CITY OF ALBUCUJERCUJE

ENVIRONMENTAL HEALTH DEPARTMENT

AIR QUALITY DIVISION

Martin J. Chavez, Mayor

November 17, 2009

/vIr. Jeff Robinson

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 Incorporate Amendments 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, First Ammded Pctitioll 10 hnelld 20.11.2

NMAC, Fees, IfltYJrporate Portiolts of AtJlellded 20.11.2 l\TMAC, illto tbe l\TclIJ J.V1exico State ImplcflIeJltatioll Plall

jOr Air Qualiry and jOr 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 draft rule are relevant to

the proposed SIP revisions that were already submitted to EPA back in September of 2004 and

February of 2007 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 Air Act. 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 or local 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 of Albuquerque, 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 J 706-2006
Department, thus obviating the need for "Director discretion". In addition, no variance to 20.11.2

NlVL\C, Fees, will be granted by the Environmental Health Department, the Air Quality Division or the

.Air Quality Control Board, unless it complies with all federal laws, state laws, local laws and.Air Quality

Control Board regulations. In addition, there is restrictive language within the Variance rule itself, at

20.11.7.2.A NlVL\C which 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 a permit

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 not mean automatic approval by the EPA".

Therefore, we do not feel that it is possible for a party to circumvent federal rules by requesting a

variance from 20.11.2 N:MAC by employing a law of lesser 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 proposed in the 2006 SIP revision, could be construed as a relaxation of the SIP. The fee

rule that is currently in tl,e SIP was approved by EPA on April 10, 1980. There is 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 Board hearingftliJlgftes, and states that:

'~ny person who requests a hearing before the board to challenge the issuance of a permit, 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 a filing fee of $125.00."

This fee was first adopted by the Air Quality Control Board on January 14, 2004, at a rate 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, which was subsequently submitted to EPA on February

5, 2007 for review;

\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 not impede the expeditious approval of these two SIP revisions, because it is allowable

for EPA to approve a SIP relaxation. In order to approve a SIP relaxation, EPA must find pursuant to

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), Plan Revisions states that:

"Each revision to an implementation plan submitted by a State under this Act shall be adopted by such

State after reasonable notice and public hearing. The Admi:nlstrator shall not approve a revision of a

plan if the revision would interfere 'with any applicable requirement concerning attainment and

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reasonable 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 Air Act'. Not only is

this fee change not a detriment to the air shed, but just the converse; it allows greater involvement by

the community in the permit approval process which makes the program more rigorous; resulting in

greater protection of the air shed and the citizens who live within it.

Therefore, the .Air Quality Division respectfully requests that these proposed SIP revisions be fully

approved at your earliest convenience.

Thank you for your assistance in this matter. If you have questions or need clarification, please contact

Control Strategies Supervisor, Margaret Nieto of my staff at (505) 768-2637.

Sincerely,

Environmental Engineering rvlanager

Air Quality Division

cc: Jens Deichman, Chair,

Albuquerque - Bernalillo County Air Quality Control Board

John Soladay, Acting Director, Environmental Health Department

Margaret Nieto, Control Strategies Supervisor, AQD

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