[Federal Register Volume 74, Number 176 (Monday, September 14, 2009)]
[Rules and Regulations]
[Pages 46910-46914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21827]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0815; FRL-8954-7]


Approval and Promulgation of Implementation Plans; New Mexico; 
Excess Emissions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving revisions to the New Mexico State 
Implementation Plan (SIP) submitted by the Governor of New Mexico on 
behalf of the New Mexico Environment Department (NMED) in a letter 
dated October 7, 2008 (the October 7, 2008 SIP submittal). The October 
7, 2008 SIP submittal concerns revisions to New Mexico Administrative 
Code Title 20, Chapter 2, Part 7 Excess Emissions (20.2.7 NMAC--Excess 
Emissions) occurring during startup, shutdown, and malfunction related 
activities. We are approving the October 7, 2008 SIP submittal because 
the revisions to 20.2.7 NMAC are consistent with the Clean Air Act (the 
Act). This action is in accordance with section 110 of the Act.

DATES: This direct final rule will be effective November 13, 2009 
without

[[Page 46911]]

further notice unless EPA receives relevant adverse comments by October 
14, 2009. If adverse comments are received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0815, by one of the following methods:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov.
    <bullet> Follow the online instructions for submitting comments.
    <bullet> EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select 
``Air'' before submitting comments.
    <bullet> E-mail: Mr. Guy Donaldson at <a href="/cdn-cgi/l/email-protection#45212a2b242921362a2b6b22303c052035246b222a33"><span class="__cf_email__" data-cfemail="1a7e75747b767e697574347d6f635a7f6a7b347d756c">[email protected]</span></a>. Please 
also send a copy by e-mail to the person listed in the FOR FURTHER 
INFORMATION CONTACT section below.
    <bullet> Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7242.
    <bullet> Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
    <bullet> Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not 
on legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Docket No. EPA-R06-OAR-2008-
0815. The EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov 
your e-mail 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 and with any disk or CD-ROM you submit. 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, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure 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 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), 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 the FOR FURTHER INFORMATION 
CONTACT paragraph below to make an appointment. If possible, please 
make the appointment at least two working days in advance of your 
visit. There will be a fee of 15 cents per page for making photocopies 
of documents. On the day of the visit, please check in at the EPA 
Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection during 
official business hours, by appointment, at the State Air Agency listed 
below during official business hours by appointment: NMED, Air Quality 
Bureau, 1301 Siler Road, Building B, Santa Fe, NM 87507.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section 
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, 
Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6691, fax 
(214) 665-7263, e-mail address shar.alan @epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to EPA.

Outline

I. Background
    A. What action are we taking in this document?
    B. What documents did we use in our evaluation of the October 7, 
2008 SIP submittal?
    C. Why are we approving the October 7, 2008 SIP submittal?
II. Final Action
III. Statutory and Executive Order Reviews

I. Background

A. What action are we taking in this document?

    We are approving revisions to 20.2.7 NMAC--Excess Emissions 
occurring during startup, shutdown, and malfunction related activities 
as revisions to the New Mexico SIP. We received this submittal with an 
October 7, 2008 letter from the Governor of New Mexico on behalf of the 
NMED.
    We are approving the repeal of the existing EPA-approved 20.2.7--
Excess Emissions, and replacing it with the revised version of 20.2.7 
NMAC as contained in the October 7, 2008 SIP submittal. The existing 
20.2.7 NMAC--Excess Emissions rule was approved by EPA on September 26, 
1997 (62 FR 50518) at 40 CFR 52.1620(c)(66). See Chapter A of our 
Technical Support Document (TSD) prepared in conjunction with this 
rulemaking action for more information. The TSD is a part of the docket 
and available for public review.
    The October 7, 2008 submittal also included proposed revisions to 
NMAC 20.2.70--Operating Permits. We are not taking action on those 
revisions as part of today's rulemaking action. The revisions to NMAC 
20.2.70 are part of the Title V program approval, and will be handled 
in a separate rulemaking action.

B. What documents did we use in our evaluation of the October 7, 2008 
SIP submittal?

    The EPA's interpretation of the Act on excess emissions occurring 
during periods of startup, shutdown, and malfunction is set forth in 
the following documents: A memorandum dated September 28, 1982, from 
Kathleen M. Bennett, Assistant Administrator for Air, Noise, and 
Radiation, entitled ``Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions'' (1982 Policy); EPA's 
clarification to the above policy memorandum dated February 15, 1983, 
from Kathleen M. Bennett, Assistant Administrator for Air, Noise, and 
Radiation (1983 Policy); EPA's policy memorandum reaffirming and 
supplementing the above policy, dated September 20, 1999, from Steven 
A. Herman, Assistant Administrator for Enforcement and Compliance 
Assurance and Robert Perciasepe, Assistant

[[Page 46912]]

Administrator for Air and Radiation, entitled ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown'' (1999 Policy); EPA's final rule for Utah's sulfur 
dioxide control strategy (Kennecott Copper), April 27, 1977 (42 FR 
21472); EPA's final rule for Idaho's sulfur dioxide control strategy, 
November 8, 1977 (42 FR 58171); and the latest clarification of EPA's 
policy issued on December 5, 2001 (2001 Policy). You can find the 2001 
Policy at: http://www.epa.gov/ttn/oarpg/t1pgm.html (URL dating July 22, 
2008). The EPA's interpretation of the Act related to exclusions from 
emission limitations for sources in certain startup, shutdown, or 
malfunction situations was upheld by the United States Court of Appeals 
for the Sixth Circuit in Michigan Mfrs. Ass'n v. Browner, 230 F.3d 181 
(6th Cir. 2000).

C. Why are we approving the October 7, 2008 SIP submittal?

    Under section 110(a) of the Act, EPA views all excess emissions as 
violations of the applicable emission limitation because excess 
emissions have the potential to interfere with attainment and 
maintenance of the National Ambient Air Quality Standards, or with the 
protection of Prevention of Significant Deterioration increments. 
However, EPA recognizes that imposition of a penalty for sudden and 
unavoidable malfunctions, startups or shutdowns caused by circumstances 
entirely beyond the control of the owner or operator may not be 
appropriate. The EPA has provided guidance on two approaches for 
addressing excess emissions, the use of enforcement discretion and 
providing an affirmative defense to actions for civil penalties. 
Neither approach waives liability or reporting requirements for the 
violation. Excess emissions occurring during periods of startup, 
shutdown, maintenance, and malfunction must be included in determining 
compliance with SIP emission limitations. States are not required to 
provide an affirmative defense approach, but if they choose to do so, 
EPA will evaluate the State's SIP rules for consistency with our policy 
and guidance documents listed in section B of this document. Our 
reasons for approval of the October 7, 2008 SIP submittal are as 
follows:
    The NMED's October 7, 2008 SIP submittal adopts an affirmative 
defense approach to address excess emissions. This approach is 
permissible under the 1999 Policy.
    The NMED's October 7, 2008 SIP submittal clearly states that 
operation resulting in an excess emission is a violation of the air 
quality regulation or permit, and may be subject to potential 
enforcement action. This statement is consistent with the 1999 Policy.
    The NMED's October 7, 2008 SIP submittal adequately sets forth 
notification and reporting requirements for the owner or operator of a 
source having an excess emission. We believe that notification and 
reporting, including implementation of corrective action(s) when 
needed, of excess emissions will assist with the management of excess 
emissions and will enhance the New Mexico SIP by reducing the amount or 
frequency of future potential excess emissions.
    The NMED's October 7, 2008 SIP submittal contains criteria to be 
considered when asserting an affirmative defense for an excess emission 
during startup or shutdown to claims for a civil penalty (not 
injunctive relief) that are similar, if not identical, to those in the 
1999 Policy. We believe the criteria for asserting an affirmative 
defense are consistent with our guidance documents and should be 
approved.
    The NMED's October 7, 2008 SIP submittal contains criteria to be 
considered when asserting affirmative defense for an excess emission 
during a malfunction to claims for a civil penalty (but not the 
injunctive relief) that are similar, if not identical, to those in the 
1999 Policy. We believe the criteria for asserting an affirmative 
defense are consistent with our guidance documents and should be 
approved.
    The NMED's October 7, 2008 SIP submittal clearly states that NMED's 
determinations concerning an owner or operator's assertion of the 
affirmative defense shall not preclude EPA or citizens' enforcement 
authority under the Act. This statement is consistent with 42 U.S.C. 
7413 and 7604.
    Neither section 20.2.7.111 NMAC nor section 20.2.7.112 NMAC of the 
October 7, 2008 SIP submittal makes an affirmative defense available to 
an owner or operator of a source having an excess emission due to 
maintenance related activities. We believe that maintenance activities 
are predictable events that are subject to planning to minimize 
releases, unlike malfunctions or upsets, which are sudden, unavoidable 
or beyond the control of owner or operator. The owner or operator of a 
source should be able to plan maintenance that might otherwise lead to 
excess emissions to coincide with maintenance of production equipment 
or other facility shutdowns. This position is consistent with EPA's 
interpretation of section 110 of the Act, and with our guidance 
documents.
    The NMED's October 7, 2008 SIP submittal narrowly defines an 
emergency situation. An owner and operator may assert an affirmative 
defense for an emergency if certain criteria are met. See 
20.2.7.113(B)(1) through (4) NMAC for these criteria. In any 
enforcement proceeding, the owner or operator seeking to establish the 
occurrence of an emergency has the burden of proof. In addition, NMED 
may require additional information reported within the time period 
specified by the department. See 20.2.7.113(C) and (D) NMAC. We believe 
this approach is consistent with our guidance documents.
    For a section-by-section evaluation of the October 7, 2008 SIP 
submittal see Chapter B of our TSD. The TSD is a part of the docket and 
available for public review. For these reasons we are approving 20.2.7 
NMAC into New Mexico SIP.
    In addition, we are approving the repeal and replacement of the 
existing EPA-approved 20.2.7 NMAC Excess Emissions rule with the 
revised 20.2.7 NMAC contained in the October 7, 2008 SIP submittal. The 
existing EPA-approved 20.2.7 NMAC Excess Emissions rule provided for 
frequent startup and shutdowns, and exempted certain facilities from 
notification requirements. See Chapter A of the TSD. The existing EPA-
approved 20.2.7 NMAC Excess Emissions rule did not conform with the 
1999 Policy. The revised 20.2.7 NMAC contained in the October 7, 2008 
SIP submittal conforms with the 1999 Policy, and its approval will 
enhance the New Mexico SIP. See Chapter B of the TSD.

II. Final Action

    Today, we are approving revisions to New Mexico Administrative Code 
Title 20, Chapter 2, Part 7 Excess Emissions (20.2.7 NMAC--Excess 
Emissions) occurring during startup, shutdown, and malfunction related 
activities into New Mexico SIP. We are approving the repeal of the 
existing 20.2.7 NMAC, and replacing it with the revised 20.2.7 NMAC 
contained in the October 7, 2008 SIP submittal.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely

[[Page 46913]]

approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act;
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994);
    <bullet> Does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
is not approved to apply in Indian country located in the state, and 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law; and
    <bullet> Is not a ``major rule'' as defined by 5 U.S.C. 804(2) 
under the Congressional Review Act, 5 U.S.C. 801 et seq., added by the 
Small Business Regulatory Enforcement Fairness Act of 1996. A major 
rule cannot take effect until 60 days after it is published in the 
Federal Register. This action is not a ``major rule.'' Under section 
307(b)(1) of the Clean Air Act, petitions for judicial review of this 
action must be filed in the United States Court of Appeals for the 
appropriate circuit by November 13, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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) of the Act.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
oxide, Reporting and recordkeeping requirements, Ozone, Volatile 
organic compounds.

    Dated: August 28, 2009.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart GG--New Mexico

0
2. The table in Sec.  52.1620(c) entitled ``EPA Approved New Mexico 
Regulations'' is amended by revising the entry for ``Part 7'' to read 
as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                                       EPA Approved New Mexico Regulations
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                                                     State approval/
         State citation             Title/subject       submittal       EPA approval date          Comments
                                                          date
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                    New Mexico Administrative Code (NMAC) Title 20--Environmental Protection
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                                             Chapter 2--Air Quality
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Part 7.........................  Excess Emissions..       7/10/2008  9/14/2009 [Insert FR
                                                                      page number where
                                                                      document begins].
 
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[FR Doc. E9-21827 Filed 9-11-09; 8:45 am]
BILLING CODE 6560-50-P


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