# CITY OF ALBUCUJERCUJE ENVIRONMENTAL HEALTH DEPARTMENT AIR 

# QUALITY DIVISION

Martin

## J. Chavez, Mayor
November 17, 2009

/vIr.JeffRobinson U.S. Environmental Protection Agency, Region 6 - 6PD-R 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733

PO Box 1293 SUBJECT:

DearJeff, Proposed SIP Revision to IncorporateAmendments to 20.11.2 N/vIAC, Fees

Albuquerque

NM 87103

www.cabq.gov Thank you for your comments received on February 3, 2009, 

### in regard to proposed amendments to 20.11.2 N1L-\C, Fecs, as proposed in the November 5, 2008, FirstAmmded Pctitioll 10 hnelld

### 20.11.2 NMAC, Fees, IfltYJrporate Portiolts

## ofAtJlellded20.11.2 l\TMAC, illto 

### tbe l\T 

### clIJJ.V1exico State ImplcflIeJltatioll Plall jOrAirQualiry andjOr a Combined Hearing. Unforrunately, these proposed rule changes have been deferred indefulltely. However, we are planning on addressing your comments when we Ie-draft any future revisions to tlus rule. In addition, through discussions with Catherine Penland of your staff, we have learned that some of the concerns you raised in relation to the proposed draftrule are relevant to the proposed SIP revisions that were already submitted to EPA back in September of 2004 and February of2007 respectively. On November 4, 2009, Ms. Penland reiterated two concerns she has in regard to tlle approval of the two proposed SIP revisions currently being reviewed by her. The first concern is tl1at Subsection C of 20.11.2.3 NwlAC, entitled VariaNce, enacted on July 1, 2001, could be misinterpreted to allow a circumvention of tlle Clean AirAct. This section in question states that: ''Any person may request a timely variance from tlle requirements of 20.11.2 Nl\llAC 

### in accordance with Van·ana Procedures, 20.11.7 N:NIAC, if allowed by federal, state orlocal laws and regulations". This issue raised previously by Ms. Penland in her November 19, 2008, 12:34 Pj\{ e-mail, is that "In cases where you make waivers to fees that would be required under federal rules, you are providing 'director discretion'. Any variance from federal requirements will be disapproved, because such provisions are prohibited under CArt 

### § 110(i) tU1less the 'director discretion' determinations are individually approved into the SIP. EPA's decision on a SIP revision request would be based on whether the proposed revisions would be in compliance \vith CAA 

### § 1100). Therefore, contrast 

### [sic] to Section 110 of tile Clean Air Act. We generally ask that these provisions be removed from proposed rules". The legal interpretation of 20.11.2.2.C NrvlAC by the City ofAlbuquerque, concludes that no "waivers to fees
...required under federal rules" will be granted by the Director of tlle Environmental Health

A/Imqllcrqlle

- Aldhillg Hif/()IJI J706-2006Department, thus obviating the need for "Director discretion". In addition, no variance to 20.11.2 

### NlVL\C, 

### Fees, will be grantedby theEnvironmental HealthDepartment, theAir QualityDivision orthe .AirQuality ControlBoard, unlessitcomplieswith all federal laws, state laws, locallaws and.Air Quality Control Board regulations. In addition, there is restrictive language within the Variance rule itself, at 

### 20.11.7.2.A NlVL\Cwhich states: "20.11.7 N:MAC establishes procedures and criteria for obtaining a variance from a limitation or other requirement (together referred to as "1imitation" in 20.11.7 N:MAC) prescribed under the.Air Quality Control Act, a regulation of the Albuquerque-Bernalillo county air quality control board or apermit condition imposed by the department. However, the board cannot grant a variance from federal 

### requixements in 20.11.8 NlVL\C, 20.11.41 NlVL\C, 20.11.42 NlVL\C, 20.11.60 NlVL\C, 20.11.61 NlVL\C, 20.11.62 NlVL\C, 20.11.63 NlVL\C and 20.11.64 NlVL\C. Granting or approval of a variance by the board does notmean automatic approvalbytheEPA". Therefore, we do not feel that it is possible for a party to circumvent federal rules by requesting a variance from 20.11.2N:MAC byemployingalawoflesser standing (ie. state, county, city). The second concern is that the reduction in cost of the .Air Quality Control Board hearing filing fee charged, as proposedin the 2006 SIP revision, could be construed as arelaxation of the SIP. The fee 

### rule thatis currentlyin tl,e SIPwas approvedby EPA onApril 10, 1980. Thereis not any language to address appeal hearing fees in this approved SIP. However, EPA has stated that: "The currently approved section of the SIP that covers the subject of these submittals is not equivalent at 

### all in fashion or context to this proposal or tlle September 11, 2004 submittal. Nloreover, the SIP approved rule no longer meets the CM requirements. Therefore, EPA is reviewing this proposal using the 

### September 11, 2004 submittal as the baseline, as amended by the 2007 (2006) submittal.
..using these two previous submittals as a measuring stick.
.." The fee in question is cited at Subsection K of 20.11.2.18 N:MAC, entitled

### BoardhearingftliJlgftes, and states that:**'~ny** person who requests ahearing before the board to challenge the issuance of apermit, the terms of a permit or permit modification, the department's refusal to issue a permit, or the department's determination of a source classification or fee calculation for a fugitive dust control permit shall be 

### charged afiling fee of$125.00." This fee was first adoptedby theAir Quality ControlBoardonJanuary 14, 2004, atarate of$1000.00. This proposed SIP revision was submitted to EPA on September 7, 2004 for review: Then after an extensive review by EPA, the .Air Quality Division's Control Strategies Section met with EPA's 

### Air Planning Section and Permitting Section, in Dallas on September 6 and 7, 2006 to discuss this and other SIP issues. One of the agenda items covered at this meeting, was the status of the 2004 submittal of 20.11.2 N:MAC as a proposed revision to the SIP. EPA advised us that this SIP revision would not be approved unless we lowered the fee to a more reasonable amount. Therefore, on 

### November 8, 2006 we proposed that the Air Quality Control Board adopt a fee of $125.00, which is equivalent to the amount charged by the New NIexico Court of Appeals to file an appeal. The 

### Air Quality Control Board adopted this lower fee, whichwas subsequently submitted to EPA on February 5, 2007 forreview; \Ve do not feel tllls fee change makes our program less stringent, and thus should not require a reasonable demonstration that this relaxation of the SIP will not interfere with any applicable requirement, as listed in CM 110(1). However, if EPA rules that this fee change is a SIP relaxation, this should still notimpede the expeditious approval of these two SIP revisions, becauseitis allowable forEPA to approve a SIP relaxation. In order to approve a SIPrelaxation, EPA mustfind pursuantto Section 110(1) that the SIP relaxation does not interfere with any applicable requirements concerning attainment and reasonable further progress, or any other applicable requirement of the Act. Section 

### 110(1), PlanRevisionsstates that: "Eachrevision to an implementationplan submittedbya Stateunder this Act shallbe adoptedby such State after reasonable notice and public hearing. The Admi:nlstrator shall not approve arevision of a plan if the revision would interfere 'with any applicable requirement concerning attainment and



### 2reasonable further progress (as defined in Section 171), or any other applicable requirement of this Act." Tbis fee change has not interfered with any 'applicable requirement concerning attainment and reasonable further progress' nor any other applicable requirement of the Clean AirAct'. Not only is this fee change not a detriment to the air shed, butjust the converse; it allows greater involvementby the community 

### in the permit approval process which makes the program more rigorous; resulting in greaterprotection ofthe air shed and the citizenswho livewithin

### it. Therefore, the 

### .Air Quality Division respectfully requests that these proposed SIP revisions be fully approved atyourearliestconvenience. Thankyou foryour assistance in this matter. Ifyouhave questions orneed clarification, please contact Control Strategies Supervisor, MargaretNieto ofmy staffat (505) 768-2637. Sincerely,

EnvironmentalEngineeringrvlanager 

### Air QualityDivision

cc: JensDeichman, Chair, Albuquerque

- Bernalillo County

### Air Quality ControlBoard John Soladay,ActingDirector, EnvironmentalHealth Department MargaretNieto, ControlStrategies Supervisor,AQD



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