards (NAAQS). Albuquerque/Bernalillo County is currently

classified attainment for the SO2 NAAQS, and with the approval of

revised Regulation 20, along with Regulations 29 and 32 (i.e., the

Prevention of Significant Deterioration (29) and Nonattainment NSR (32)

permitting regulations approved in separate FR actions at 58 FR 67330

and 58 FR 67326 (December 21, 1993), respectively), the Albuquerque/

Bernalillo County NSR permitting program has now been brought up to

date and found to be approvable by the EPA. Thus, the construction ban

can be revoked for Albuquerque/Bernalillo County.

Analysis of City/County Submission

A. Procedural Background

The CAA requires States to observe certain procedural requirements

in developing implementation plans for submission to the EPA. Section

110(a)(2) of the CAA provides that each implementation plan submitted

by a State must be adopted after reasonable notice and public hearing

(see also section 110(l) of the CAA). Also, the EPA 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.

After providing adequate notice, the City of Albuquerque held

public hearings on February 10, 1993, and on May 12, 1993, to entertain

public comment on proposed revisions to Regulation 20 and its narrative

supplement, respectively. No public comments were received. Following

the public hearings, Regulation 20 and its narrative supplement were

adopted by the Albuquerque/Bernalillo County Air Quality Control Board

and submitted as a SIP revision to the EPA by cover letter from the

Governor dated July 22, 1993.

The SIP revision was reviewed by the EPA to determine completeness

shortly after its submittal, in accordance with the completeness

criteria referenced above. A letter datedSeptember 10, 1993, 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 Regulation 20

Albuquerque/Bernalillo County filed revisions to Regulation 20 with

the State of New Mexico Records and Archives Center on February 26,

1993. The revisions to Regulation 20 were adopted in order to update

the currently approved Albuquerque/Bernalillo County permit program,

and to allow for revoking the construction ban referenced in 40 CFR

52.1627(a) and 52.1628. Regulation 20 sets forth certain emissions

thresholds requiring a pre-construction permit (e.g., 10 pounds per

hour or 25 tons per year), stipulates required contents of permit

applications, outlines public participation requirements, and addresses

performance testing procedures. It is important to note that the

revisions to Regulation 20 are minor and noncontroversial, resulting in

a clarification of nonattainment area permit requirements, a re-

defining of ``potential emission rate'' as ``pre-controlled emission

rate,'' and other minor clarifications. For further details on both the

requirements and the revisions of Regulation 20, please reference the

Technical Support Document (TSD). Copies of the TSD can be obtained

from the EPA Region 6 office listed above.

Final Action

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

revisions to Albuquerque/Bernalillo County Regulation Number 20,

entitled Authority-to-Construct Permits, as filed with the State

Records and Archives Center on February 26, 1993. The EPA is also

approving the SIP narrative entitled Supplement Pertaining to General

New Source Review; Albuquerque/Bernalillo County, New Mexico; May 12,

1993. This SIP approval action makes federally enforceable the revised

City/County general NSR regulation (outside the boundaries of Indian

lands), and allows the EPA to revoke the construction ban codified at

40 CFR 52.1627(a) and 52.1628.

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. This action will be

effective May 16, 1994, unless, by April 15, 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 two subsequent documents. One document

will withdraw the final action, and another will begin a new rulemaking

by announcing a proposal of the action and establishing a comment

period. If no such comments are received, the public is advised that

this action will be effective [Insert date 60 days from date of

publication].

With respect to all of the statutory changes discussed in this

action, the EPA plans to undertake national rulemaking in the near

future to adopt clarifying changes to its permitting regulations. Upon

final adoption of those regulations, the EPA will call upon States with

approved permitting programs, including Albuquerque, to make

corresponding changes in their SIPs. Based on the above evaluation, the

EPA is approving the revised Albuquerque/Bernalillo County Regulation

20 and its narrative Supplement as a strengthening of the New Mexico

(Albuquerque/Bernalillo County) SIP.

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

CAA 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 CAA,

preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

CAA 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 CAA, petitions for judicial review

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

the appropriate circuit by May 16, 1994. 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

This action has been classified as a table three action by the

Regional Administrator under the procedures published in the Federal

Register on January 19, 1989 (54 FR 2214-2225), as revised by an

October 4, 1993, memorandum from Michael H. Shapiro, Acting Assistant

Administrator for Air and Radiation. A future notice will inform the

general public of these tables. On January 6, 1989, the Office of

Management and Budget (OMB) waived table two and three SIP revisions

(54 FR 2222) from the requirements of section 3 of Executive Order

12291 for a period of two years. The EPA has submitted a request for a

permanent waiver for table two and three SIP revisions. The OMB has

agreed to continue the waiver until such time as it rules on the EPA's

request. This request continues in effect under Executive Order 12866

which superseded Executive Order 12291 onSeptember 30, 1993.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

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: February 28, 1994.

W.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)(54) to read

as follows:

Sec. 52.1620 Identification of plan.

* * * * *

(c) * * *

(54) A revision to the New Mexico SIP addressing the Albuquerque/

Bernalillo County Permitting Program was submitted by the Governor of

New Mexico by cover letter dated July 22, 1993.

(i) Incorporation by reference.

(A) Albuquerque/Bernalillo County Regulation Number 20-Authority-

to-Construct Permits, Section 20.00, ``Purpose;'' Section 20.01,

``Applicability;'' Section 20.02, ``Fees for Permit Application

Review;'' Section 20.03, ``Contents of Applications;'' Section 20.04,

``Public Notice and Participation;'' Section 20.05, ``Permit Decisions

and Appeals;'' Section 20.06, ``Basis for Permit Denial;'' Section

20.07, ``Additional Legal Responsibilities on Applicants;'' Section

20.08, ``Permit Conditions;'' Section 20.09, ``Permit Cancellation;''

Section 20.10, ``Permittee's Notification Obligations to the

Department;'' Section 20.11, ``Performance Testing Following Startup;''

Section 20.12, ``Emergency Permits;'' Section 20.13, ``Nonattainment

Area Requirements;'' Section 20.14, ``Definitions Specific to

Authority-to-Construct Permit Regulations;'' and Table One,

``Significant Ambient Concentrations,'' as filed with the State Records

and Archives Center on February 26, 1993.

(ii) Additional material.

(A) The Supplement Pertaining to General New Source Review in

Albuquerque/Bernalillo County, New Mexico, as approved by the

Albuquerque/Bernalillo County Air Quality Control Board onMay 12, 1993.

3. Section 52.1627 is revised to read as follows:

Sec. 52.1627 Control strategy and regulations: Carbon monoxide.

Part D disapproval. The Bernalillo County carbon monoxide plan is

disapproved for failure to meet the resource requirements of section

172 of the Clean Air Act.

Sec. 52.1628 [Removed and Reserved]

4. Section 52.1628 is removed and reserved.

[FR Doc. 94-5906 Filed 3-15-94; 8:45 am]

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