Clean Air Act Interim Approval of Operating Permits Program; City of Albuquerque Environmental Health Department, Air Pollution Control Division

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NM002; FRL-5136-1]

Clean Air Act Interim Approval of Operating Permits Program; City

of Albuquerque Environmental Health Department, Air Pollution Control

Division

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating interim approval of the operating

permits program submitted by the New Mexico Governor's designee, Mr.

Lawrence Rael, for the City of Albuquerque as Chief Administrative

Officer, and for Bernalillo County as the administrative head of the

Albuquerque/Bernalillo County Operating Permits Program, for the

[[Page 2528]] purpose of complying with Federal requirements for an

approvable program to issue operating permits to all major stationary

sources, and to certain other sources with the exception of Indian

Lands.

DATES: This direct final rule is effective on March 13, 1955 unless

adverse or critical comments are received by February 9, 1995.

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

Jole C. Luehrs, Chief, New Source Review Section, at the EPA Region 6

Office listed. Copies of the City's submittal and other supporting

information used in developing the final rule are available for

inspection during normal business hours at the following locations.

Interested persons wanting to examine these documents should make an

appointment with the appropriate office at least 24 hours before

visiting day.

Environmental Protection Agency, Region 6, Air Programs Branch (6T-

AN), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733. City of

Albuquerque/Bernalillo County, Environmental Health Department, One

Civic Plaza, NW., room 3023, Albuquerque, New Mexico 87103.

FOR FURTHER INFORMATION CONTACT: Adele D. Cardenas, New Source Review

Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue,

suite 700, Dallas, Texas 75202-2733, telephone 214-665-7210.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

In title V of the 1990 Clean Air Act Amendments (sections 501-507

of the Clean Air Act (``the Act'')), the EPA has promulgated rules

which define the minimum elements of an approvable State/local

operating permits program, and the corresponding standards and

procedures by which the EPA will approve, oversee, and withdraw

approval of a State/local operating permits program (see 57 FR 32250

(July 21, 1992)). These rules are codified at 40 Code of Federal

Regulations (CFR) part 70. Title V requires States/local areas to

develop, and submit to EPA, programs for issuing these operating

permits to all major stationary sources and to certain other sources.

The Act requires that States/local areas develop and submit these

programs to the EPA by November 15, 1993, and that the EPA act to

approve or disapprove each program within one year after receiving the

submittal. The EPA's program review occurs pursuant to section 502 of

the Act and the part 70 regulations which together outline criteria for

approval and disapproval. Where a program substantially, but not fully,

meets the requirements of part 70, the EPA may grant the program

interim approval for a period of up to two years. If the EPA has not

fully approved a program by two years after the date of November 15,

1993, or by the end of an interim program, it must establish and

implement a Federal program.

The EPA is publishing this action without prior proposal because

the EPA views this as a noncontroversial action and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing interim approval of the

operating permits program submitted by the City of Albuquerque/

Bernalillo County should adverse or critical comments be filed. Under

the procedures established in the May 10, 1994, Federal Register, this

action will be effective on March 13, 1995 unless, by February 9, 1995

adverse or critical comments are received.

II. Proposed Action and Implications

If the EPA receives such comments, 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. 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 on March 13, 1995.

A. Analysis of City/County Submission

1. Support Materials

Pursuant to section 502(d) of the Act, the State/local area is

required to develop and submit to the Administrator an operating

permits program under State or local law or under an interstate compact

meeting the requirements of title V of the Act. Bernalillo County and

the City of Albuquerque within the County are granted the authority to

administer a local air pollution control program by the New Mexico Air

Quality Control Act. The Air Pollution Control Division (APCD) of the

City of Albuquerque Environmental Health Department requested in the

original submittal, under the signature of Governor Bruce King,

approval with full authority to administer the City of Albuquerque/

Bernalillo County Operating Permits Program, prepared by APCD, in all

areas of Bernalillo County in the State of New Mexico with the

exception of Indian lands.

Pursuant to NMSA 1978 section 74-2-1 et seq. (Repl. Pamph. 1993),

Bernalillo County and the City of Albuquerque have created a joint

local authority, the Albuquerque/Bernalillo County Air Quality Control

Board, to adopt regulations, administer and enforce the State Air

Quality Control Act, the City Joint Air Quality Control Ordinance and

the Air Quality Control Board Regulations within Bernalillo County.

The City of Albuquerque/Bernalillo County submitted their final

operating permits program to the EPA Regional Office on April 4, 1994.

The title V program covering the City and County was signed by the

Governor's designee Mr. Lawrence Rael, for the City of Albuquerque as

Chief Administrative Officer and for Bernalillo County as the

administrative head of the Albuquerque/Bernalillo County Operating

Permits Program, for the purpose of complying with Federal

requirements.

In the APCD operating permits program submittal, the City of

Albuquerque/Bernalillo County does not assert jurisdiction over Indian

lands or reservations. To date, no tribal government in New Mexico has

authority to administer an independent air program in the County of

Bernalillo. Upon promulgation of the Indian air regulations, Indian

tribes will then be able to apply as States, and receive the authority

from the EPA to implement an operating permits program under title V of

the Act. The EPA will, where appropriate, conduct a Federal title V

operating permits program in accordance with forthcoming EPA

regulations, for those Indian tribes which do not apply for treatment

as States under the Act.

The City of Albuquerque/Bernalillo County submittal provided an

operating permits program plan which outlines items in the following

sections: Item II--``Operating Permits Program Description,'' addresses

40 CFR 70.4(b)(1) by describing how APCD intends to carry out its

responsibilities under the part 70 regulations. The program description

addresses the following areas: (A) Organizational structure, (B)

Regulations, guidelines, policies and procedures, and (C) Future

regulatory actions (40 CFR 70.4(b)(3)(i) and (v)). The program

description has been deemed to be appropriate for meeting the

requirement of 40 CFR 70.4(b)(1).

Pursuant to 40 CFR 70.4(b)(3), the Governor or his designee is

required to [[Page 2529]] submit a legal opinion from the Attorney

General (or the attorney for the State or local air pollution control

agency that has independent legal counsel) demonstrating adequate

authority to carry out all aspects of a title V operating permits

program. The Albuquerque City Attorney submitted a Final City

Attorney's Opinion and a First and Second Supplemental City Attorney's

Opinion on behalf of both the City of Albuquerque and Bernalillo

County.

This is because, as explained in the Second Supplemental City

Attorney's Opinion, the City Attorney provides legal advice to the City

pursuant to City Ordinance 1-20-1 R.O. 1974, and the City Attorney,

with the consent of Bernalillo County, is independent counsel for the

joint Albuquerque/Bernalillo County Air Quality Control Board. The

administrative agency for this joint board is the City Environmental

Health Department, as provided in Albuquerque/Bernalillo County AQC

regulations 2.12 and 1.13. The APCD, a subdivision of the City

Environmental Health Department, was given the responsibility of

preparing and implementing the City/County title V program. Therefore,

under the authority of NMSA 1978 section 74-2-1, et seq., and

consistent with his role as independent counsel for the City of

Albuquerque/Bernalillo County Air Quality Control Board and the City

Environmental Health Department, the City Attorney in his First and

Second Supplemental City Attorney's Opinion addressed the required

authority to implement the City/County's title V operating permits

program.

As explained in the Second Supplemental City Attorney's Opinion,

the City Amended Ordinance and the County Amended Ordinance do not

repeat the felony violation language of Air Quality Control (AQC) Act

section 74-2-14.C verbatim. This is because of a New Mexico

Constitutional requirement that felony violations must be initiated and

prosecuted by the State Attorney General or the State District

Attorney. State law requires all violations of City and County

ordinances to be prosecuted in Metropolitan Court, for which the New

Mexico Constitution limits jurisdiction to non-felony cases. Therefore,

the City and County ordinances do not state that the felony violations

detailed in AQC Act section 74-2-14.C are also ordinance violations.

Since State statute requires that felonies committed within the City

and County be initiated and prosecuted by the State Attorney General or

District Attorney, this is not an obstacle to part 70 approval.

The legal opinions submitted by the City Attorney demonstrate

adequate legal authority as required by Federal law and regulation to

implement and enforce a part 70 operating permits program except with

regard to criminal fine authority as discussed below. The City

Attorney, in Albuquerque's Final City Attorney's Opinion, acknowledged

that the EPA had determined that a statutory revision would be required

to render the State's criminal fine authority consistent with the

requirements of 40 CFR 70.11 (a)(3)(ii).

The State statutes and City and County ordinances cited in the

Final City Attorney's Opinion for Albuquerque/Bernalillo County

authorize the imposition of criminal fines in the amounts of only

$1,000 and $5,000 for misdemeanor and felony violations, respectively,

rather than the $10,000 per violation amounts required by 40 CFR

70.11(a)(3)(ii) for knowing violations of applicable requirements,

permit conditions and fee and filing requirements. Further, those

statutes and ordinances do not appear to authorize the fine amounts to

be imposed per day per violation as required by 40 CFR 70.11(a)(3)(ii).

Although these defects in criminal fine authority preclude the EPA from

granting full approval of the City/County's operating permits program

at this time, the EPA may grant interim approval, subject to the State,

City and County obtaining and submitting to the EPA the needed criminal

fine authority within 18 months after the Administrator's approval of

the Albuquerque/Bernalillo County title V program pursuant to 40 CFR

70.4(f)(2). This will need to be accomplished through statutory

revisions by the State of New Mexico and revisions to the City Joint

AQC Board Ordinance and the County Joint AQC Board Ordinance by the

City and County consistent with the amendments to State statute, and

submission of those revisions to the EPA within the prescribed 18-month

period.

As noted in the City Attorney's cover letter accompanying

Albuquerque's First Supplemental City Attorney's Opinion, the State

statute which provides for the delegation of authority from the State

to Albuquerque/Bernalillo County for the City/County's operating

permits program, New Mexico Statutes Annotated (NMSA) 1978 section 74-

2-4, provides that any ordinances adopted by the City/County must be

consistent with the substantive provisions of State statute and provide

for standards and regulations not lower than those required by

regulations adopted by the New Mexico Environmental Improvement Board.

Therefore, as explained in the above-mentioned City Attorney's cover

letter, the City/County rely on the interpretation of the State

Attorney General contained in the Attorney General's Opinion and

Supplemental Attorney General's Opinion submitted with the New Mexico

Operating Permits Program, with respect to a number of issues discussed

below.

The City/County rely on the State's Supplemental Attorney General's

Opinion submitted as part of the New Mexico Operating Permits Program

and contained in the EPA's docket for the New Mexico part 70 program,

in their interpretation of NMSA 1978 section 74-2-14.E with regard to

the underlying criminal fine authority required by 40 CFR

70.11(a)(3)(iii) for tampering and false statement. The Albuquerque

Supplemental City Attorney's Opinion and accompanying cover letter also

reflect that the City and County rely on the requirements of NMSA 1978

section 74-2-4 for their interpretation of the identical City Amended

Ordinance, section 6-16-17.B, and the identical County Amended

Ordinance, section 17.B, consistent with State statute.

The EPA is also relying on the State's interpretation of its

statute, NMSA 1978 section 74-2-14.E set out in New Mexico's

Supplemental Attorney General's Opinion referenced above, as

demonstrating that New Mexico law allows criminal fines of at least

$10,000 per day for each act of tampering and for each false statement

as required by 40 CFR 70.11(a)(3)(iii), and on the City and County

interpretation of their identical provisions in the City and County

Amended Ordinances reflected in Albuquerque's First Supplemental City

Attorney's Opinion consistent with this statutory interpretation as

meeting the Federal requirement.

40 CFR 70.4(b)(3)(i) requires that a State/local agency demonstrate

adequate legal authority to issue permits and assure compliance with

each applicable requirement of 40 CFR part 70. Both the New Mexico

regulation, Air Quality Control Regulation (AQCR) 770.III.C.1.d and the

Albuquerque/Bernalillo County regulation, Air Quality Control (AQC)

41.03(C)(1)(d), state that ``the department may impose conditions

regulating emissions during start-up and shutdown.'' The EPA is relying

on the State's interpretation of this language, discussed in the

State's Supplemental Attorney General's Opinion referenced above, and

the City/County interpretation of their corresponding regulation as set

out in Albuquerque's First Supplemental City Attorney's Opinion, in

interpreting this language to [[Page 2530]] allow the permitting

authority to impose requirements which exceed title V applicable

requirements, but not to waive any title V requirements for title V

sources.

40 CFR 70.4(b)(4) requires the submission of relevant permitting

program documentation not contained in the regulations, such as permit

forms and relevant guidance to assist in the City's implementation of

its permits program. The City of Albuquerque/Bernalillo County address

this requirement in the operating permits program plan part of the

submittal under Section IV--Appendices B, C and H.

2. Regulations and Program Implementation

The City of Albuquerque/Bernalillo County have submitted Air

Quality Control (AQC) regulation No. 41--``Operating Permit

Regulations'' and AQC No. 21--``Fee Regulations,'' for implementing the

City of Albuquerque/Bernalillo County part 70 program as required by 40

CFR 70.4(b)(2). Sufficient evidence of their procedurally correct

adoption was submitted in the final submittal on April 4, 1994. Copies

of all applicable State and local statutes and regulations which

authorize the part 70 program, including those governing State/City

administrative procedures, were submitted with the City's program. The

City of Albuquerque/Bernalillo County also submitted a list of

insignificant activities with the submittal for the EPA's review and

approval with the City/County operating permits program. This list,

which underwent the City/County public participation process during the

operating permits regulation hearing, is being approved by the Regional

Office with this document. The list can be found in the submittal under

Item II--``Operating Permits Program Description,'' Attachment II-3--

``List of Insignificant Activities.''

The City of Albuquerque/Bernalillo County operating permits

regulations followed the State of New Mexico operating permits

regulation AQCR 770. The State's regulations follow part 70 very

closely with a few exceptions. The cross-reference chart submitted with

the State's operating permits program submission can also be used for

reviewing the City/County's program due to the close similarity of the

State and City/County permit regulations. The New Mexico submittal

addresses the cross-reference chart under Item VI--``Various

Provisions'', Attachment VI-1, indicating where each paragraph of the

part 70 regulation is addressed in AQCR 770. The City submitted AQC 41,

the Operating Permits Regulations for the City, as Attachment I in the

Final City Attorney's Opinion. The following requirements, set out in

the EPA's part 70 operating permits program review, are addressed in

the operating permits program plan and in AQC 41--Attachment I of the

City/County's submittal as follows: (A) Applicability criteria,

including any criteria used to determine insignificant activities or

emissions levels (40 CFR 70.4(b)(2)): AQC 41.02, ``List of

Insignificant Activities''; (B) Provisions for continuing permits or

permit terms if a timely and complete application is submitted, but

action is not taken on a request prior to permit expiration (40 CFR

70.4(b)(10)): AQC 41.04(A)(4); (C) Provisions for action on permit

applications (40 CFR 70.4(b)(6)): AQC 41.04(A)(3); (D) Provisions for

permit content (including 40 CFR 70.4(b)(16)): all applicable

requirements: AQC 41.03(C)(1); a fixed term: AQC 41.03(C)(2);

monitoring and related recordkeeping and reporting requirements: AQC

41.03(C)(3) through (5); source compliance requirements: AQC

41.03(C)(7); (E) Operational flexibility provisions (40 CFR

70.4(b)(12)): AQC 41.03(C)(8); (F) Provisions for permit issuance,

renewals, reopenings and revisions, including public, the EPA and

affected State review to be accomplished in an expeditious manner (40

CFR 70.4(b)(13) and (16)): AQC 41.04; and (G) If the permitting

authority allows off-permit changes, provisions assuring compliance

with sections 70.4(b)(14) and (15): AQC 41(C)(9). The AQC regulations

in section 41.04(H) provide that applicants can receive variances from

non-Federal conditions only. The City/County prevent any source from

receiving a variance from any AQC 41 or part 70 requirement. The City

of Albuquerque/Bernalillo County's definition of ``title I

modification'' does not include changes reviewed under a minor new

source preconstruction review program (``minor NSR changes''). The EPA

is currently in the process of determining the proper definition of

that phrase. As further explained below, EPA has solicited public

comment on whether the phrase ``modification under any provision of

title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) should be

interpreted to mean literally any change at a source that would trigger

permitting authority review under regulations approved or promulgated

under Title I of the Act. This would include State preconstruction

review programs approved by EPA as part of the State Implementation

Plan under section 110(a)(2)(C) of the Clean Air Act and regulations

addressing source changes that trigger the application for National

Emission Standard for Hazardous Air Pollutants (NESHAP) established

pursuant to section 112 of the Act prior to the 1990 Amendments.

For the reasons set forth in the EPA's proposed rulemaking to

revise the interim approval criteria of 40 CFR part 70 (59 FR 44572,

August 29, 1994), the EPA believes the phrase ``modification under any

provision of title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) is best

interpreted to mean literally any change at a source that would trigger

permitting authority review under regulations approved or promulgated

under title I of the Act. This would include State/local

preconstruction review programs approved by EPA as part of the State

Implementation Plan under section 110(a)(2)(C) of the Act and

regulations addressing source changes that trigger the application of

NESHAPs established pursuant to section 112 of the Act prior to the

1990 amendments, and would include minor NSR changes not covered under

the City of Albuquerque/Bernalillo County operating permits program's

definition of ``title I modification''.

On August 29, 1994, the EPA proposed revisions to its criteria for

interim approval of State/local operating permits programs under 40 CFR

70.4(d) to allow State/local operating permits programs with a narrower

definition of ``title I modification'' like the City of Albuquerque/

Bernalillo County's to receive interim approval (59 FR 44572). The EPA

also solicited public comment on the proper interpretation of ``title I

modification.'' (59 FR 44572, 44573). The EPA stated that if, after

considering the public comments, it continued to believe that the

phrase ``title I modifications'' should be interpreted as including

minor NSR changes, it would revise the interim approval criteria as

needed to grant States/locals that adopted a narrower definition,

interim approval.

The EPA intended to finalize its revisions to the interim approval

criteria under 40 CFR 70.4(d) before taking final action on part 70

operating permits programs submitted by the State/locals. However, it

will not be possible to delay approval of operating permits programs

until final action has been taken on EPA's proposed revisions to the

part 70 interim approval criteria. This is because publication of the

proposed revisions was delayed until August 29, 1994, and the EPA

received several requests to extend the public comment

[[Page 2531]] period until November 27, 1994.\1\ Given the importance

of the issues in that rulemaking to States/locals, sources and the

public, but mindful of the need to take action quickly, the EPA agreed

to extend the comment period until October 28, 1994 (see 59 FR 52122

(October 14, 1994)). Consequently, final action to revise the interim

approval criteria will not occur before the deadline for EPA action on

State/local operating permits programs such as the City of Albuquerque/

Bernalillo County's, that were submitted on or before November 15,

1993.\2\ The EPA believes it would be inappropriate to delay action on

the City of Albuquerque/Bernalillo County's operating permits program,

perhaps for several months, until final action is taken on the proposed

revisions to the part 70 interim approval criteria. The EPA also

believes it would be inappropriate to grant interim approval to the

City of Albuquerque/Bernalillo County on this issue before final action

is taken to revise the current interim approval criteria of 40 CFR

70.4(b) to provide a legal basis for such an interim approval. Until

the revision to the interim approval criteria is promulgated, the EPA's

choices are to either fully approve or disapprove the narrower ``title

I modification'' definition in States/locals such as the City of

Albuquerque/Bernalillo County. For the reasons set forth below, the EPA

believes that disapproving such operating permits programs at this time

based solely on this issue would be inappropriate.

\1\EPA originally established a 30-day public comment period for

the August 29, 1994, proposal. In response to several requests for

extension, however, EPA agreed to allow an additional thirty days

for public comments. See 59 FR 52122 (October 14, 1994).

\2\Section 502(d) requires, in relevant part, that ``[n]ot later

than 1 year after receiving a program, and after notice and

opportunity for public comment, the Administrator shall approve or

disapprove such program, in whole or in part.''

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First, the EPA has not yet conclusively determined that a narrower

definition of ``title I modification'' is incorrect and thus a basis

for disapproval (or even interim approval). The EPA has received

numerous comments on this issue as a result of the August 29, 1994,

Federal Register document, and the EPA cannot and will not make a final

decision on this issue until it has evaluated all comments on that

proposed rulemaking. Second, the EPA believes that the City of

Albuquerque/Bernalillo County Operating Permits Program should not be

disapproved because the EPA itself has not yet been able to resolve

this issue through rulemaking. Moreover, disapproving operating permits

programs from States/locals such as the City of Albuquerque/Bernalillo

County that submitted their operating permits programs to the EPA on or

before the November 15, 1993, statutory deadline, could lead to the

unfair result that these States/locals would receive disapprovals,

while States/locals which were late in submitting operating permits

programs could take advantage of revised interim approval criteria

should those criteria become final. In effect, States/locals would be

severely penalized for having made timely operating permits program

submissions to the EPA. Finally, disapproval of a State/local operating

permits program for a potential problem that primarily affects permit

revision procedures would delay the issuance of part 70 permits,

hampering State/local/Federal efforts to improve environmental

protection through the operating permits program.

For the reasons mentioned above, the EPA is approving the City of

Albuquerque/Bernalillo County Operating Permits Program's use of the

narrower definition of ``title I modification'' at this time.\3\

However, should the EPA in the interim approval criteria rulemaking

make a final determination that such a narrow definition of ``title I

modification'' is incorrect and that a revision of the interim approval

criteria is warranted, the EPA will propose further action on City of

Albuquerque/Bernalillo County's operating permits program so that the

City/County's definition of ``title I modification'' could become

grounds for interim approval requiring revision prior to the EPA's

granting of full approval to that program.\4\ An operating permits

program like the City of Albuquerque/Bernalillo County's that receives

full approval of its narrower ``title I modification'' definition

pending completion of the EPA's rulemaking must ultimately be placed on

an equal footing with programs of States/locals that receive interim

approval in later months under any revised interim approval criteria

because of the same issue. Converting the full approval on this issue

to an interim approval after the EPA completes its rulemaking would

avoid this inequity. The EPA anticipates that an action to convert the

full approval on the ``title I modification'' issue to an interim

approval would be effected through an additional rulemaking, so as to

ensure that there is adequate notice of the change in approval status.

\3\At the present time, therefore, the EPA is not construing 40

CFR sections 70.7(e)(2)(i)(A)(3) and 70.7(e)(2)(i)(A)(5) to prohibit

Albuquerque/Bernalillo County from allowing minor NSR changes to be

processed as minor permit modifications.

\4\State programs with a narrower ``title I modification''

definition that are acted upon by EPA after an Agency decision that

such a narrower definition is inappropriate would be considered

deficient, but would be eligible for interim approval under revised

40 CFR section 70.4(b).

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3. Permit Fee Demonstration

In AQC 21, the City/County's fee regulation, the City/County board

established fees for criteria air pollutants which are below the

presumptive minimum set out in 40 CFR 70.9(b)(2)(iv). The City/County

regulation allows for a fee of $22.00 per ton for criteria pollutants

based on allowable emissions at major sources as defined in AQC Number

41--``Operating Permits'' regulations. For facilities which are also

major for hazardous air pollutants (HAP), the fees are $250 per ton for

the 189 HAPs listed in title III of the 1990 Amendments. These fees,

when converted using the EPA criteria, result in the collection of an

average of $29.84 per ton for title V sources. The City/County board,

after careful review, determined that these fees would support the

title V permit program costs as required by 40 CFR 70.9(a). The City of

Albuquerque/Bernalillo County explain in their fee demonstration that

they chose this fee structure because it allowed for program costs to

be covered without unduly penalizing any industry, and the fees

generated would meet, but not likely exceed, program costs. The APCD

will conduct a periodic review of the program fee schedule. The City of

Albuquerque/Bernalillo County fee demonstration shows that this fee

schedule meets the requirements for an operating permits program in the

City of Albuquerque and Bernalillo County. The APCD will collect

$292,518 dollars per year to support all applicable part 70 activities

for the City/County. The APCD projects the direct cost to fund the

operation of the title V program to be approximately $195,000 dollars

per year, and the indirect cost to be approximately $97,500. The APCD

anticipates increasing its air quality staff by 6.3 new full time

employees, a total of \1/3\ of the existing air program staff. Any

changes in the fees would need to be made by APCD through the

Albuquerque/Bernalillo County Air Control Board.

4. Provisions Implementing the Requirements of Other Titles of the Act

The City of Albuquerque/Bernalillo County acknowledge that their

request for approval of a part 70 program is also a request for

approval of a program for [[Page 2532]] delegation of unchanged section

112 standards under the authority of section 112(l) as they apply to

part 70 sources. Upon receiving approval under section 112(l), the City

of Albuquerque/Bernalillo County may receive delegation of any new

authority required by section 112 of the Act through the delegation

process.

The City of Albuquerque/Bernalillo County have the option at any

time to request, under section 112(l) of the Act, delegation of section

112 requirements in the form of City regulations which the City/County

demonstrate are equivalent to the corresponding section 112 provisions

promulgated by the EPA. At this time, the City/County plan to use the

mechanism of incorporation by reference to adopt unchanged Federal

section 112 requirements into their regulations.

The radionuclide NESHAP is a section 112 regulation and therefore,

also an applicable requirement under the City/County operating permits

program for part 70 sources. There is not yet a Federal definition of

``major'' for radionuclide sources. Therefore, until a major source

definition for radionuclides is promulgated, no source would be a major

section 112 source solely due to its radionuclide emissions. However, a

radionuclide source may, in the interim, be a major source under part

70 for another reason, thus requiring a part 70 permit. The EPA will

work with the City/County in the development of their radionuclide

program to ensure that permits are issued in a timely manner.

Section 112(g) of the Act requires that, after the effective date

of a permits program under title V, no person may construct,

reconstruct or modify any major source of any HAPs unless the State/

local agency determines that the maximum achievable control technology

(MACT) emission limitation under section 112(g) will be met. Such

determination must be made on a case-by-case basis where no applicable

limitations have been established by the Administrator. During the

transition period from the title V effective date to the date the City/

County have taken appropriate action to implement the final section

112(g) Federal rule, proposed on April 1994 (59 FR 15504), (either by

adoption of the unchanged Federal rule or approval of an existing State

rule under section 112(l)), the City of Albuquerque/Bernalillo County

intend to implement section 112(g) of the Act through the City/County's

preconstruction process using a two-pronged approach.

Immediately upon approval of their operating permits program, the

City/County intend to implement section 112(g) through their existing

preconstruction rule, AQC Regulation 20. This rule was previously

approved by the EPA to implement the preconstruction requirements of

title I of the Act.

The second phase of the City/County's section 112(g) implementation

approach during the transition period is expected to be based on the

City/County board's adoption of the New Mexico State rule, AQCR 755,

into their existing City/County regulations, AQC Regulation 20 and

Regulation 41. The New Mexico State rule, AQCR 755 clarifies the

requirements set out in the proposed Federal section 112(g) rule and

its preamble.

The City/County anticipate that the incorporation of the language

of the State rule into City/County AQC Regulations 20 and 41 will be

effective by mid-March 1995. When final, this incorporation is expected

to enhance the mechanism contained in Albuquerque's existing

preconstruction rule, AQC Regulation 20, for the implementation of

section 112(g). If the New Mexico State rule AQCR 755 is not finally

incorporated by the City/County, or is incorporated with substantial

changes from the State rule as promulgated, the City/County rule, AQC

Regulation 20 will continue to provide authority for the implementation

of Federal section 112(g). After the final Federal section 112(g) rule

is promulgated, the City/County will be required to formally revise

their rules accordingly.

The City of Albuquerque/Bernalillo County commit to appropriately

implementing the existing and future requirements of sections 111, 112,

and 129 of the Act, and all MACT standards promulgated in the future,

in a timely manner. This includes a commitment to implement both

promulgated section 112 Federal standards and section 112 requirements

such as section 112(g) that are not federally promulgated standards.

The City of Albuquerque/Bernalillo County commit to having an acid

rain program in place by April 1995. The EPA acknowledges that this

date, which is later than the January 1, 1995, date set out in the EPA

policy, is a result of the fact that Albuquerque/Bernalillo County will

rely on the State's regulations for the development of their final acid

rain regulations. Therefore, the City/County rule adoption process

requires that they await final action on the State's rules prior to

taking final action on their acid rain rules. This is consistent with

the requirement of NMSA section 74-2-4, that the City/County

requirements be no less stringent than the corresponding State

requirements. The State will meet the January 1995 date as required in

policy drafted by the Acid Rain Division, and the City of Albuquerque/

Bernalillo County will have their acid rain program in place by April

1995. The City/County commit to submitting copies of their draft acid

rain rules, regulations and guidance for review and comment to meet the

Federal implementation date to issue permits by December 1997.

5. Enforcement Provisions

The APCD's operating permits program submittal addressed the

enforcement requirements of 40 CFR 70.4(b)(4)(ii) and 70.4(b)(5) in the

operating permit program plan, Section IV(E)--``Operating Permit

Program Enforcement Procedures.'' A copy of the signed Memorandum of

Understanding between the EPA Region 6 and the APCD is kept in the

Region 6 file room. This document, which is a product of negotiations

between the EPA Region 6 and the APCD, was signed prior to the

submittal date of the operating permits program. The Operating Permits

Program Plan, Sections IV(D), IV(E) and IV(F) of the City/County's

submittal, addresses the following issues: (A) Compliance tracking and

enforcement plan (40 CFR 70.4(b)(4)(ii) and 70.4(b)(5)); (B) Commitment

to submit enforcement information (40 CFR 70.4(b)(9)); and (C)

Enforcement authority (40 CFR 70.4(b)(2) and 70.4(b)(3)(vii)).

6. Technical Support Document

The results of this review are shown in the document entitled

``Technical Support Document,'' which is available in the docket at the

locations noted above. The technical support documentation shows that

all operating permits program requirements of part 70 and relevant

guidance were met by the submittal for the APCD, except with regard to

criminal fine authority.

7. Summary

The City of Albuquerque/Bernalillo County submitted to the EPA, an

operating permits program under a cover letter dated March 25, 1994,

from the New Mexico Governor's designee Mr. Lawrence Rael, for the City

of Albuquerque as Chief Administrative Officer and for Bernalillo

County as the administrative head of the Albuquerque/Bernalillo County

Operating Permits Program. This program was submitted for the purpose

of complying with Federal requirements regarding an operating permits

program. The submittal has adequately addressed all sixteen (16)

elements required for [[Page 2533]] full approval as discussed in part

70, except with regard to criminal fine authority. The City of

Albuquerque/Bernalillo County addressed appropriately all requirements

necessary to receive interim approval of the City/County's operating

permits program pursuant to title V, the 1990 Amendments and 40 CFR

part 70.

B. Options for Approval/Disapproval and Implications

The EPA is promulgating interim approval of the operating permits

program submitted by the City of Albuquerque for Albuquerque/Bernalillo

County on April 4, 1994. Interim approvals under section 502(g) of the

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

that the State/local area is already imposing. The City/County must

make the following changes for this program to receive full approval:

Following the State's correction of the statutory defect in criminal

fine authority, correct the corresponding defects in City and County

Ordinances for Albuquerque and Bernalillo County. In addition to

raising the criminal fine amounts to at least $10,000 for all offenses

listed in 40 CFR 70.11(a)(3)(ii), statutory and ordinance revisions

must provide authority for the imposition of those fines on a per day

per violation basis, as required by 40 CFR 70.11(a)(3)(ii).

Evidence of these statutory and ordinance revisions and their

procedurally correct adoption must be submitted to the EPA within 18

months of the EPA's approval of the Albuquerque/ Bernalillo County

Operating Permits Program. This interim approval, which may not be

renewed, extends for a period of two years. During the interim approval

period, the City of Albuquerque/Bernalillo County are protected from

sanctions for failure to have a program, and the EPA is not obligated

to promulgate a Federal permit program in the City of Albuquerque/

Bernalillo County. Permits issued under a program with interim approval

have full standing with respect to part 70, and the one-year time

period for submittal of permit applications by subject sources begins

upon interim approval, as does the three-year time period for

processing the initial permit applications.

If this interim approval is converted to a disapproval, it will not

affect any existing City/County requirements applicable to small

entities. Federal disapproval of the City of Albuquerque/Bernalillo

County submittal would not affect its local enforceability. Moreover,

the EPA's disapproval of the submittal would not impose a new Federal

requirement. Therefore, the EPA certifies that such a disapproval

action would not have a significant impact on a substantial number of

small entities because it would not remove existing City requirements

or substitute a new Federal requirement.

III. Proposed Rulemaking Action

In this action, the EPA is promulgating interim approval of the

operating permits program submitted by the City of Albuquerque for

Albuquerque/Bernalillo County. The program was submitted to EPA by the

Governor's designee for the City/County for the purpose of complying

with Federal requirements found in title V of the 1990 Amendments, and

in 40 CFR part 70, which mandate that States/local areas develop, and

submit to the EPA, programs for issuing operating permits to all major

stationary sources, and to certain other sources with the exception of

Indian Lands.

Requirements for title V approval, specified in 40 CFR 70.4(b),

encompass section 112(l)(5) requirements for approval of a program for

delegation of Federal section 112 standards as they apply to part 70

sources. Section 112(l)(5) requires that the State/local program

contain adequate authorities, adequate resources for implementation,

and an expeditious compliance schedule, which are also requirements

under part 70. Therefore, as part of this interim approval, the EPA is

also promulgating approval of the City/County program under section

112(l)(5) and 40 CFR 63.91 for the purpose of the City/County receiving

delegation of section 112 standards that are unchanged from Federal

standards as promulgated. This program for delegations only applies to

sources covered by the part 70 program.

The EPA's policy is to apply sanctions to State/local programs if

the Governor or his designee fails to submit a corrected program for

full approval within 18 months after the due date for the submittal. If

the City/County fail to submit a complete corrected program for full

approval by June 10, 1996, the EPA will start an 18-month clock for

mandatory sanctions. If the City/County program fail to submit a

complete program before the expiration of that 18-month period, the EPA

would impose sanctions. If the EPA disapproves the City/County's

corrective program, and has not determined that the City/County have

corrected the deficiency within 18 months after the disapproval, then

the EPA must impose mandatory sanctions. In either case, if the City/

County have not come into compliance, EPA applies the first sanction.

In addition, discretionary sanctions may be applied where warranted any

time after the end of the interim approval period if the City/County

have not submitted a complete corrective program or EPA has disapproved

a corrective program. If the EPA has not granted full approval to the

City/County program by January 10, 1997, the EPA must promulgate,

administer, and enforce a Federal operating permits program for the

City of Albuquerque Environmental Health Department, Air Pollution

Control Division.

The EPA has reviewed this submittal of the Albuquerque/ Bernalillo

County Operating Permits Program and is promulgating interim approval.

Certain defects in the State's statutory criminal fine authority and

the City/County ordinances preclude the EPA from granting full approval

of the City/County's operating permits program. The EPA is promulgating

interim approval of the City/County operating permits program, and the

State, City and County will need to obtain the needed criminal fine

authority within 18 months after the Administrator's approval of this

program pursuant to 40 CFR 70.4 in order for the City of Albuquerque/

Bernalillo County's title V program to be eligible for full approval.

IV. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on all aspects of this final rule.

Copies of the City/County's submittal and other information relied upon

for the proposed interim approval are contained in a docket maintained

at the EPA Regional Office. The docket is an organized and complete

file of all the information submitted to, or otherwise considered by,

the EPA in the development of this proposed rulemaking. The principal

purposes of the docket are:

(1) to allow interested parties a means to identify and locate

documents so that they can effectively participate in the rulemaking

process, and

(2) to serve as the record in case of judicial review. The EPA will

consider any comments received by February 9, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

C. Regulatory Flexibility Act

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

EPA must prepare a regulatory flexibility analysis

[[Page 2534]] 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.

Operating permits program approvals under section 502 of the Act do

not create any new requirements, but simply approve requirements that

the City/County are already imposing. Therefore, because the Federal

operating permits program 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/local action. The Act forbids the EPA from

basing its actions concerning operating permits programs on such

grounds (Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct

1976); 42 U.S.C. 7410(a)(2)).

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedures,

Intergovernmental relations, Operating permits.

Dated: December 23, 1994.

A. Stanley Meiburg,

Acting Regional Administrator (6A).

40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. Appendix A to part 70 is amended by adding paragraph (b) to the

entry for New Mexico to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

New Mexico

* * * * *

(b) City of Albuquerque Environmental Health Department, Air

Pollution Control Division: submitted on April 4, 1994; effective on

March 13, 1995; interim approval expires August 10, 1996.

* * * * *

[FR Doc. 95-547 Filed 1-9-95; 8:45 am]

BILLING CODE 6560-50-P