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[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Proposed Rules]
[Pages 20907-20910]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9099]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0031; FRL-9295-8]

Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Prevention of Significant Deterioration; Greenhouse Gas 
Tailoring Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a revision to the New Mexico State 
Implementation Plan (SIP), submitted by the New Mexico Environment 
Department (NMED) to EPA on December 1, 2010. The proposed SIP revision 
modifies New Mexico's Prevention of Significant Deterioration (PSD) 
program to establish appropriate emission thresholds for determining 
which new stationary sources and modification projects become subject 
to New Mexico's PSD permitting requirements for their greenhouse gas 
(GHG) emissions. Due to the SIP Narrowing Rule, 75 FR 82536, starting 
on January 2, 2011, the approved New Mexico SIP's PSD requirements for 
GHG apply at the thresholds specified in the Tailoring Rule, not at the 
100 or 250 tons per year (tpy) levels otherwise provided under the 
Clean Air Act (CAA or Act), which would overwhelm New Mexico's 
permitting resources. This rule clarifies the applicable thresholds in 
the New Mexico SIP, addresses the flaw discussed in the SIP Narrowing 
Rule, and incorporates State rule changes adopted at the State level 
into the Federally-approved SIP. EPA is proposing approval of New 
Mexico's December 1, 2010, PSD SIP revision because the Agency has made 
the preliminary determination that this PSD SIP revision is in 
accordance with section 110 and part C of the Federal Clean Air Act and 
EPA regulations regarding PSD permitting for GHGs.

DATES: Comments must be received on or before May 16, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2011-0031, by one of the following methods:
    (1) http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    (2) E-mail: Mr. Jeff Robinson at robinson.jeffrey@epa.gov. Please 
also cc the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph below.
    (3) U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
    (4) Fax: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), at 
fax number 214-665-6762.
    (5) Mail: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
    (6) Hand or Courier Delivery: Mr. Jeff Robinson, Chief, Air Permits 
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2011-0031. 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 the 
disclosure of which is restricted by statute. Do not submit information 
through http://www.regulations.gov or e-mail, if you believe that it is 
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which 
means that 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

[[Page 20908]]

include your name and other contact information in the body of your 
comment along with any disk or CD-ROM submitted. 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 and any form of 
encryption and should be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    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 
the disclosure of which 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 
Permits Section (6PD-R), 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. A 15 cent per page fee will be charged for 
making photocopies of documents. On the day of the visit, please check 
in at the EPA Region 6 reception area on the seventh floor at 1445 Ross 
Avenue, Suite 700, Dallas, Texas.
    The State submittals related to this SIP revision, and which are 
part of the EPA docket, are also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:
    New Mexico Environment Department, Air Quality Bureau, 1190 St. 
Francis Drive, Sante Fe, New Mexico, 87502.

FOR FURTHER INFORMATION CONTACT: Ms. Melanie Magee (6PD-R), Air Permits 
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue 
(6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number is 
(214) 665-7161. Ms. Magee can also be reached via electronic mail at 
magee.melanie@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. Summary of New Mexico's submittal
III. What is the background for this proposed action?
IV. What is EPA's analysis of New Mexico's proposed SIP revision?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. Summary of New Mexico's Submittal

    On December 1, 2010, NMED submitted a SIP revision request to EPA 
to establish appropriate emission thresholds for determining which new 
or modified stationary sources become subject to New Mexico's PSD 
permitting requirements for GHG emissions. The submitted revisions to 
the SIP are enacted at 20.2.74.7 New Mexico Air Code (NMAC). Final 
approval of this SIP revision request will put in place the GHG 
emission thresholds for PSD applicability set forth in EPA's Tailoring 
Rule, ensuring that smaller GHG sources emitting less than these 
thresholds are not subject to permitting requirements. Pursuant to 
section 110 of the CAA, EPA is proposing to approve this revision into 
the New Mexico SIP. NMED also submitted revisions to the remainder of 
the New Mexico PSD program at 20.2.74.9, 20.2.74.200, 20.2.74.300, and 
20.2.74.320 NMAC that correctly update internal cross-references to the 
PSD definitions. EPA is also proposing approval of these revisions 
pursuant to section 110 of the CAA.
    Also on December 1, 2010, NMED submitted revisions to the New 
Mexico Title V Operating Permits Program at 20.2.70 NMAC. EPA will 
address these revisions to the New Mexico Title V program at a later 
date and in a separate action on the Title V Program.

III. What is the background for this proposed action?

    This section briefly summarizes EPA's recent GHG-related actions 
that provide the background for today's proposed action. More detailed 
discussion of the background is found in the preambles for those 
actions. In particular, the background is contained in what we call the 
GHG PSD SIP Narrowing Rule,\1\ and in the preambles to the actions 
cited therein.
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    \1\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
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A. GHG-Related Actions

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action on 
the New Mexico SIP. Four of these actions include, as they are commonly 
called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson 
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and 
the ``Tailoring Rule.'' \5\ Taken together and in conjunction with the 
CAA, these actions established regulatory requirements for GHGs emitted 
from new motor vehicles and new motor vehicle engines; determined that 
such regulations, when they took effect on January 2, 2011, subjected 
GHGs emitted from stationary sources to PSD requirements; and limited 
the applicability of PSD

[[Page 20909]]

requirements to GHG sources on a phased-in basis. EPA took this last 
action in the Tailoring Rule, which, more specifically, established 
appropriate GHG emission thresholds for determining the applicability 
of PSD requirements to GHG-emitting sources.
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    \2\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \3\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \5\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    PSD is implemented through the SIP system, and so in December 2010, 
EPA promulgated several rules to implement the new GHG PSD SIP program. 
Recognizing that some States had approved SIP PSD programs that did not 
apply PSD to GHGs, EPA issued a SIP call and, for some of these States, 
a FIP.\6\ Recognizing that other States had approved SIP PSD programs 
that do apply PSD to GHGs, but that do so for sources that emit as 
little as 100 or 250 tpy of GHG, and that do not limit PSD 
applicability to GHGs to the higher thresholds in the Tailoring Rule, 
EPA issued the GHG PSD SIP Narrowing Rule. Under that rule, EPA 
withdrew its approval of the affected SIPs to the extent those SIPs 
covered GHG-emitting sources below the Tailoring Rule thresholds. EPA 
based its action primarily on the ``error correction'' provisions of 
CAA section 110(k)(6).
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    \6\ Specifically, by notice dated December 13, 2010, EPA 
finalized a ``SIP Call'' that would require those States with SIPs 
that have approved PSD programs but do not authorize PSD permitting 
for GHGs to submit a SIP revision providing such authority. ``Action 
To Ensure Authority To Issue Permits Under the Prevention of 
Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR 
77698 (Dec. 13, 2010). EPA has begun making findings of failure to 
submit that would apply in any State unable to submit the required 
SIP revision by its deadline, and finalizing FIPs for such States. 
See, e.g. ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Failure To Submit State 
Implementation Plan Revisions Required for Greenhouse Gases,'' 75 FR 
81874 (December 29, 2010); ``Action To Ensure Authority To Issue 
Permits Under the Prevention of Significant Deterioration Program to 
Sources of Greenhouse Gas Emissions: Federal Implementation Plan,'' 
75 FR 82246 (December 30, 2010). Because New Mexico's SIP already 
authorizes New Mexico to regulate GHGs once GHGs become subject to 
PSD requirements on January 2, 2011, New Mexico is not subject to 
the proposed SIP Call or FIP.
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B. New Mexico's Actions

    On June 24, 2010, New Mexico provided a letter to EPA, in 
accordance with a request to all States from EPA in the Tailoring Rule, 
with confirmation that the State has the authority to regulate GHG in 
its PSD program. The letter confirmed that current New Mexico rules 
require regulating GHGs at the existing 100/250 tpy threshold, rather 
than at the higher thresholds set in the Tailoring Rule because the 
State does not have the authority to apply the meaning of the term 
``subject to regulation'' established in the Tailoring Rule. New Mexico 
also submitted a letter on September 14, 2010, in response to the 
proposed GHG SIP Call again confirming that EPA correctly classified 
New Mexico as a State with authority to apply PSD requirements to GHGs. 
The September 14, 2010, letter also identifies that NMED is pursuing 
rulemaking activity to define the terms ``greenhouse gas'' and 
``subject to regulation''. See the docket for this proposed rulemaking 
for copies of New Mexico's June 24, 2010, and September 14, 2010, 
letters.
    In the SIP Narrowing Rule, published on December 30, 2010, EPA 
withdrew its approval of New Mexico's SIP--among other SIPs--to the 
extent that SIP applies PSD permitting requirements to GHG emissions 
from sources emitting at levels below those set in the Tailoring 
Rule.\7\ As a result, New Mexico's current approved SIP provides the 
State with authority to regulate GHGs, but only at and above the 
Tailoring Rule thresholds; and Federally requires new and modified 
sources to receive a PSD permit based on GHG emissions only if they 
emit at or above the Tailoring Rule thresholds.
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    \7\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December 
30, 2010).
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    New Mexico has amended its State regulations to incorporate the 
Tailoring Rule thresholds, and has submitted the adopted regulations as 
revisions to the New Mexico SIP. EPA's proposed approval of the New 
Mexico revisions will clarify the applicable thresholds in the New 
Mexico SIP.
    The basis for this SIP revision is that limiting PSD applicability 
to GHG sources to the higher thresholds in the Tailoring Rule is 
consistent with the SIP provisions that provide required assurances of 
adequate resources, and thereby addresses the flaw in the SIP that led 
to the SIP Narrowing Rule. Specifically, CAA section 110(a)(2)(E) 
includes as a requirement for SIP approval that States provide 
``necessary assurances that the State * * * will have adequate 
personnel [and] funding * * * to carry out such [SIP].'' In the 
Tailoring Rule, EPA established higher thresholds for PSD applicability 
to GHG-emitting sources on grounds that the States generally did not 
have adequate resources to apply PSD to GHG-emitting sources below the 
Tailoring Rule thresholds,\8\ and no State, including New Mexico, 
asserted that it did have adequate resources to do so.\9\ In the SIP 
Narrowing Rule, EPA found that the affected States, including New 
Mexico, had a flaw in their SIP at the time they submitted their PSD 
programs, which was that the applicability of the PSD programs was 
potentially broader than the resources available to them under their 
SIP.\10\ Accordingly, for each affected State, including New Mexico, 
EPA concluded that EPA's action in approving the SIP was in error, 
under CAA section 110(k)(6), and EPA rescinded its approval to the 
extent the PSD program applies to GHG-emitting sources below the 
Tailoring Rule thresholds.\11\ EPA recommended that States adopt a SIP 
revision to incorporate the Tailoring Rule thresholds, thereby (i) 
assuring that under State law, only sources at or above the Tailoring 
Rule thresholds would be subject to PSD; and (ii) avoiding confusion 
under the Federally-approved SIP by clarifying that the SIP applies to 
only sources at or above the Tailoring Rule thresholds.\12\
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    \8\ Tailoring Rule, 75 FR 31,517/1.
    \9\ SIP Narrowing Rule, 75 FR 82,540/2.
    \10\ Id. at 82,542/3.
    \11\ Id. at 82,544/1.
    \12\ Id. at 82,540/2.
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IV. What is EPA's analysis of New Mexico's proposed SIP revision?

    The regulatory revisions that NMED submitted on December 1, 2010, 
establish thresholds for determining which stationary sources and 
modification projects become subject to permitting requirements for GHG 
emissions under New Mexico's PSD program. Specifically, the submittal 
includes changes to New Mexico's PSD regulations at 20.2.74.7, 
20.2.74.9, 20.2.74.200, 20.2.74.300, and 20.2.74.320 NMAC.\13\
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    \13\ On December 1, 2010, Governor Richardson also submitted 
revisions to the New Mexico Title V program. These revisions were 
not submitted as part of the SIP and NMED did not request SIP 
approval for these regulations. EPA will take separate action on the 
title V program revisions in a separate rulemaking.
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    New Mexico is currently a SIP-approved State for the PSD program, 
and has incorporated EPA's 2002 New Source Review (NSR) reform 
revisions for PSD into its SIP. In letters provided to EPA on June 24, 
2010, and September 14, 2010, New Mexico notified EPA of its 
interpretation that the State currently has the authority to regulate 
GHGs under its PSD regulations. The current New Mexico program (adopted 
prior to the promulgation of EPA's Tailoring Rule) applies to major 
stationary sources (having the potential to emit at least 100 tpy or 
250 tpy or more of a regulated NSR pollutant, depending on the type of 
source) or modifications constructing in

[[Page 20910]]

areas designated attainment or unclassifiable with respect to the 
National Ambient Air Quality Standards.
    The changes to New Mexico's PSD program regulations are 
substantively the same as the amendments to the Federal PSD regulatory 
provisions in EPA's Tailoring Rule. As part of its review of this 
submittal, EPA performed a line-by-line review of New Mexico's proposed 
revision and has determined that they are consistent with the Tailoring 
Rule. EPA's Technical Support Document detailing our analysis of the 
proposed revisions to the New Mexico SIP is available in the docket for 
this action.

V. What action is EPA taking?

    EPA is proposing to approve New Mexico's December 1, 2010, SIP 
submittal, relating to PSD requirements for GHG-emitting sources. 
Specifically, New Mexico's December 1, 2010, proposed SIP revision 
establishes appropriate emissions thresholds for determining PSD 
applicability to new and modified GHG-emitting sources in accordance 
with EPA's Tailoring Rule. EPA has made the determination that this SIP 
submittal is approvable because it is in accordance with the CAA and 
EPA regulations regarding PSD permitting for GHGs.
    If EPA finalizes our approval of New Mexico's changes to its air 
quality regulations to incorporate the appropriate thresholds for GHG 
permitting applicability into New Mexico's SIP, then paragraph (d) in 
Section 52.1634 of 40 CFR part 52, as included in EPA's SIP Narrowing 
Rule--which codifies the limitation of EPA's approval of New Mexico's 
PSD SIP to not cover the applicability of PSD to GHG-emitting sources 
below the Tailoring Rule thresholds--is no longer necessary. In today's 
proposed action, EPA is also proposing to amend Section 52.1634 of 40 
CFR part 52 to remove this unnecessary regulatory language.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Clean Air 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; and
     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).
    In addition, this rule 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, and Reporting and recordkeeping requirements.

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

    Dated: April 6, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011-9099 Filed 4-13-11; 8:45 am]
BILLING CODE 6560-50-P
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