5698 Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Rules and Regulations 

List of Subjects in 14 CFR Part 314 

Administrative practice and 

procedure, Air transportation, Aviation 

safety, Hazardous materials 

transportation, Investigations, Law 

enforcement, Penalties. 

■ Accordingly, under the authority of 

Section 199(a)(6) of the Workforce 

Investment Act of 1998, Public Law 

105–220, 112 Stat. 1059, the Department 

of Transportation amends 14 CFR 

chapter 2 by removing part 314: 

PART 314—[REMOVED AND 

RESERVED] 

Issued in Washington, DC, on January 27, 

2010. 

Susan Kurland, 

Assistant Secretary for Aviation and 

International Affairs. 

[FR Doc. 2010–2281 Filed 2–3–10; 8:45 am] 

BILLING CODE 4910–9X–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2009–0745; FRL–9110–2] 

Approval and Promulgation of 

Implementation Plans; AlbuquerqueBernalillo County, NM; Excess 

Emissions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

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 Albuquerque Environmental 

Health Department (AEHD) in a letter 

dated September 23, 2009 (the 

September 23, 2009 SIP submittal). The 

September 23, 2009 SIP submittal 

concerns revisions to New Mexico 

Administrative Code Title 20, Chapter 

11, Part 49, Excess Emissions (20.11.49 

NMAC—Excess Emissions) occurring 

during startup, shutdown, and 

malfunction related activities. We are 

approving the September 23, 2009 SIP 

submittal in accordance with the 

requirements of section 110 of the Clean 

Air Act (the Act). 

DATES: This direct final rule will be 

effective April 5, 2010 without further 

notice unless EPA receives relevant 

adverse comments by March 8, 2010. 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: 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. 

• Follow the online instructions for 

submitting comments. 

• EPA Region 6 ‘‘Contact Us’’ Web 

site: http://epa.gov/region6/ 

r6comment.htm. Please click on ‘‘6PD 

(Multimedia)’’ and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by e-mail to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7242. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• 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 http:// 

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 http:// 

www.regulations.gov or e-mail. The 

http://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 http:// 

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 http:// 

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 http:// 

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: 

AEHD, Air Quality Division, One Civic 

Plaza, Albuquerque, NM 87102. 

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 September 23, 2009 SIP 

submittal? 

C. Why are we approving the September 

23, 2009 SIP submittal? 

II. Final Action 

III. Statutory and Executive Order Reviews 


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Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Rules and Regulations 5699 

I. Background 

A. What actions are we taking in this 

document? 

We are approving revisions to 

20.11.49 NMAC—Excess Emissions 

occurring during startup, shutdown, and 

malfunction related activities as 

revisions to the New Mexico SIP for 

Albuquerque-Bernalillo County. We 

received this submittal with a 

September 23, 2009 letter from the 

Governor of New Mexico on behalf of 

the AEHD. 

We are approving the repeal of the 

existing EPA-approved provisions of the 

New Mexico SIP for AlbuquerqueBernalillo County concerning excess 

emissions. The existing provisions were 

titled Breakdown, Abnormal Operating 

Conditions, or Scheduled Maintenance. 

The existing provisions were approved 

into the New Mexico SIP for 

Albuquerque-Bernalillo County on April 

10, 1980 (42 FR 24468) at 40 CFR 

52.1620(c)(11). See Chapter A of our 

Technical Support Document (TSD) 

prepared in conjunction with this 

rulemaking action for more information. 

The September 23, 2009 submittal 

included proposed revisions 20.11.65 

NMAC—Volatile Organic Compounds to 

correct the Part 49-related crossreferences, and was submitted as a 

revision to the New Mexico SIP for 

Albuquerque-Bernalillo County. We are 

approving the proposed revisions to 

20.11.65 NMAC—Volatile Organic 

Compounds for Albuquerque-Bernalillo 

County. See Chapter C of our TSD 

prepared in conjunction with this 

rulemaking action for more information. 

The September 23, 2009 submittal 

included proposed revisions to 20.11.90 

NMAC-Source Surveillance, 

Administration and Enforcement to 

properly reflect repeal of the existing 

Breakdown, Abnormal Operating 

Conditions, or Scheduled Maintenance 

provisions of the 20.11.90 NMAC. The 

revised 20.11.90 NMAC was submitted 

as revisions to the New Mexico SIP for 

Albuquerque-Bernalillo County. We are 

approving proposed revisions to 

20.11.90 NMAC-Source Surveillance, 

Administration and Enforcement for 

Albuquerque-Bernalillo County. See 

Chapter E of our TSD prepared in 

conjunction with this rulemaking action 

for more information. 

The September 23, 2009 submittal 

also included proposed revisions to 

NMAC 20.11.69—Pathological Waste 

Destructors. NMAC 20.11.69— 

Pathological Waste Destructors is not 

currently in the EPA-approved SIP for 

Albuquerque-Bernalillo County. We are 

not taking action on the proposed 

revisions to NMAC 20.11.69 as part of 

today’s rulemaking action. The revisions 

to NMAC 20.11.69 for AlbuquerqueBernalillo County will be handled in a 

separate rulemaking action. 

B. What documents did we use in our 

evaluation of the September 23, 2009 

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 

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 September 

23, 2009 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 September 23, 2009 

SIP submittal are as follows: 

The AEHD’s September 23, 2009 SIP 

submittal adopts an affirmative defense 

approach to address excess emissions. 

This approach is permissible under the 

1999 Policy. 

The AEHD’s September 23, 2009 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 AEHD’s September 23, 2009 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 for 

Albuquerque-Bernalillo County by 

reducing the amount or frequency of 

future potential excess emissions. 

The AEHD’s September 23, 2009 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 (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. See 20.11.49.16(B) NMAC for 

these criteria. 

The AEHD’s September 23, 2009 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 


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5700 Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Rules and Regulations 

asserting an affirmative defense are 

consistent with our guidance documents 

and should be approved. See 

20.11.49.16(A) NMAC for these criteria. 

The AEHD’s September 23, 2009 SIP 

submittal clearly states that AEHD’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. 

Section 20.11.49.16 NMAC of the 

AEHD’s September 23, 2009 SIP 

submittal does not make 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 AEHD’s September 23, 2009 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 20.11.49.16(C) 

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, AEHD may 

require additional information reported 

within the time period specified by the 

department. See 20.11.49.16 NMAC. We 

believe this approach is consistent with 

our guidance documents. 

Section 20.11.49.16 NMAC of the 

AEHD’s September 23, 2009 SIP 

submittal prohibits availability of 

affirmative defense to an owner or 

operator of a source having an excess 

emission when exceeding federallypromulgated emissions limits, to an 

action for an injunctive relief, or when 

exceeding certain federally-approved 

SIP limits which were established by 

taking into account potential startup 

and shutdown emissions. See 

20.11.49.16(D) NMAC. This requirement 

is consistent with our guidance 

documents. 

For a section-by-section evaluation of 

the September 23, 2009 SIP submittal 

see Chapter B of our TSD. For these 

reasons we are approving 20.11.49 

NMAC into New Mexico SIP for 

Albuquerque-Bernalillo County. 

In addition, we are approving the 

repeal and replacement of the existing 

EPA-approved provisions of the New 

Mexico SIP for Albuquerque-Bernalillo 

County concerning excess emissions 

titled Breakdown, Abnormal Operating 

Conditions, or Scheduled Maintenance. 

The existing EPA-approved provisions 

allowed affirmative defense for 

maintenance activities, and stated that 

excess emissions from such activities 

are not violations. The existing EPAapproved provisions did not conform 

with the 1999 Policy. The revised 

20.11.49 NMAC contained in the 

September 23, 2009 SIP submittal 

conforms with the 1999 Policy, and its 

approval will enhance the New Mexico 

SIP for Albuquerque-Bernalillo County. 

As such this repeal and replacement 

meets and complies with section 110(l) 

of the Act. See Chapter A of our TSD. 

II. Final Action 

Today, we are approving revisions to 

New Mexico Administrative Code Title 

20, Chapter 11, Part 49 Excess 

Emissions (20.11.49 NMAC—Excess 

Emissions), 20.11.65 NMAC—Volatile 

Organic Compounds, and 20.11.90 

NMAC—Source Surveillance, 

Administration and Enforcement into 

New Mexico SIP for AlbuquerqueBernalillo County. We are approving the 

repeal of the existing excess emissions 

provisions titled Breakdown, Abnormal 

Operating Conditions, or Scheduled 

Maintenance. We are not taking action 

on revisions to 20.11.69 NMAC— 

Pathological Waste Destructors for 

Albuquerque-Bernalillo County. 

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 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• 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); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• 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.); 

• 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); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• 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; 

• 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); 

• 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 

• 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 April 5, 2010. 

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.) 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Rules and Regulations 5701 

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: January 25, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ 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 et seq. 

Subpart GG—New Mexico 

■ 2. The second table in § 52.1620(c) 

entitled ‘‘EPA Approved Albuquerque/ 

Bernalillo County, NM Regulations’’ is 

amended by: 

■ a. Adding a new entry for ‘‘Part 49 

(20.11.49 NMAC) Excess Emissions’’ in 

numerical order by part number; 

■ b. Revising the existing entry for ‘‘Part 

65 (20.11.65 NMAC) Volatile Organic 

Compounds’’; and 

■ c. Revising the existing entry for ‘‘Part 

90 (20.11.90 NMAC) Administration, 

Enforcement, and Inspection’’. 

The additions and revisions read as 

follows: 

§ 52.1620 Identification of plan. 

* * * * * 

(c) * * * 

EPA APPROVED ALBUQUERQUE/BERNALILLO COUNTY, NM REGULATIONS

State citation Title/subject 

State 

approval/ 

submittal date 

EPA approval date Explanation 

Albuquerque/Bernalillo County, Air Quality Control Regulations 

* * * * * * * 

New Mexico Administrative Code (NMAC) Title 20—Environment Protection, 

Chapter 11—Albuquerque/Bernalillo County Air Quality Control Board 

* * * * * * * 

Part 49 (20.11.49 NMAC) ... Excess Emissions ................... 9/23/09 2/4/10 [Insert FR page number 

where document begins].

* * * * * * * 

Part 65 (20.11.65 NMAC) ... Volatile Organic Compounds .. 9/23/09 2/4/10 [Insert FR page number 

where document begins].

* * * * * * * 

Part 90 (20.11.90 NMAC) ... Source Surveillance, Administration and Enforcement.9/23/09 2/4/10 [Insert FR page number 

where document begins].

* * * * * * * 

* * * * * 

[FR Doc. 2010–2393 Filed 2–3–10; 8:45 am] 

BILLING CODE 6560–50–P 


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