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# .. """D**"-'~** {? , . "-J ,.._.•. <: <0 W m -J :z 

### November 6,2009

Dr. Alfredo Armendariz Regional Administrator U.S. Environmental Protection Agency, Region VI 1445**Ros~** 

### Aveuue, Suite 1200 

### Dallas, TX 75202-2733 Bill Richardson Governor



### Subject: Request for Approval ofRevision to the New Mexico State Implementation Plan for Air Quality (SIP) by amending 20.11.8 NMAC, Ambient Air Quality Standards 

### DearDr. Armendariz: I am writing to request approval ofthe attached documentation which will serve as the basis for a revision to the New Mexico State Implementation Plan for air quality (SIP). Specifically, I am submitting documentation for the proposed revision to the SIP to incorporate amendments to the regulation, 20.11.8 NMAC, AmbientAir Quality Standards, 

### which applies to Bernalillo County, New Mexico. The Albuquerque-Bernalillo County Air Quality Control Board (AirBoard) adopted these amendments on August 12,2009, after a public commentperiod and subsequent public hearing held on the same night. I believe that the submitted materials provide adequate documentation to supportthe requested SIP revision.

To facilitate yourreview and processing, the following materials are enclosed: I) 

### SIP Completeness Checklistpursuantto 40 CPR 51

" . r c, 

### 2) Hearing record, including transcript and exhibits**~~** z <=> 

### 3) Comments and responses <: en 

### ......,== CD t---;,- 

### 4) The amended regulation adopted by theAir Board I (.. 0 ::::i**0~'** 

# ,...**.~** 

### :::: 

# '- P1 

### 5) Other supporting documentation c· u:> 

## rn -> 

### 0 C!t C> Z -J



### State Capitol • Room400 • SantaFe, New Mexico 87501 • 505-476-2200 • www.govemor.stale.nm.us

### Page 2

Your favorable consideration ofthis request is appreciated. Ifyou have any questions, please contact John Soladay, Director ofthe Albuquerque Environmental Health Department (EHD), at (505) 768-2615. Sincerely,

Bill Richardson Governor ofNew Mexico BRifl

cc: John Soladay, Director, Albuquerque EHD Mary Uhl, Chief, Air Quality Bureau, NM Environment Department Isreal Tavarez, Environmental Engineering Manager, Air Quality Division Margaret Nieto, Control Strategies Section Supervisor, AQD Enclosures

# SUBMITTAL LETTER FROM EHD DIRECTOR TO GOVERNOR

:';.-- ;;;--

< •• C-_ :' "-..:.-

- ;;;= C'::i

_ .. 

### ...

# CITY OF ALBUQYERQYE ENVIRONMENTAL HEALTH DEPARTMENT

Martin]. Chavez,Mayor

November 2, 2009

Honorable Bill Richardson Governor State of New Mexico Governor's Office Capitol Building, 4th Floor Santa Fe, NM 87503

PO Box 1293

Albuquerque SUBJECT: Endorsement of request for the Environmental Protection Agency to consider a revision to the State Implementation Plan for Air Quality by amending 20.11.8 NMAC, AmbientAirQlIali!J Standards

NM 87103

www.cabq,gov Dear Governor Richardson, I am writing to request your assistance in submitting the attached documentation to the EPA which serves as the basis for a revision to the New Mexico State Implementation Plan for Air Quality (SIP). Specifically, I am asking for you to submit the attached documentation as a proposed SIP revision to incorporate an amended regulation, 20.11.8 NMAC, Ambient Air QlIali!J Standards, adopted pursuant to Title I of the Clean Air Act Amendments of 1990. If you agree to submission of the proposed SIP revision, the submittal should be forwarded to the EPA with arequest for their approval byway ofpublication in the FederalRegister. The Albuquerque-Bernalillo County Air Quality Control Board (AirBoard) adopted these amendments on August 12, 2009, after a public comment period and subsequent public hearing held on the same night. I believe that the submitted materials provide adequate documentation to support the requested SIP revision.- 2 - November2, 2009 To facilitate your review andprocessing, the following materials are enclosed: 1) SIP Completeness Checklistpursuant to 40 CFR 51, Appendix V 2) Hearing record, including transcripts and exhibits 3) Public comments andresponses 4) The proposed SIP revision for 20.11.8 NMAC,AmbientAirQuafityStandards adopted by the Air Board. 5) Other supporting documentation Thankyou for your assistance in this matter. If you have questions or need clarification, please contact me or Margaret Nieto of my staff at (505) 768-2637.

tal Health Department

cc: Mr. Jens Deichmann, Chair, Albuquerque

- Bernalillo County Air Quality Control Board Isreal Tavarez, Environmental Engineeting Manager, Air Quality Division MargaretNieto, Control Strategies Supervisor, AQD

Enclosures

### -l\IC\)**;;·'I~_."',** '\;, 'I.... • 

### ,.,\\/CO

" ,;, . , '.,**~_** ,'., lJ.::'

..

## REVISI()~,T~Ttw**~\\S&ICO** STATE IMPLEMENTATION PLAI;I

. 

## 1 PERTA#lI'rNt'.tto 20}.!;:8¥WC, AMBIENT AIR

## QUALffJS~HJlJiS'9· 0

•• r",',',; i ,,1\ ,

## .?~C .', "'''Tln'' r-on-g .**il~'Jt\",** uf' or LJ 

### October 2009 "

... ,**-..-~\,** II

_ 

### , CPO-I\ SIP COMPLETENESS CHECKLIST forregularprocessing (per40 CFR 51 Appendix V) 2.1 Administrative Materials 

### (a) A formal letter ofsubmittal from the Governor or his designee, requesting EPA approval ofthe plan orrevision thereof(hereafter "the plan"). X 

### YES NO N/A This package is being sent to EPA with a formal submittaii'letter from the Governorofthe State ofNew Mexico. (b) 

### Evidencethatthe Statehas adoptedtheplaninthe Statecodeorbodyofregulations; orissuedthepermit, order, consentagreement(hereafter "document")infinal form. This evidence shall include the date ofadoption or final issuance as well as the effective date ofthe plan, ifdifferentfrom the adoption/issuance date. X 

### YES NO N/A The amended regulation, 20.11.8 NMAC, AmbientAir Quality Standards, 

### was adoptedAugust 12,2009 attheregularmeeting oftheAlbuquerque-Bernalillo County Air Quality Control Board (AQCB), following a public hearing held on August 12, 2009. The regulation was filed with the New Mexico State Records CenteronAugust 14,2009 andbecame effectiveon September 14, 2009. The first pageofAttachmentAis atransmittaloftheregulations to the StateRecords Center signedbyAQCB ChairmanJens Deichmann. Thedate stamp atthetop ofthepage indicates the date offiling. (c) Evidencethatthe Statehasthenecessarylegal authorityunderStatelawtoadoptand implementthe plan. X YES NO N/A TheNewMexicoAirQuality ControlAct

### provides for the regulation at 74-2-5.1 NMSA 1978, Duties andPowers OfTheDepartmentAndThe LocalAgency; 

### and forplanrevisions at 74-2-5.2 NMSA 1978, StateAir



### 1

### Pollution ControlAgency; SpecificDuties andPowers of the Department. (d) A copy ofthe actual regulation, or document submitted for approval and incorporationbyreferenceinto theplan, includingindicationofthechanges madeto the existing approvedplan, where applicable. The submittal shall be a copy ofthe official State regulation/document signed, stamped, datedby the appropriate State official indicating that it is fully enforceablebythe State. The effective date ofthe regulation/document shall, wheneverpossible, be indicated inthe document itself. X YES NO N/A 

### AttachmentB containsacopyoftheamendmentsto 20.11.8NMAC,

### Ambient AirQualityStandards, as filedwiththeNMSRCon8/14/09,withaneffectivedate of 9/14/09. The date stamp in the upperright-hand comer oftheregulation indicates that the regulation is fully enfurceable by the state. This amended regulation was published 

### in the 

### New Mexico Register on 8/31/09 (Volume 

### XX, Issue 16). See 

### AttachmentC. (e) Evidencethatthe Statefollowed all oftheproceduralrequirementsofthe State'slaws and constitution in conducting and completingthe adoption/issuance ofthe plan. X 

### YES NO N/A SeeNMAC Transmittal Form in

### AttachmentA. This certifies that this rule has beenproperly filed withtheNew Mexico State Records Center. 

### (f) Evidence that public notice was given ofthe proposed change consistent with procedures approved by EPA; including the date ofpublicationofsuch notice. X 

### YES NO N/A See 

### AQD Exhibits #6a. #6b and #6c, in 

### Attachment D. These provide evidence that notices were published in the local newspaper and the 

### New Mexico Register. In 

### addition, noticewas also providedintheformofane-mail senttotheair 

### qualitylistserveandmailedwhenappropriate. TheNewMexico AirQualityControl Actat74-2-6CNMSA 1978,

### Adoptionof regulations; noticeandhearingsrequires a 30-daynotice. (g) Certification that public hearing(s) were held in accordance with the information provided inthepublic notice and the State's laws and constitution, ifapplicable. 

### X YES NO

- 

## - N/A



### 2

# ,

Theopening statementforthe 8/12/09publichearingincludesinformationon the notice ofpublic hearing and instructions onhow the hearing will be conducted. See certified hearing recordtranscript in

### AttachmentE. (h) Compilation ofpublic comments andthe State's response thereto. X YES NO N/A See hearing exhibit #7 in Attachment D, and for public comment see the hearing transcript inAttachment E for State's response thereto. 2.2 

### Technical Support (a) Identification ofall regulatedpollutants affectedbythe plan. X YES NO N/A Theregulatedpollutants affectedbythisplanarelistedinSection20.11.8.13 NMAC, 

### Summary of Federal andState AmbientAir Quality Standards, found in Exhibit #Ib in Attachment D. The objective of20.11.8 NMAC is to adopt local ambient air quality standards that are identical to the federal National Primary and SecondaryAmbientAir Quality Standards codified at40 CFR Part 50, andto adopt applicable StateAmbient Air Quality Standards codified at 20.2.3 NMAC. (b) Identification ofthe locations ofaffected sources including the EPA attainment! non- attainmentdesignationofthelocations andthe status oftheattainmentplanfor the affected area(s). X YES NO _N/A Essentially all sources in Bernalillo County could be affected, including stationary, area, andmobile sources. Bernalillo Countyiscurrentlydesignatedas an attainment areaforCO undera LimitedMaintenancePlan (LMP). This designation waspublishedinthe

### FederalRegisteronJuly21, 2005 [Vol. 70, No. 139]. 20.11.8 NMAC, 

### AmbientAir Quality Standards is not expected to negatively affect the maintenance status for Bernalillo County. Bernalillo Countyis in attainmentfor all otherregulatedpollutants. (c) Quantificationofthechanges inplan-allowableemissions fromtheaffectedsources; estimates ofchanges in current actual emissions from affected sources or, where appropriate, quantification ofchanges in actual emissions from affected sources throughcalculations ofthedifferencesbetweencertainbaselinelevels andallowable



### 3

### emissions anticipated as aresult ofthe revision. X YES NO N/A This plan revision for 

### Ambient Air Quality Standards, 20.11.8 NMAC, incorporates Federal and State ambient air quality standards and updates and establishes standardsthatmustnotbeviolated. Thechangesthatweremadefromthe priorregulation areincludingsection20.11.8.14NMAC,

### Interpretation, andaligning local ambient air quality standards codified at 20.11.8.13 NMAC, with federal standards. Thesechanges are notanticipated to change actual emissions sincethese standards were already enforceable at the federal level, and are simply being incorporated atthelocal level. (d) The State'sdemonstrationthatthenational ambientairqualitystandards,prevention of significant deterioration (PSD) increments, reasonable further progress demonstration, andvisibility, as applicable, areprotectediftheplanis approved and implemented. For all requests to redesignate an area to 

### attainment for a national primaryambientairqualitystandard, undersection 107oftheAct, arevisionmustbe submittedtoprovideforthemaintenanceofthenationalprimaryambientairquality standards for at least 10 years as requiredby section 175A ofthe Act. YES NO X 

### N/A Thisplanrevisiondoesnotpertaintoredesignatinganareato attainmentfora national primary ambient air quality standard. Nordoes itpertain to PSD increments and demonstrations ofreasonable further progress. (e) Modelinginformationrequired to supporttheproposedrevision, including input data, outputdata, modelsused,justificationofmodel selections, ambientmonitoring dataused, meteorologicaldataused,justificationforuseofoff sitedata(whereused), modes ofmodels used, assumptions, and otherinformationrelevant to the determination ofadequacy ofthemodeling analysis. YES NO X 

### N/A



### 4(f) 

### Evidence, where necessary, that emission limitations are based on continuous emission reduction technology. YES NO X N/A (g) Evidence that the plan contains emission limitations, work practice standards and recordkeeping/reporting requirements, where necessary, to ensureemission levels. YES NO 

### X N/A 

### (h) Compliance/enforcementstrategies,includinghow compliancewillbedetenninedin practice.



### X YES NO N/A Current compliance & 

### enforcement strategies are not anticipated to change with this revision, but will continue to utilize modeling, monitoring, continuous emissionsmonitoring (CEMs), pennitreview, facilityinspections, etc. toensurethat airquality standards are not violated. (i) SpecialeconomicandtechnicaljustificationrequiredbyanyapplicableEPApolicies, or an explanation ofwhy suchjustifications are not necessary. YES NO 

### X N/A No specialeconomic andtechnicaljustificationsrequiredbyotherapplicable EPA policies are necessarybecauseno suchpolicies are relevant in this case.



### 5

# ATTACHMENT A

Attachment A is a copy of the transmittal form required by the New Mexico State Records Centerto file a regulation or an amendment. The form is signed by the AQCB Chair, Jens Deichmann. The date stamp at the top ofthe transmittal form indicates the date of filing.

### ., . 

### NMAC TRANSMITTAL FORM

- ,- (; '": I ' 

### fen • . [Sequence #

3. eo dIiIr.esS

.. c/o Environmental Health Department, Air Quality Division P.O. Box 1293, One Civic Plaza NW Albu uer ue NM 87103**,l44lioQt:a:~P.ers(m.:·.I';** \ lO" h ' ooof' [*'J."T:k? '·.2..:m**;if.;;,~** ''1:/**"i"f~' :'.;:<~~;';:"k**  ;;......j;-.**·.I~",J' '~:~.'** **~'""f:"I."'1f<~~;,:,.;1.I** Name Neal Butt Phone # (505) 768- 

# IFAX 505-768-2617 2660 E-mail nbutt@cabg.gov

... -:<., 

### - 

## . Emergency 

# 0

.**~rit1filin9!ilate j(ff:aprli~61e)**  5/13/04

Reference JInternet site No X Yes Please listattachments andInternetsire(s) if applicable 1. 2

Public domain

# D

Name: Mr. Jens Deichmann Checkifdelegated authority 

# c:!J

# ~(}-L o te S gned

# ATTACHMENT B Attachment B is a copy ofthe amended sections ofthe current rule, with changes indicated by redline-strikeout, as published in the New Mexico Register on August 31,2009, Volume XX, Issue Number 16.

# , 

# ..

Lv", . !'. " i·' 

### 'I nr-**~"-'l'** 

# '-0 1'. !,': 1 , .. j 

### .,r

## t.

. This is an amendment to 20.11.8 NMAC, Sections 1,2,5,6,8, II. 12, and 13, effective 9/14/2009.

### ~[)D9 

## flO" 18**~:1** Q: 

## n7 20,11.8,1 ISSUING AGENCY: Albuquerque

-Bemalili'o C6untyAir Quality Control Board. P.O. Box 1293, Albuquerque, NM 87103, Telephone:**(5~~~** 

## [7.8**4~gQ17§S-~fge'J** [20.1\,8.1 NMAC

- N, 7/1104; A, 9/14/09]

.... ,**-"3f:b:'i~ ,-~"**  20,11,8,2 SCOPE: A, 20.11.8 NMAC is applicable [to the sitl'**.fAI"u'l".F~u.** ",,,I] within Bernalillo county. B, Exempt: 20.11.8 NMAC does not apply to sources withinBernalillo county, which are located on Indian lands over which the Albuquerque

- Bernalillo county air quality control board lacksjurisdiction. [20.11.8.2 NMAC

- N, 7/1/04; A, 9/14/09] 20,11.8.5 EFFECTIVE DATE: [Th••ffoeti.,. date ofPart 8 i6,] July I, 2004, unless a laterdate is cited at the end ofasection. The effective date ofa specific section is located at the end ofeach section within the historical brackets. As required by the New Mexico Air Quality Control Act, Chapter 74, Article 2, Section 6 NMSA 1978, no regulation or emission control requirement or amendment thereto, or repeal thereof. shall become effective until 30 days after its filing underthe State Rules Act, Chapter 14, Article4 NMSA 1978. [20.11.8.5 NMAC

- N, 7/1104; A, 9/14/09] 20,11.8,6 OBJECTIVE: [Th••"".eli','••nQ.I1.8**~IMAC** i6] To adoptlocal ambient air quality standards thatare identical to the federal National Primary and Secondary AmbientAir Quality Standards codified at40 CFR Part 50, and to adoptapplicable stateAmbientAirQuality Standards codified at 20.2.3 NMAC. [20.11.8.6 NMAC

- N. 7/1104; A, 9/14/09] 20.11.8,8 SAVINGS CLAUSE: Any amondment to AmbientAirQuality Standards, 20.11.8 NMAC, [that] which is filed with the state records center, shall notaffect actions pending for violation ofacity or county ordinance, the air quality regulations for Albuquerque and Bernalillo county or apermit issued by the department. Prosecution for a violationunder aprior statute, ordinance, regulationor pennit shall be governed andprosecuted under the statute, ordinance or regulation ineffectat the time the violation was committed. [20.11.8.8 NMAC

- N, 7/1/04; A, 9/14/09] 20,11,8,11 INCORPORATION OF FEDERAL AMBIENT AIR QUALITY STANDARDS: Except as otherwiseprovided, the National Primary and Secondary Ambient Air Quality Standards ofthe United States environmental protection agency including the General Provisions thereto, codified at40 CFRPart 50 (including aopendices), as amended through**[Jul~'** 18,1997] January 12, 2009, are hereby incorporated into 20,11.8 NMAC. Section 20.11.8.13 NMAC is a summary ofthe federal and state standards incorporated in 20.11.8 NMAC. [20.11.8,11 NMAC· N, 7/1/04; A, 9/14/09] 20.11.8,12 INCORPORATION OF STATE AMBIENT AIR QUALITY STANDARDS: Except as otherwise provided, the stateAmbientAirQuality Standards ofthe environmental improvementboard codified at 20.2.3 NMAC [, .[foeti',. Oeto"."I, 2QQ2,] are hereby incorporated into 20.11.8 NMAC. Section 20.11.8.13 NMAC is a summary ofthe federal and state standards incorporated in 20.11.8 NMAC. [20.11.8.12 NMAC

- N, 7/1/04; A, 9114/09] 20,11.8.13 SUMMARY OF FEDERAL AND STATE AMBIENT AIR QUALITY STANDARDS:

Pollutant Standards Reference 

### I Federal Primary 

### I Federal Secondary 

### I New Mexico State Carbon Monoxide (CO 8-houraverage 40 CFR 50.8 

### I 9[,{l] oom 

### I none 

### I 8,7oom i-houraverage 40 CFR 50.8 135 ppm 

### I none 113.loom Nitrogen Dioxide (NO,) 24-hour average 20.2.3.111 NMAC 

### I none 

### I none 10,IOppm

20.11.8 NMACAnnual arithmetic mean 40 CFR 50.11 0.053 ppm 0.053 ppm 0.05 ppm Ozone (0,)

. 

### - _1 8-hour average 40 CFR 50.10 0.08 DPm 0.08 ppm none (The 1997 standard

- and the implementation rules for that standard

- will remain in place for implementation purnoses as EPA undertakes rulemaking to address the transition from the 1997 ozone standard to the 2008 ozone standard).**8~hour** averae-e 40 CFR 50.15 0.075 Dom 0.0750om none IEffective Mav 27 2008\ Snlfnr Dioxide (SO,\ 24-hour average 40 CFR 50.4 0.14 ppm none 0.10 ppm 3-houraverage 40 CFR 50.5 none 0.5 ppm none Annual (arithmetic 40 CFR 50.4 0.03Qppm none 0.02 ppm mean) ParticulateMatler (PM,.) 

### -J 24-houraverage 40 CFR 50.13 

### I 35 uglm' 35 uglm' none IEffective December 18 2006\ Annual (arithmetic 40 CFR 50.7 & 15J) "glm· 15J) "glm' none mean) 40 CFR 50.13 ParticulateMatler (PM,,) 24-hour average 40 CFR 50.6 150 ug/m' 

### I 150 ug/m· none 

### I """,,1 Lead (Pb) 

### I I . _J Rolling 3-month average I 40 CFR 50.16 0.15Ilulm' 0.1511ulm· none (Effective I**v~ar** afterdate ofarea attainment designation) Hvdro!!en Sulfide I-hr average 20.2.3.110 NMAC none none 0.010 ppm Total Reduced Sulfur 1I2-hour average 20.2.3.110 NMAC none none 0.003 ppm Particulate Matler (TSP) 24-houraverage 20.2.3.109 NMAC none none 150 ug/m' 7-davaverage 20.2.3.109 NMAC none none 110 ug/m' 30-davaverage 20.2.3.109 NMAC none none 90 UP m' Annual geometric mean 20.2.3.109 NMAC none none 60 u.!?'m· [20.11.8.13 NMAC

- N, 7/1/04; A, 9/14/09]

20.11.8 NMAC 2

# ATTACHMENT C

Attachment C is a copy ofthe rule amendments as published in the New Mexico Register on 8/31/09 (Volume XX, Issue 16).**\..,~j** - " \ '-, -;:J ( r,

o -..I

# .. 1970 New Mexico Register/Volume XX, Number 16/

### August 31,2009



### ALBUQUERQUEBERNALILLO COUNTY AIRQUALITY CONTROL BOARD 20.1I.1.11 DOC U MEN T S : Documents incorporated and cited in [tltio-part] 20.11.1 NMAC may be viewed at the Albuquerque environmental health department, 400 Marquette NW, Albuquerque, NM. [12/1/95; 20.11.1.11 NMAC

- Rn, 20 NMAC 11.01.1.11 &A, 10/1/02;A,9/14/09]

20.11.8.2 20.11.1.14 [IPll'ERPRE'f1td'19N. Except as cxp,,!!l) pICy idcd to the eontHlI) ill the!e .egulatioii!, n"CIle.er tno 01 iII0le palt! of the!, "gulation! limit, williol 01 legulate the emissioll5 of a paltiwlm ail eOiitallliudal, the mOle ICshictioC 01 shingcnt .hall gO,""t.] [Rcserved] [3/24/82; 20.11.1.14 NMAC

- Rn, 20 NMAC 11.01.11.3,10/1/02; A, 9/14/09]

SCOPE: A. 20.11.8 NMAC is applicable [10 the eily ofAlbuque,que alid] within Bernalillo county. B. Exempt: 20.11.8 NMAC does not apply to Sources within Bernalillo county, which are located on Indian lands over which the Albuquerque

- Bernalillo county air quality control board lacksjurisdiction. [20.11.8.2 NMAC

- N, 7/1/04; A, 9/14/09] 20.11.8.1 ISSUING AGENCY: Albuquerque Bernalillo County Air Quality Control Board. P.O. Box 1293, Albuquerque, NM 87103. Telephone: (505) [768 2699)768-2601. [20.11.8.1 NMAC

- N, 7/1/04; A, 9/14/09] This is an amendment to 20.11.8 NMAC, Sections 1,2,5,6, 8, II, 12, and 13, effective 9/14/2009.

20.1I.8.S EFFECTIVE DATE: [The effeeliIe date of PalI 8 i.,] July I, 2004, unless a later date is cited at the end ofa section. The effective date ofa specific section is located at the end ofeach section within the historical brackets. As required by the New Mexico Air Quality Control 20.11.1.9 SAVINGS CLAUSE: Any amendment to 20.11.1 NMAC which is filed with the state records center shall not affect actions pending for violation ofa city or county ordinance, [Ail Qualit) COIlliol Boa,d Slandaid I, Boaid Regulation. No. 1,2, and 26,] or [Part--t] 20.11.1 NMAC. Prosecution for a violation under prior regulation wording shall be governed and prosecuted under the statute, ordinance, part or regulation section in effect at the time the violation was committed. [12/1/95; 20.11.1.9 NMAC

- Rn, 20 NMAC 11.01.1.9, 10/1/02; A, 9114/09] control available mglm'·milligram per cubic metcr R&D-research & development 20.11.1.10 SEVERABILITY: If mi.-milc(s) RECLAIM-regional clean air incentives any section, paragraph, sentence, clause or mln-minute(s) market word of [tltio-part] 20.11.1 NMAC or any ml-milliliter(s) ROG-reactive organic gases federal standards incorporated herein is for mm-millimeter(s) rpm-revolutions per minute any reason held to be unconstitutional or MMBtu-million Btu RTA-regional transit authority otherwise invalid by any court, the decision mmHg-millimeters ofmercury RTC-RECLAIM trading credit shall not affect the validity of remaining mph-miles per hour RVP-reid vapor pressure provisions of[this-part] 20.11.1 NMAC. MPO-metropolitan planning organization .-second(s) [12/1/95; 20.11.1.10NMAC

- Rn, 20NMAC MRCOG-mid-region council of SAE-socicty ofautomotive cngineers 11.01.1.1 0, 10/1/02; A, 9/14/09] governments SAFETEA-LIl-The Safe Accountable. MSERC-mobile source emission reduction Flexible EfficientTransportation Equity Act credits

- A Legacy for Users MSMTC-mobile source modeling technical SBAP-small business assistance program committee scf·standard cubic foot MTBE-methyl tertiary butyl ether SI-international system ofunits MVD-motor vehicle division SIP-state implementation plan MWe-megawatt electrical SLAMS-state and local air monitoring Nl-nitrogcn station NAAQS-national ambicnt air quality SMOG-SMoke + fDG standards SOl·sulfur dioxide NAMS-national air monitoring station State DOT-New Mexico department of NCore- national COre multi-pollutant transportation monitoring network STIP·state transportation improvement NDIR· NonDispersive InfraRed program NEPA-National Environmental Policy Act TCC-transportation coordinating committee NESCAUM/MARAMA-northeast states TCM-transportation control measure for coordinated air use management/mid- TES-transportation evaluation study atlantic regional air management association TIP-transportation improvement program NESHAP-national emission standards for TMA-transportation management hazardous air pollutants association NIST-national institute of standards and ton/yr-tons per year technology TPTG-transportation program task group NM-New Mexico tpy-tons per year NMAC-New Mexico administrative code TSP-total suspended particulatc NMSA-New Mexico statutes annotated UPWP-unified planning work program NO-nitric oxide UTPPB-urban transportation planning NOl-nitrogen dioxide policy board NOx -oxides ofnitrogen U.S.-United States No-number UV-ultraviolet NOV-notice ofviolation VE-visible emission(s) NMHC-non-methane hydrocarbons VIN-vehicle identification number NSPS-new source perfonnance standards VMT-vehicle miles traveled NSR-new source review VOC-volatile organie compounds 0l-oxygen VPMD-vehicle pollution management OJ-ozone division OMTR-open market trading rule %-percent OTAG-ozone transport assessment group °-degree(s) OTC-ozone transport commission [3/21/77.

. .11/12/81, 11/21/81, 3/16/89, Pb-Iead 6/16/92,2/26/93,9/23/94, 12/16/94, 12/1/95, PIC-public involvement committee 8/1/96; 20.11.1.7 NMAC

- Rn, 20 NMAC PM-particulate mattcr 11.01.1.7, 10/1/02;A, 7/1/04; A, 9/14/09] PMl.,particulate matter less than 2.5 microns PM,o-particulate mailer less than 10 microns ppm-parts per million by volume ppm C-parts per million, carbon PSD-prevention ofsignificant deterioration IPSI Pollulanl Slanda,d Index] psi-pounds per square inch psia-pounds per square inch absolute psig-pounds per square inch gauge PTE-potential to emit PWD-pathological waste destructor QF-qualifying facility R-Rankin RACT-reasonably technology

## -.. New Mexico Register/Volume XX, Number 16/August 31, 2009 Act, Chapter 74, Article 2, Section 6 NMSA 1978, no regulation or emission control requirement or amendment thereto, or repeal thereof, shall become effective until 30 days after its filing under the Slate Rules Act, Chapter 14, Article 4 NMSA 1978. [20.11.8.5 NMAC

- N, 7/1/04; A, 9114/09] 20.11.8,6 OBJECTIVE: [The 6bjccli iC 6f 28.II.B IlMAC is] To adopt local ambient air quality standards that are identical to the federal National Primary and Secondary Ambient Air Quality Standards codified at 40 CFR Part 50, and to adoptapplicable slateAmbientAirQuality Siandards codificd at 20.2.3 NMAC. [20.11.8.6 NMAC

- N, 7/1104; A, 9114/09] 20.11.8,8 SAVINGS CLAUSE: Any amendment to Ambient Air Quality Standards, 20.11.8 NMAC, [that] which is filed with the state records center, shall not affect actions pending for violation of a city or county ordinance, the air quality regulations for Albuquerque and Bernalillo county or a pennit issued by the department. Prosecution for a violation under a prior statute, ordinance, regulation or pennit shall be governed and prosecuted under the statute, ordinance or regulation in effect at the time the violation was committed. [20.11.8.8 NMAC

- N, 7/1/04; A, 9/14/09] 20.11.8,11 INCORPORATION OF FEDERAL AMBIENT AIR QUALITY STANDARDS: Except as otherwise provided. the National Primary and Secondary Ambient Air Quality Standards ofthe United States environmental protection agency including the General Provisions thereto, codified at 40 CFR Part 50 (including appendices), as amended through [July IB, 1997] January 12 2009, are hereby incorporated into 20.11.8 NMAC. Section 20.11.8.13 NMAC is a summary of the federal and state standards incorporated in 20.11.8 NMAC. [20.11.8.11 NMAC

- N, 7/1/04; A, 9/14109] 20,11.8,12 INCORPORATION OF STATE AMBIENT AIR QUALITY STANDARDS: Except as othclWise provided, the state Ambient Air Quality Standardsoftheenvironmental improvement board codified at 20.2.3 NMAC I, effecti It Oelobe. 31, 2882,] are hereby incorporated into 20.11.8 NMAC. Section 20.11.8.13 NMAC is a summarymthe federal and state standards incorporated in 20.11.8 NMAC. [20.11.8.12 NMAC· N, 7/1/04; A, 9/14/09] [Continuedonpage 1072] 1071

# '. 11172

20.11.8.13 

### New Mexico Register/ Volume XX, Number 16/August 31, 2009

SUMMARY OF FEDERALAND STATE AMBIENT AIR QUALITY STANDARDS:

Pollutant Standards 

### I Reference Federal Primary Federal Secondary New Mexico State

Carbon Monoxide (CO) 8-houraverage 

### I 40 CFR 50.8 9[06] ppm none 

### I 8.7 ppm I-hour average 

### I 40 CFR 50.8 35 ppm none 

### 1 13.1 ppm Nitrogen Dioxide (NO,) 24-hour average 

### 120.23111 NMAC none none 10.IOppm Annual arithmetic mean 40 CFR50.11 0.053 ppm 

### 10.053 ppm 0.05 ppm Ozone (0,) [!**ho~,** a",age 

### 1 8.128 ppii' 

### I 8.128 ppill 

### =] 8-hour average 

### 140 CFR 50.10 0.08 ppm 0.08 ppm none (The 1997 standard

- and the implementation rules for that standard

- will remajn in place for implementation pumases as EPA undertakes rulemakinc to address the transition from the 1997 ozone standard to the 2008 ozone standard>. 8.hoyr average 

### 140 CFR 50,15 0075 ppm 

### 10.075 ppm 

### 1= (Effective May 27 2008) Sulfur Dioxide (SO) 24-hour average 40 CFR 50.4 0.14 ppm none 0.10 ppm 3-hour average 40 CFR 50.5 none 0.5 ppm none Annual (arithmetic mean) 40 CFR 50.4 0.030 ppm none 0.02 ppm Particulate Malter (PM,J [24 hotn a.clagc 

### 1 65**~ghl/** 

### I 65 pg/iII' 

### 1=] 24.hour average 

### 140 CFR 50.13**~, ~,**  

### 1= (Effective December 18. 2006) Annual (arithmetic mean) 40 CFR 507& 15Jl**~glm'** 15Jl**~glm'** none 40 CFR 5013 Particulate Matter(PMIIJ 24-hour average 

### I 40 CFR 50.6 150**~g/m'** 150**~glm'** none [Au1itJal aaithliietic iileAIi 

## I 58 pg/i11

### , 58 pg/iif 

### 1=]

Lead (Pb) [QUAil" I) mitlui1etic

## ",Cal. 1 1.5 pghrf 1.5 pgilii

### , 

### =] Rolling 3-month average 

### 140 CFR 50.16 o 15ug/m 1 O.15ug/m;I none (Effective I year after date ofarea attainment designation) Hydrogen Solfide I-hr average 20.2.3.110 NMAC none none 0.010 ppm Total Reduced Sulfur lIZ-houraverage 20.2.3.110 NMAC none none 0.003 ppm Particulate Malter (TSP) 24-hour average 20.2.3.109 NMAC none none 150**~glm'** 7-day average 20.2.3.109 NMAC none none 110**~glm'** 30-dayaverage 2023 109 NMAC none none 90**~g/m'** Annual geometric mean 20.2.3.109 NMAC none none 60**~g/m'** [20.11.8.13 NMAC

- N, 7/1/04; A, 9/14/09]

# ATTACHMENT D

Attachment D is a copy ofthe Notice of Intentto Testify (NOI) filed on July 28, 2009, including exhibits introduced at the hearing.

### BEFORE THE ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD



### .. IN THE MATTER OF THE PETITION TO AMEND

. - . 20.11.1 NMAC, GENERAL PROVISIONS, AND 20.11.8 NMAC, AMBIENT AIR 

# .>'

.:/=' QUALITY STANDARDS, AND SUBMIT AMENDMENTS TO EPA AS A REVISION TQ

# =, THE STATE IMPLEMENTATION PLAN (SIP) '': ':., AQCB Petition No. 2009·3 Air Quality Division, Environmental Health Department, City ofAlbuquerque, Petitioner

CITY OF ALBUQUERQUE'S NOTICE OF INTENT TO PRESENT TECHNICAL TESTIMONY ," 

## ,-

Pursuant to 20.11.82 NMAC, RulemakingProcedures

- Air Quality Control Board, The City ofAlbuquerque Environmental Health Department, Air Quality Division ("the Division") hereby submits its Notice ofIntent (NO!) to present technical testimony in this proceeding. I. 

### The person for whom the witnesses will testify. City ofAlbuquerque Environmental Health Department, Air Quality Division 2. The name and qualifications ofeach technical witness. Neal T. Butt. Environmental Health Scientist, Control Strategies Section, Air Quality Division. M.S. Biology (Wildlife Biology), University o(North Dakota; B.S. Biology (Zoology), University ofNew Mexico; A.A.S. Criminal Justice, Central New Mexico Community College; A.A.S. Environmental Protection Technology, CNM; WERC Waste Management Certificate, UNM Chemical & 

### Nuclear Engineering Department. Employed by the City ofAlbuquerque's Environmental Health Department for 12 

### + years; the last eight ofwhich have been with the Air Quality Division. Chiefresponsibility is the promulgation ofair quality regulations for implementation within the County ofBernalillo. Fabian Macias. Air Quality Assurance Manager, Air Quality Division. B.S. Chemistry, New Mexico Highlands University. Employed by the City ofAlbuquerque's Environmental Health Department, Air Quality Division for 8 years. Previously employed by the State ofNew Mexico's, Air Quality Bureau (1995-200I), as Ambient Air Monitoring Network Manager. Chiefresponsibility is to manage the resources ofthe Air Quality Assurance Program within the Air Quality Division, including both the Ambient Air Monitoring and QualityAssurance Notice ofIntent Page I of5

### Sections. Air Quality Assurance Program operations include data acquisition and validation of ambient air pollution measurements within Bernalillo County. Ken Lienemann. 

### Air Monitoring Supervisor, AirQuality Division. M.S. Remote Sensing, B.S. Mechanical Engineering. Employed by the CityofAlbuquerque's Environmental Health Department, AirQuality Division for 3 years. Previously employed by the State ofNew Mexico's Air Quality Bureau (200I - 2006). Responsible for the operation ofthe Albuquerque Bernalillo County air monitoring network, which consists ofapproximately 100 instruments at 10 distributed sites.



### 3. Summary and Estimated Duration ofTestimony 

### Mr. Butt's written testimony is attached as AQD Exhibit # 

### 8. Mr. Butt will testify that the proposed amendments to 20.11.1 NMAC and 20.11.8 NMAC and concomitant revisions to the New Mexico State Implementation Plan for Air Quality (SIP) should be approved. The Division is petitioning the Board to amend 20.11.\ NMAC, GeneralProvisions, 

### and 20.1 1.8 NMAC, AmbientAirQuality Standards 

### for the following reasons: # 

### I. The currently effective version of20.11.1 NMAC, General Provisions, 

### contains an

error. Section 20.11.1.14 NMAC, Interpretation, 

### belongs at 20.11.8.14 NMAC, Interpretation, 

### and was left in 20.11.1 NMAC by mistake when these two rules were amended in 2004. The proposed amendment deletes this section. #2. The proposed amendments will align language codified at 20.11.1.7 NMAC, Definitions 

### with language in: 40 CFR Part 51.100(s), Definitions; 

### The New Mexico Air Quality Control Act; and the 6123/09 

### Public Review Draftfor the proposed new rule, 20.11.49 NMAC, Excess Emissions. 

### #3. The proposed amendments will align local ambient air quality standards codified at 20.11.8.13 NMAC, Summary ofFederal andStateAmbientAirQuality Standards; 

### with federal standards codified at 40 CFR 50.4,50.5,50.6,50.7,50.8,50.9,50.10,50.11,50.12, 50.13,50.15, and 50.16.

#4. The proposed amendments will correct style and formatting. Notice ofIntent Page 2 of5It 

### is anticipated that the hearing will take approximately I hour or less.



### 4. Text ofRecommended Revisions to the New Mexico State Implementation Plan The Division recommends the amendments to 20.11.1 NMAC, General Provisions, and 20.11.8 NMAC,AmbientAir Quality Standards, as proposed in the Public Review Drafts shown

as AQD Exhibit #

### Ia and #

### Ib respectively, be adopted by the Board, and that these amendments shall be submitted to EPA as a revision to the State Implementation Plan (SIP). 

### S. List and Description ofExhibits The Division has attached the following exhibits to this NoticeofIntent: Exhibit Number Title ofExhibit AQD Exhibit I 'Petition to Amend' filed on May 22, 2009; AQD Exhibit Ia Public Review Draft {attached to AQD Exhibit I} showing proposed amendments to 20.11.1 NMAC, General Provisions; AQD Exhibit Ib Public Review Draft {attached to AQD Exhibit I} showing proposed amendments to 20.11.8 NMAC, AmbientAirQualityStandards; AQD Exhibit 2 August 3, 2005 Federal Register Notice which revoked the I-hour ambient air quality standard for ozone; AQD Exhibit 3 October 17,2006 Federal Register Notice which stipulates changes made to the federal ambient air quality standards for PM 2.5 [Electronic]; AQD Exhibit 4 March 27, 2008 Federal Register Notice which stipulates changes made to the federal ambient air quality standard tor Ozone, 8-hour average; AQD Exhibit 5 November 12, 2008 Federal Register Notice which stipulates changes made to the federal ambient airquality standard tor lead [Electronic]; AQD Exhibit 6 

### albic Public notices ofhearing, including the legal advertisement ofthis hearing in the Albuquerque Journal {6a} and the New Mexico Register {6b}, as well as the 'Notice ofAvailability ofthe Public Review Draft' which was
Notice ofIntent Page 3 of5

### AQD Exhibit 7 AQD Exhibit 8 AQD Exhibit 9 sent to the Air Quality Announce List Serve as well as a list ofthose individuals' e-mail addresses {6c} Comments received from EPA Direct Testimony and PowerPoint slides Draft Agenda, Air Quality Control Board, for August 12,2009.



### 6. Reservation ofRights 

### This Notice ofIntent to PresentTechnical Testimony is based on the Division's Petition

/0

### Amend. 

### The Division reserves the right to call any person to testify and to present any exhibit in response to another Notice OfIntent orpublic comment filed in this matter orto any testimony orexhibit offered at the public hearing. The Division also reserves the right to call anyperson as a rebuttal witness and to present any exhibit in support thereof.

Notice ofIntent Page 4 of5

### Vevt.ijLl1 J 

### o Respectfully submitted,

Isreal Tavarez Environmental Engineering Manager Air Quality Division Environmental Health Department One Civic Plaza, NW, Suite 3047 Albuquerque, New Mexico 87103 (505)768-1965



### CERTIFICAnON

Ihereby certify that on July 28,2009, an original and nine copies ofthis Notice ofIntent to present technical testimony (NOI), with attached exhibits were delivered to the following person for filing. Janice Amend Air Quality Control Board Liaison 

### IHearing Clerk Environmental Health Department One Civic Plaza, NW, Suite 3023 Albuquerque, New Mexico 87103 And that on July 28,2009, a copy ofthis NO! with attached exhibits was sent to the Attorney for the Board, Bill Grantham, at the following e-mail address: BiII.grantham@state.nm.us

Isreal Tavarez Environmental Engineering Manager Air Quality Division

Notice ofIntent Page 5 of5'"

'" 

# ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD PUBLIC HEARING

Proposal to Amend 20.11.1 NMAC, GeneralProvisions, 

# and 20.11.8 NMAC,AmbientAir Quality Standards,



# and SubmitAmendments to EPA as a Revision To The SIP

August 12, 2009 Exhibits ",

'"

### ',' ',' ." 

## .,' .,'

'" 

## .,'

'" ','

'" 

## .,'

'" 

## .,' ." 

## .,'

'" 

## .,'

'" 

## .,' ." 

## .,' ." ','

'" ",

'" ",

'"

'"'" ." ." 

## .,'

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'" 

## .,'

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## .,'

., ',' ."

'i' 

### ", ",

'" ."AQD Ex. # 1- Petition and PRD of20.11.1 NMAC, General Provisions and 20.11.8 NMAC, Ambient Air QualityStandards (5-22-09) , #1 a-PRD for 20.11.1 NMAC, General Provisions, #1b-PRD for 20.11.8 NMAC, AmbientAirQualityStandards

AQD Ex. #2-8/3/05 Federal Register Notice which revoked the 1-hour ambient air quality standard for ozone

AQD Ex. #3-10/17/06 Federal Register Notice which stipulates changes made to the federal ambient air quality standards for PM2.5 (CD)

AQD Ex. #4-3/27/08 Federal Register Notice which stipulates changes made to the federal ambient air quality standard for ozone 8-hour avera e AQD Ex. #5·11/12/08 Federal Register Notice which stipulates changes made to the federal ambient air quality standard for lead (CD)

AQD Ex. #6a- ABQ Journal Legal Ad, #6b-New Mexico Register Legal Ad, #6c-Notice of Availability of the Public Review Draft sent to ListServe, and ListServe e-mail list
AQD Ex. #7-Comment received from EPA

AQD Ex. #8-Direct Testimony and Power Point Presentation



### AQD Ex. #9- Draft Agenda, AQCB 8/12/09

# • tltH11l1I

## g-A~D 

# I 1:-..

... _ ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD

IN THE MATTER OF THE PETITION TO AMEND 20.1 I.I 

### NMAC, GENERAL PROVISIONS, 

### AND 20.11.8 NMAC,AMBIENTAIR QUALITYSTANDARDS, 

### AND SUBMIT AMENDMENTS TO EPA AS A REVISION TO THE STATE IMPLEMENTATION PLAN (SIP) AQCB Petition No. 2009-3 Air Quality Division, Environmental Health Department, City ofAlbuquerque, Petitioner .

# '.

'1 ,'0 '.' J I '

.**-~** .

- ,._--

.'



### Petition to amend 20.11.1 NMAC, GeneralProvisions, 

### and 20.11.8 NMAC, Ambient AirQualityStandards, 

### and submit amendments to EPA as a revision to the SIP

The Environmental Health Department ofthe City ofAlbuquerque, by and through the Air Quality Division (AQD), asks the Albuquerque-Bernalillo County Air Quality Control Board (Board) for ahearing at which the Board will hear AQD's request that the Board adopt amendments to 20.1 L1 NMAC, GeneralProvisions, 

### and 20.1 1.8 NMAC, AmbientAirQuality Standards, 

### and submit these amendments to EPA as a revision to the State Implementation Plan (SIP), This Petition includes arequest for ahearing on these matters and permission to provide a court reporter and hearing officerfor the hearing. As grounds, Petitioner states the following: 1. The New Mexico Air Quality Control Act (Air Act), NMSA 1978, Sections 74-2-4 and 74-2-5,B(1) [1967 as amended through 2007] authorizes and requires the Board to adopt, amend, or replace air quality regulations and to adopt air quality plans (SIPs) underNMSA 1978, Section 74-2-5.B(2),2. The currently etfective version of20.11.1 NMAC, 

### General Provisions, contains an error. Section 20.11.1.14 NMAC, 

### Interpretation, belongs at 20.11.8.14 NMAC, and was left in 20.11.1 NMAC by mistake when these two rules were amended in 2004. The proposed amendment deletes this section. 3. The proposed amendments will align definition language coditied at 20.11.1.7 NMAC with definition language in: 40 CFR Part 51.1 OO(s); The New Mexico Air Quality Control Act; and proposed 20.11.49 NMAC, 

### Excess Emissions. 4. The proposed amendments will align local ambient air quality standards coditied at 20.11.8.13 NMAC, with federal standards. 5. The proposed amendments will correct style and tormatting. 6. It is anticipated that the hearing will take approximately I hour or less. 7. The proposed Public Review Drafts for 20.11.1 NMAC, 

### General Provisions. and 20.11.8 NMAC, 

### AmbientAir QualityStandards are attached as AQD Exhibit # Ia and # Ib respectively.

2

### Respectfully submitted,



# , Isreal Tavarez Environmental Engineering Manager Air Quality Division Environmental Health Department City ofAlbuquerque One Civic Plaza, NW, Room 3047 Albuquerque, New Mexico 87103 (505) 768-1965



### CERTIFICAnON [hereby certify that a copy ofthis Petition to Amend 20.11.1 NMAC, General Provisions, and 20.11.8 NMAC, Ambient Air Quality Standards and submit amendments to EPA as a revision to the SIP and requesting ahearing was delivered to the following person on May 22, 2009. Janice Amend Air Quality Control Board Liaison Air Quality Division Environmental Health Department City ofAlbuquerque One Civic Plaza, NW, Room 3023 Albuquerque, New Mexico 87103

# ~~ 

# -1**d~** Isreal Tavarez

320.11.1.4 DURATION: Pennanent. [1211/95; 20.11.1.4 NMAC

- Rn, 20 NMAC 11.01.1.4, 1011/02]

20.11.1.6 OBJECTIVE: [TA_ sbj_eti,,_ sflhis raft is] To provide definitions which are generally applicable to Albuquerque

- Bernalillo county air quality control board regulations. [1211/95; 20.11.1.6 NMAC

- Rn, 20 NMAC 11.01.1.6 & A, 10/1/02; A, 7/1/04] 20.11.1.1 ISSUING AGENCY: Albuquerque

- Bernalillo County Air Quality Control Board. P.O. Box 1293, Albuquerque, NM 87103. Telephone: (505) [768 26GG] 768-2601. [6/14171.

. .12/]/95; 20.11.1.1 NMAC

- Rn, 20 NMAC 11.01.1.1, 10/1102] )

20.11.1.5 EFFECTIVE DATE: [TA

__ffesli"_ aal_ sfPaft I is,] December I, 1995, unless a later date is cited at the end ofa section. The effective date ofa specific section is located at the end ofthat section within the historical brackets. As required by the New Mexico Air Quality Control Act, Chapter 74, Article 2, Section 6 NMSA 197R. no regulation oremisslon control requirement or amendment thereto, or repeal thereof, shall become effective until 30 days atter its tiling under the State Rules Act, Chapter 14, Article 4 NMSA 1978. [1211/95

...8/1/96; 20.11.1.5 NMAC

- Rn, 20 NMAC 11.01.1.5 & A, 1011/02; A, 12/1/03; A, 7/1104] ENVIRONMENTAL PROTECTION ALBUQUERQUE

- BERNALILLO COUNTY AIR QUALITY CONTROL BOARD GENERAL PROVISIONS TITLE 20 CHAPTER 11 PART I

20.11.1.2 SCOPE:

_ A. [This raft] 20.11.1 NMAC is applicable [Ie \h_ e;ty ef

## A',e",!,,_,,!,,_ aea] within Bernalill():fount),._: B. Exempt: [TAic raft] 20.\1.1 NMAC does not apply to sources within Bernalillo county, wtlich ., are located on Indian lands over which the AlbuquerquefBemalillo county air quality control board lacks jurisdiction. [12/1195

...8/1/96; 20.11.1.2 NMAC

- Rn, 20 NMAC 11.01.1.2, 10/1/02] "1**~'-..)** 20.11.1.3 STATUTORY AUTHORITY: [This raft] 20.11.1 NMAC is adopted pursuant to the authority

. provided in the New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4, 74-2-5.C; the Joint Air Qualiiy' Control Board Ordinance, Bernalillo County Ordinance 94-5 Sections 3 & 4; the Joint Air Quality Control Board Ordinance, Revised Ordinances ofAlbuquerque 1994 Sections 9-5-1-3 & 9-5-1-4. [6/14/71

... 1211/95; 20.11.1.3 NMAC

- Rn, 20 NMAC 11.01.1.3, 10/1/02; A, 7/1/04]

20.11.1.7 DEFINITIONS: The definitions of[This raft] 20.11.1 NMAC apply unless there is a conflict between definitions in other parts, in which case the definition found in the applicable part shall govern. The definitions include the measurements, abbreviations, and acronyms in Subsection GGGG, of20.11.1.7 NMAC. A. "Abnormal operating conditions" means the startup or shutdown ofair pollution control device(s) or process equipment. B.**~'Administrator"** means the administratorofthe United States environmental protection agency or his or her designee. C. "Affected source" or "facility" means any stationary source, or any other source ofair pollutants, that must comply with an applicable requirement. D. "Air agency", "department" or "EHD" means the environmental health department (EHD) of the city ofAlbuquerque. The EHD, or its successor agency or authority, as represented by the department director orhis/her designee, is the lead airqualityplanning agency for the Albuquerque/Bernalillo county nonattainmentlmaintenance area. The EHD serves as staffto the Albuquerque

- Bernalillo county air quality control board, (A-BC AQCB), and is responsible for the administration and enforcement ofthe A-BC AQCB regulations. E. "Air contaminant" or "air pollutant" means an airpollution agent or combination ofsuch agents, including anyphysical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such tenn includes any precursors to the fonnation ofany airpollutant; to the extent the EPA has identified such precursoror precursors for the purpose for which the tenn "airpollutant" is used. This excludes water vapor, nitrogen (N2), carbon dioxide (CO,), oxygen (a,), methane and ethane. I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55

20.11.1 NMAC Public Review Draft 5/22/09 IF.**·~Air** pollution" means the**~mission.** except as such emission occurs in nature, imo the outdoor 2 atmosphere ofone or more air contaminants in such quantities and duration as may with reasonable probability 3 injure human health, animal or plant life. or as may unreasonably interfere \vith the public welfare, visibility or the 4 reasonable us!: ofprupcrty. 5 G. ··Air quality control act" means the State ofNew Mexico Air Quality Control Act. Chapter 74, 6 Article 2, NMSA 1978 as amended. 7 H.**~'Air** quality control board", ··board'· or**~'A-BC** AQCB" means the Albuquerque - Bernalillo 8 county air quality control board. which is empowered by federal act, the Air Quality Control Act. and ordinances, to 9 prevent or abate air pollution within the boundaries ofBernalillo county, except for Indian lands over which the 1O board lacksjurisdiction. 11 I." Allowable emissions" means: 12 (I) Any dcpartment or federally enforceable pcrtnit term or condition which limits the quantity, rate, ]3 or concentration ofemissions ofair pollutants on acontinuous basis, including any requirements which limits the 14 level ofopacity, prescribe equipment. set fuel specifications, or prescribe operation or maintenance procedures for a 15 source to assure continuous reduction that are requested by the applicant and approved by the department or, 16 determined at the time ofissuance or**r~newal** ofapermit to be an applicable requirement. 17 (2) Any federally enforceable emissions cap that the permittee has assumed to avoid an applicable 18 requirement to which the source would otherwise be subject. 19 J. '"Ambient" means that portion ofthe atmosphere, external to buildings, to which the general 20 public has access. 21 K.··Applicable requirement" means any ofthe following, and includes requirements that have been 22 promulgated or approved by the board or EPA through rulcmaking: 23 (1) Any standard or other requirement provided for in the New Mexico state implementation plan 24 approved by EPA, or promulgated by EPA through rulcmaking, under Title I, including Parts C or D, ofthe federal 25 act. 26 (2) Any term or condition ofany pre-construction permit issued pursuant to regulations approved or 27 promulgated through rulemaking under Title I. including parts C or D. ofthe federal act. 28 (3) Any standard or other requirement: 29 (a) under Section III or 112 ofthe federal aet; 30 (b) ofthe acid rain program under Title IV ofthe federal act or the regulations promulgated 3 I tbereunder: 32 (c) governing solid waste incineration under Section 129 ofthe federal act; 33 (d) for consumcr and commercial products under Section 183(e) ofthe federal act; 34 (e) ofthe regulations promulgated to protect stratospheric ozone under Title VI ofthe federal 35 act, unless the administrator has determined that such requirements need not be contained in a Title V permit. 36 (4) Any requirements established pursuant to Section 504(b) or Section 114(a)(3) ofthe federal act. 37 (5) Any national or state ambient air quality standard. 38 (6) Any increment or visibility requirement under Part C ofTitle I ofthe federal act applicable to 39 temporary sources pertnitted pursuant to Section 504(e) ofthe federal act. 40 (7) Any regulation adopted by the board in accordance with the Joint Air Quality Control Board 41 Ordinances pursuant to the Air Quality Control Act, and the laws and regulations in effect pursuant to the Air 42 Quality Control Act. 43 L. '"Breakdo malfunction r upset" means any sudden, infrequent, and not reasonably 44 preventable failure ofair pollution ipment, orprocess equipment, which causes a process to not operate 45 in anormal manner. Failures thatare caused by process imbalance, poor maintenance or careless operation are not 46 breakdowns. 47 M. '"Carbon monoxide" or ··CO" means a colorless, odorless, poisonous gas composed of 48 molecules containing asingle atom ofcarbon and asingle atom ofoxygen with a molecular weight of28.0 1 g/mole. 49 N. "Chemical process" means any manufacturing processing operation in which one or more 50 changes in chemical composition or chemical properties are involved. 51 O. "Coal burning equipment" means any device used for the burning ofcoal for the primary 52 purpose ofproducing heat or powerby indirect heat transfer in which the products ofcombustion do not come into 53 direct contact with other materials. 54 P. "Commenced" means that an owneror operatorhas undertaken acontinuous program of 55 construction or that an owneroroperatorhas entered into a binding agreement or contractual obligation to undertake 56 and complete, within a reasonable time, a continuous program ofconstruction or modification.

20.11.1 NMAC Public Review Draft 5/22/09 21 Q. ""Construction" means fabrication. ereetion. or installation ofan affected facility. 2 R. '''Crematory'' means any combustion unit designed and uscd solely for cremating human or 3 animal remains or parts and tissues thereof. and other items normally associated with the cremation process, but not 4 including pathological waste. 5 S. "Department" means the Albuquerque environmental health department, which is the 6 administrative agency ofthe Albuquerque/Bernalillo county air quality control board. 7 T. '''Director'' means the administrative head ofthe Albuquerque environmental health department or 8 a designated representative(s). 9 U. "Emission limitation or standard" means a requirement established by EPA, the State 10 Implementation Plan (SIP), the Air Quality Control Act, local ordinance, permit, or board [p8fl-e<] regulation, that II limits the quantity, rate or concentration, or combination thereof, ofemissions ofregulated air pollutants on a 12 continuous basis, including any requirements relating to the operation or maintenance ofa source to assure 13 continuous reduction. 14 V. '" EPA" "means the United States environmental protection agency or the EPA's duly authorized 15 representative. 16 W. "Excess emissions" means [emisgisflS sfaft airJ3slhttaflt 1ft eJESeSS sfaft emissisfl limit ar 17 !ltaftaara.] the emission ofan air contaminant. including a fugitive emission. in excess ofthe quantity. rate. opacity 18 or concentration specified by an air quality regulation or permit condition. {20.11.49.7.F NMAC: 19 X. "'Excess emissions report" means a report submitted by a stationary source at the request ofthe 20 departmentin order to provide data on the source's compliance with emission limits and operating parameters. 21 Y. "'Federal act", ""act" or "CAA" means the Federal Clean Air Act, 42 U.S.C. Section 7401 22 through 7671 et .eq., .. amended. 23 Z. "'Federal elass I wilderness areas" means areas designated by the EPA as such. Federal class I 24 wilderness areas within 100 kilometers ofBernalillo county are Bandelier wilderness, Pecos wilderness, and San 25 Pedro Parks wilderness. 26 AA. ""Fluid" means either ofthe two states ofmatter, liquid or gaseous. 27 BB. "'Fugitive emissions" means any emissions which cannot reasonably pass through a stack, 28 chimney, vent, or other functionally-equivalent opening or is not otherwise collected, unless the emission is 29 otherwise regulated by the federal act, the Air Quality Control Act, or the laws and regulation in effect pursuant to 30 the act. 31 CC. "'Grain" means that unit ofweight, which is equivalent to 0.0648 grams. 32 DD. "Hazardous air pollutant" means an air contaminantwhich has been classified pursuant to the 33 federal act, the Air Quality Control Act, or laws and regulations in effectpursuant to the act. 34 EE. ·'Hydrocarbons" or "HC" means any chemical compound ofa class ofaliphatic, cyclic, or 35 aromatic chemical compounds containing mostly hydrogen and carbon. Hydrocarbons are highly reactive in the 36 presence ofnitrogen oxides and sunlight. All are precursors to more serious airpollutants such as ozone and 37 nitrogen dioxide. 38 FF. "'Hydrogen sulfide" or "'HzS" means the chemical compound containing two atoms ofhydrogen 39 and one of.ulfurwith a molecularweight of34.07 glmole. 40 GG. "Incinerator" means any furnace used in the process ofburning solid waste for the purpose of 41 reducing the volume, by removing combustible matter. 42 HH. "'Inedible animal by-product processing" means operations primarily engaged in rendering, 43 cooking, drying, dehydration, digesting, evaporating and/orconcentrating ofanimal proteins and fats. 44 

### n. "'Kraft mill" means any pulping process, which uses an alkaline solution for a cooking liquor. 45 JJ. "'Lead" or "'Pb" means a heavy metal, with a molecular weightof207.19 glmole that is 46 hazardou. to health ifbreathed or swallowed. 47 KK. "'Malfunction" means any sudden and unavoidable failure ofairpollution control equipment or 48 process equipmentbeyond the control ofthe owneroroperator. including malfunction during startup or shutdown. 49 A failure that is caused entirely or in part by poormaintenance. careless operation. or any other preventable 50 equipment breakdown shan not be con.idered a malfunction.',20.1 I A9.7.0**1'~IAC** \ 51 I""'ILL. "'Modification" means any-physical change in or change in the method ofoperation ofa 52 [statieftary] source [wHisH iftereases] that results in an increase in the potential [ffi-emi.t] emission rate of-any 53 regulated air contaminant emitted by the [statisRary] source or (whiG-It] that-results in the emission ofany regulated 54 air contaminantnotpreviously emitted. but does not include: 55 (I) a change in ownership ofthe source: 56 (2) routine maintenance. repairorreplacement;

20,11.1**~MAC** Publie Review Draft 5/22/09 31 (3) installation ofair pollution control equipment. and all relatedprocess equipment and materials 2 necessary for its operation. undertaken for the purpose ofcomplying with regulations adopted by the environmental 3 improvementboard or the local board or pursuant to the federal act: or 4 (4) unless previously limited by enforceable permit conditions: 5

... (a) an increase in the production rate. ifsuch increase does not exceed the operating design 6 capacity ofthe source: 7

......... Cb) an increase in the hours ofoperation; or 8 ec) use ofan alternative fuel or raw material if. prior to January 6.1975. the source was capable 9 ofaccommodating such fuel or raw material. or ifuse ofan alternate fuel orraw material is caused by any natural 10 gas curtailment oremergency allocation or any other lack ofsupply ofnatural gas.**{N~1** AOCA1 II [1:,.b1MM,. "New source" means any stationary source, the construction or modification ofwhich is 12 commenced after the filing ofa regulation applicable to the stationary source. 13 [MMJNN. '·Nitrogen dioxide" or "NOz " means a reddish brown, poisonous gas composed of 14 molecules containing a single atom ofnitrogen and two ofoxygen with a molecular weight of46.0 glmole. 15 [NNIOO.**~·Nitrogen** oxides or NOx" is a class ofchemicals containing varying quantities of 16 nitrogen and oxygen that are created from combustion processes taking place at high temperatures and high 17 pressures (e.g., inside automotive engine cylinders or in high temperature boilers). Examples ofnitrogen oxides are 18 NO, NOz , N03• N20z , and NzOj. Nitrogen oxides are also referred to as oxides ofnitrogen. 19 [()QIPP. "NMAC" means New Mexico administrative code, which contains the rules adopted by 20 all rulemaking agencies ofthe state ofNew Mexico and the rules adopted by the A-BC AQCB. 21 [IIPJQQ. "Open burning" means the combustion ofany material without the following 22 characteristics: 23 (I) control ofcombustion air to maintain adequate temperature for efficient combustion; 24 (2) containmentofthe combustion reaction in an enclosed device to provide sufficient residence time 25 and mixing for complete combustion; and 26 (3) emission controls for the gaseous combustion products. 27 [OOJRR.**~·Operator"** means the person(s) responsible for the overall operation ofa source. 28 I&KISS. ··Owner" means the person(s) who owns a source or part ofa source. 29 (SS)TT. ··Ozone or 0 3" means a pungent, colorless gas composed ofmolecules containing three atoms of 30 oxygen with a molecular weight of48.0 g/mole. 31 ll+jUU. "Part" means [IRO .0g"lalioa ""meo. ia IRO**~IMAC].** the required NMAC designation 32 for the normal division ofa chapter. A part cOruiists ofa unified body ofrule material applying to a specific function 33 or devoted to a specific subject matter. Structurally. a part is the equivalent ofa rule.: 1.24.1.7.AA NMAC: 34 [,y.,yIVV. ··Particulate matter" or**~·PM"** means any airborne finely divided solid or liquid 35 material such as dust, smoke, mist. fumes or smog found in air or emissions. 36 l¥¥jWW. "Particulate matter emissions" means all finely divided solid or liquid material, other 37 than uncombined water, emitted to the ambient air as measured by the reference method in 40 CFR 60, Appendix A, 38 Method 5, or an equivalent method approved by the EPA. 39 

### I 

## ww. fRo.lo",'oElJ] 40 XX.**'~Pathological** waste destructor" means any equipment. which is used to dispose ofpathological 41 waste by combustion or olher process, which is approved by EPA. 42 YY. ·'Performance test" means the data, which is the result ofa test perfonned as required by the 43 department to determine compliance. 44 ZZ. uPermit" means any permit or group ofpermits, modifications, renewals or revisions authorizing 45 the construction or operation ofa stationary source pursuant to the federal act, the Air Quality Control Act, or laws 46 and regulations in effect pursuant to the act. 47 AAA.**·~Permittee"** means the owner or operator identified in any permit application or permit. 48 BBB. "Person" means any individual, partnership, finn, public or private corporation, association, trust, 49 estate, political subdivision or agency, or any other legal entity or their legal representatives, agents or assigns. 50 CCC. ··Photochemical oxidants" means an air pollutant, which is fonned by the action ofsunlight on 51 oxides ofnitrogen and hydrocarbons. 52 DDD.**~~PMlo** ", "PMz .s "or**~·PMI"** means particulate matter with an aerodynamic diameter less than or 53 equal to 10,2.5, or I micrometers, respectively. 54 EEE.**~·PMz.s** emissions" meanS finely divided solid or liquid material with an aerodynamic diameter 55 less than or equal to a nominal 2.5 micrometers emitted into the ambient air as measured by the reference method in 56 40 CFRPart 50, Appendix L, approved by the EPA.

20,11.1 NMAC Public Review Draft 5/22/09 41 FFF.**~'PMIO** emissions" means finely divided solid or liquid material with an aerodynamic diameter 2 less than or equal to a nominal 10 micrometers emitted into the ambient air as measured by the reference method in 3 40 CFR Part 50, Appendix J and M, orequivalent method approved by the EPA 4 GGG. "Pollution control device' or "'air pollution control equipment" means any device, equipment, 5 process or combination thereof, the operation ofwhich may limit. capture, reduce, confine, or otherwise control 6 regulated air pollutants or convert for the purposes ofcontrol any regulated airpollutant to another form, another 7 chemical or another physical state. This includes, but is not limited to, sulfurrecovery units, acid plants, baghouses, 8 precipitators, scrubbers, cyclones, water sprays, enclosures, catalytic converters, and steam or water injection. 9 HHH.**'~Portable** stationary source" or "temporary stationary source" means a stationary source 10 capable ofchanging its location with limited dismantling or reassembly which is associated with a specific II construction project or increased production demand. 12 III. "Potential to emit" or "pre-controlled emission rate" means the maximum capacity ofa 13 stationary source to emit any air contaminant under its physical and operational design. Any physical or operational 14 limitation on the capacity ofa source to emitan air pollutant, including air pollution control equipment and 15 restrictions on hours ofoperation oron the type or amount ofmaterial combusted, stored, or processed, shall be 16 treated as part ofits design ifthe limitation is federally enforceable or is included in a permit issued by the 17 department. However, the potential to emit for nitrogen dioxide shall be based on total oxides ofnitrogen. 18 JJJ. "Process equipment" mean.'il any equipment used tor storing, handling, transporting, processing 19 or changing any materials whatsoever but excluding that equipment specifically detined in these regulations as 20 incinerators, crematories, pathological waste destructors, pathological destructors and medical waste destructors. 21 KKK. "Process weight" means the total weight ofall materials introduced into any specific process, 22 which causes any discharge ofair contaminants into the atmosphere. Solid fuels introduced into any specific 23 process will be considered as part ofthe process weight, but liquid and gaseous fuels and combustion air will not. 24 LLL.**'~Process** weight rate" means the hourly rate derived by dividing the total process weight by the 25 number ofhours in one complete operation from the beginning ofany given process to the completion thereof, or 26 from the beginning to the completion ofa typical portion thereot: excluding any time during which the equipment is 27 idle. 28 MMM, [Reserved] 29 NNN. "Regulated air pollutant" means the following: 30 (I) any pollutant for which a national. state, or local ambient air quality standard has been 31 promulgated; 32 (2) any pollutant that is subject to any standard promulgated under Section III ofthe federal act; 33 (3) any Class I or II substance subject to any standard promulgated under or established by Title VI 34 ofthe federal act; or 35 (4) any pollutant subject to a standard promulgated under Section 112 or any other requirements 36 established under Section 112 ofthe federal act. 37 000. "Responsible official" means one ofthe following: 38 (1) For a corporation: a president, secretary, treasurer, or vice-president ofthe corporation in charge 39 ofa principal business function, orany other person who performs similarpolicy ordecision-making functions for 40 the corporation, oraduly authorized representative ofsuch person ifthe representative is responsible for the overall 41 operation ofone ormore manufacturing, production, or operating facilities applying for, or subject to a permit and 42 either: 43 (a) the facilities employ more than 250 persons or have gross annual sales or expenditures 44 exceeding $25 million (in second quarter 1980 dollars); or 45 (b) the delegation ofauthority to such representatives is approved in advance by the 46 department. 47 (2) For a partnership or sole proprietorship: a general partner or the proprietor, respectively. 48 (3) For a municipality, state, federal or otherpublic agency: either a principal executive officer or 49 ranking elected official. For the purposes ofthis regulation, a principal executive officer ofa federal agency 50 includes the chiefexecutive officer having responsibility for the overall operations ofa principal geographic unit of 51 the agency (e.g., a regional administrator ofEPA). 52 (4) For an acid rain source: the designated representative (as defined in Section 402(26) ofthe 53 federal act) in so far as actions, standards, requirements, or prohibitions underTitle IV ofthe federal act or the 54 regulations promulgated thereunder are concerned, and for any otherpurposes under 40 CFR. Part 70. 55 PPP.**~'Shutdown"** means the cessation ofoperation ofany air pollution control equipment, orprocess 56 equipment [erpresess fer eR)' pH",ese].

20.11.1 NMAC Public Review Draft 5/22109 5I QQQ. [Reservcd] 2 RRR. [Reservcdl 3 SSS. "Smoke" means small gas-borne particles resulting from incomplete combustion, consisting 4 predominantly, but not exclusively, ofcarbon, soot and combustible material. 5 TTT.**~'Solid** waste" means garbage; refuse; yard waste; food wastes; plastics; leather; rubber: sludge; 6 and other discarded combustible or noncombustible waste, induding solid, liquid, semisolid; or contained gaseous 7 material resulting from industrial, commercial, mining, and agricultural operations, and from community or 8 residential activities, and from waste treatment plants. water supply treatment plants, or air pollution control 9 facilities; but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in 10 irrigation return flows or industrial discharges which are point sources subject to permit under Section 402 ofthe 11 Federal Water Pollution Control Act, or source, special nuclear, or byproduct material as defined by the Atomic 12 Energy Act. 13 

### uuu. [Reserved] 14 VVV.**~~Stack,** chimney, vent, or duct" means any conduit or duct emitting particulate or gaseous 15 emissions into the open air. 16 WWW.**~'Standard** conditions" means the conditions existing at a temperature of70u F (25 U C) and 17 pressureofI4.7psia(760mmHg). 18 XXX.**'~Standard** cubic foot" means a measure ofthe volume ofone cubic foot ofgas at standard 19 conditions. 20 YYY.**~'Startup"** means [the] setting into operation [ef] any air pollution control equipment, Q!..process 21 equipment

## r eF**~Fe.eS,.** feF**aR~' ~~lJle"e].**  22 ZZZ. "'Stationary source" means any building, structure, facility or installation, which is either 23 permanent or temporary, excluding a private residence, that emits or may emit any regulated air pollutant or any 24 pollutant listed under Section 112(b) ofthe federal act. the Air Quality Control Act, or the laws and regulations in 25 effect pursuant to the act. Several buildings, structures, facilities, or installations, or any combinations will be 26 treated as a single stationary source ifthey belong to the same industrial grouping, are located on one or more 27 contiguous or adjacent properties, and are under the control ofthe same person, or persons, or are under common 28 control. Pollutant-emitting activities shall be treated as the same industrial grouping ifthey have the same first two 29 digits ofan applicable standard industrial classification (SIC) code as described in the standard industrial 30 classification manual. or ifthey have the same tirst three digits ofan applicable north american industry 31 classification system fNAICSl code. {AQD: 32 AAAA. "Sulfur dioxide" or**~~S02"** means a pungent, colorless, poisonous gas composed ofmolecules 33 containing a single atom ofsulfur and two atoms ofoxygen with a molecular weight of64.07 glmole. 34 BBBB.**~~Total** reduced sulfur" means any combination ofsulfur compounds, except sulfur dioxide and 35 Iree sulfur. which test as reduced sulfur. including. but not limited to, hydrogen sulfide, methyl mercaptan, and ethyl 36 mercaptan. 37 CCCC.**~~Total** suspended particulate" or hTSP" means particulate matter as measured by the method 38 described in 40 CFR Part 50, Appendix B. 39 DODD.**~'Vapors"** means the gaseous form ofa substance, which exists in the liquid or solid state at 40 standard conditions. 41 EEEE. "Visible emission" means an emission that can be seen because its opacity or optical density is 42 above the threshold ofvision. 43 FFFF.**~'Volatile** organic compounds" or hVOC" means any compound ofcarbon, [whis8**flaFtisi~atBs** 44 iN**atmes~heFis ~hetes8emi6al**  feastisfls] excluding carbon monoxide, carbon dioxide, carbonic acid, metallic 45 carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions. 46 (I) VOC includes any such organic compound other than the following, which have been determined 47 to have negligible photochemical reactivity: methane; ethane; methylene chloride (dichloromethane); 1.1,1- 48 trichloroethane (methyl chloroform); 1.1.2-trichloro-1 ,2.2-tritluoroethane (CFC-113); trichlorotluoromethane (CFC49 11); dichloroditluoromethane (CFC-12); chloroditluoromethane (HCFC-22); tritluoromethane (HFC-23); 1.2- 50 dichloro I.l.2,2-tetratluoroethane (CFC-114); chloropentatluoroethane (CFC-ll5); 1,1,I-tritluoro 2,2- 51 dichloroethane (HCFC-I23); I.l, I,2-tetratluoroethane (HFC-134a); I, I-dichloro I-tluoroethane (HCFC-141 b); 1- 52 chloro I, I-ditluoroethane (HCFC-142b); 2-chloro-l,I,I,2-tetratluoroethane (HCFC-124); pentatluoroethane 53 (HCFC-125); I.I.2.2-tetratluoroethane (HFC-134); 1,l.I-tritluoroethane (HFC-143a); I,I-ditluoroethane (HFC54 152a); parachlorobenzotritluoride (PCBTF); cyclic, branched, or linearcompletely methylated siloxanes; acetone; 55 perchloroethylene (tetrachloroethylene); [ami**~eFll~eFe.aFbeR .e"'l'e~RaS;**  aRa. aRY aaailieRal Se

...**~e~RaS** "'hish 56 the ePA aele_iRes te haye Regligible**~heteshe** ...isal Feasti'ity.] 3,3-dichloro-1, 1, 1,2.2-pentatluoropropane

20.11.1 NMAC Public Review Draft 5/22/09 61 lHCFC225ca); l.3-dichloro-1,1,2,2.3-pentafluoropropane <HCFC-·225cb); 1.1.1.2,3,4,4,5,5,5- 2 dccalluoropcntane(HFC 43 10mee); difluoromethane(IlFC 32); ethyllluoride <HFC.,161); 1.1.1 ,3,3,3- 3 hcxafluoroDropane <HFC 236fa); 1,1,2,2,3-pcntatluoropropane <HFC 245ca); 1.1,2,3,3-pentatluoropropane fHFC 4 245eal; 1.1.1,2,3 pentafluoropropane (HFC 245eb); L, 1,1,),) pentafluoropropane fHFC 245[[1); I,l, 1,2.3,) 5 hexalluoropropane (fIFC 236ea); I, 1.1,3.3-pentalluorobutane (HFC 365mfc); chlorolluoromethane(HCFC-31); I 6 chloro-I-Iluoroethane mCFC-151 a); 1.2-dichloro-l,1.2-trifluoroethane <HCFC-123a); I, I, 1,2,2,3,3,4,4- 7 nonatluoro-4-methoxy-butane (C,F,oCH, or HFE-71 00); 2-(difluoromethoxymethyll-1, I, 1,2,3,3,3- 8 heptalluoropropane ((CF,),CFCF,OCH,); I-cthoxy-I, I,2,2,3,3,4,4,4-nonafluorobutane (C,F,OCZH, or HFE-7200); 9 2-(ethoxydifluoromethyll-1, I, 1,2,3,3,3-heptalluoropropane «(CF,),CFCF,OC,H,); methyl acetate; 1.1, 1.2,2,3,3- 10 heptafluoro-3-methoxy-propane (n-C,F,OCHl or HFE-70001; 3-ethoxy-1, I, I ,2,3,4,4,5,5,6,6,6-dodecalluoro-2- II (trilluoromethyll hexane <HFE-7500); 1,1, 1,2,3,3,3-heptalluoropropane (HFC 227ea); methyl formate (HCOOCH,l.; 12 1,I, 1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trilluoromethyl-pentane (HFE-7300); propylene carbonate; dimethyl 13 carbonate: and perfluorocarbon compounds which fall into these classes: 14 (a) cyclic. branched. or linear. completely fluorinated alkanes: 15 (bl cyclic. branched. or linear. completely fluorinated ethers with no unsaturations: 16 (el cyclic. branched. or linear. completely fluorinated tertiary amines with no unsaturations: 17 and 18 (dl sulfur containing perfluorocarbons with no unsaturations and with sulfurbonds only to 19 carbon and fluorine. 20 (2) For purposes ofdetermining compliance with emissions limits, VOC will be measured by the test 21 methods in the approved state implementation plan (SIP) or40 CFR Part 60. Appendix A. as applicable, Where 22 such a method also measures compounds with negligible photochemical reactivity, these negligibility-reactive 23 compounds may be excluded as VOC ifthe amount ofsuch compounds is accurately quantified, and such exclusion 24 is approved by the enforcement authority, 25 (3) As a precondition to excluding these compounds as VOC or at any time thereafter. the 26 enforcement authority may require an owner oroperator to provide monitoring ortesting methods and results 27 demonstrating, to the satisfaction ofthe enforcement authority, the amount ofnegligibly-reactive compounds in the 28 source's emiSSIOns. 29 (4) For purposes offederal enforcement for a specific source, the EPA shall use the test methods 30 specified in the applicable EPA-approved SIP, in a permit issued pursuant to a program approved or promulgated 31 under Title V ofthe Act. orunder40 CFR Part 51, Subpart I orAppendix S. orunder 40 CFR Parts 52 or 60, The 32 EPA shall not be bound by any state determination as to appropriate methods for testing or monitoring negligibly33 reactive compounds ifsuch determination is not reflected in any ofthe above provisions. 34 (5) The following compound(s) are VOC for purposes ofall recordkeeping, emissions reporting, 35 photochemical dispersion modeling and inventory requirements which apply to VOC and shall be uniquely 36 identified in emission reports, but are not VOC for purposes ofVOC emissions limitations or VOC content 37 requirements: t-butyl acetate. 38 (6) For the purposes ofdetermining compliance with California's aerosol coatings reactivity-based 39 regulation, (as described in the California Code ofRegulations, Title 17, Division 3. Chapter 1. Subchapter 85, 40 Article 3), any organic compound in the volatile portion ofan aerosol coating is counted towards that product's 41 reactivity-based limit. Therefore, the compounds identified in Subsection FFFF of20, II, I.7 NMAC as negligibly 42 reactive and excluded H·om EPA's definition ofVOCs are to be counted towards a product's reactivity limit for the 43 purposes ofdetermining compliance with California's aerosol coatings reactivity-based regulation. 44 (7) Forthe purposes ofdetermining compliance with EPA's aerosol coatings reactivity based 45 regulation (as described in 40 CFR Part 59

- National Volatile Organic CompoundEmission StandardsfOr 46 Consumer and CommercialProducts) any organic compound in the volatile portion ofan aerosol coating is counted 47 towards the product's reactivity-based limit. as provided in 40 CFR Part 59, Subpart E, Therefore, the compounds 48 that are used in aerosol coating products and that are identified in Subsection FFFF of20, II, 1,7 NMAC as 49 negligibly reactive and excluded from EPA's definition ofVOC are to be counted towards a product's reactivity 50 limit for the purposes ofdetermining compliance with EPA's aerosol coatings reactivity-based national regulation. 51 as prOVIded in 40 CFRPart 59, Subpart E, 140 CFR 51.1 OO.ls): 52 GGGG. "Measurements, abbreviations. and acronyms" 53 A-BC AQCB-Albuquerque/Bernalillo County Air Quality Control Board 54 ABT-Averaging, Banking and Trading (Program) 55 AIRS-Aerometric Information Retrieval System 56 AMPA-Albuquerque Metropolitan Planning Area

20,11.1 NMAC Public Review Draft 5/22/09 7I APCD-Air PollutionControl Division 2 API-American Petroleum Institute 3 AQIA-Air Quality Impact Assessment 4 AOI-Air Ouality Index 5 AQS-Air Quality Services 6 ASE-Nationallnstitute for Automotive Service Excellence 7 ASTM-American Society for Testing and Materials 8 ATS-Allowance Tracking System 9 BACT-Best Available Control Technology 10 Bhp-Brake horsepower II Btu-British thermal unit 12 C-Celsius 13 CAA(A)-federal Clean AirAct (Amendments) 14 CEM-Continuous Emission Monitor 15 CFC(.) -Chlorofluorocarbon(s) 16 dh-cubic feet per hour 17 cfm-cubic feet per minute 18 CFR-Code ofFederal Regulations 19 CO,-carbon dioxide. 20 CO-carbon monoxide. 21 COG-Mid-Region Council ofGovernments 22 CMAQ-Congestion Mitigation and Air Quality 23 cu. In.-cubic inch(es) 24 DER-Discrete Emission Rcductlon 25 DOE-Department ofEnergy 26 DOT-U.S. Department ofTransportation 27 DPM-Development Process Manual 28 ORB-Development Review Board 29 EA-Environmental Assessment 30 EHD-Environmental Health Department 31 EJ-Emission Inventory 32 EIS-Environmentallmpact Statement 33 EPA-U.S. Environmental Protection Agency 34 EPC-Environmental Planning Commission 35 ERC-Emission Reduction Credit 36 F-Fahrenheit. 37 FHWA-Federal Highway Administration, DOT 38 FMVCP-Federal Motor Vehicle Control Program 39 FR-Federal Register 40 ft.-feet 41 FTA-Federal Transit Administration, DOT 42 g-gram(s) 43 g/mole-grams per mole 44 gal-U.S. gallon(s) 45 GVW-Gross vehicle weight 46 GVWR-Gross vehicle weight rating 47 h-hour(s) 48 HAP-Hazardous Air Pollutants 49 HC-hydrocarbon(s) 50 Hg-mercury 51 hp.-horsepower 52 11M-Inspection/Maintenance 53 in.-inch(es) 54 ISTEA-Intermodal Surface-Transportation Efficiency Act (see SAFETEA-LUl 55 K-Kelvin 56 kg-kilogram(s)

20.1J.I NMAC Public Review Draft 5/22/09 81 km-kilometer(s) 2 kPa-kilopascal(s) 3 Ib.-pound(s) 4 [b/day-pounds perday 5 Ib-ft-pound-feet 6 Ib/br-pounds perhour 7 (b/yr-pounds per year 8 LAER-Lowest Achievable Emission Rate 9 LNG-Liquefied Natural Gas 10 LPG-Liquefied Petroleum Gas 11 LRTP-Long Range Transportation Plan 12 m-meter(s) 13 MACT-Maximum Achievable Control Technology 14 max.-maximum 15 MCO-Manufacturer's Certificate ofOrigin 16 "g-microgram 17 ,..g/m 3-microgram per cubic meter 18 mg-milligram(s) 19 mgim'-milligram percubic meter 20 mi.-mile(s) 21 min-minute(s) 22 ml-milliliter(s) 23 mm-millimeter(s) 24 MMBtu-million Btu 25 mmHg-millimeters ofMercury 26 mph-miles per hour 27 MPO-Metropolitan Planning Organization 28 MRCOG-Mid-Region Council ofGovernments 29 MSERC-Mobile Source Emission Reduction Credits 30 MSMTC-Mobile Source Modeling Technical Committee 31 MTBE-methyl tertiary butyl ether 32 MVD-MotorVehicle Division 33 MWe-megawatt electrical 34 N,-nitrogen. 35 NAAQS-National Ambient Air Quality Standards 36 NAMS-National Air Monitoring Station 37 NCore- National Core Multi-pollutant Monitoring Network 38 NDIR-nondispersive infrared 39 NEPA-National Environmental Policy Act 40 NESCAUMIMARAMA-Northeast States for Coordinated Air Use ManagementlMid-Atlantic Regional Air 41 Management Association 42 NESHAP-National Emission Standards for Hazardous Air Pollutants 43 NIST-National1nstitute ofStandards and Technology 44 NM-New Mexico 45 NMAC-New Mexico Administrative Code 46 NMSA-New Mexico Statutes Annotated 47 NO-nitric oxide 48 NO,-nitrogen dioxide 49 NOx -oxides ofnitrogen 50 No-number 51 NOV-Notice ofViolation 52 NMHC-Non-Methane Hydrocarbons 53 NSPS-New Source Performance Standards 54 NSR-New Source Review 55 O,-oxygen 56 O,-ozone

20.I I.I NMAC Public Review Draft 5/22/09 9I OMTR-Open Market Trading Rule 2 OTAG-Ozone TransportAssessment Group 3 OTe-Ozone Transport Commission 4 Pb-Iead 5 PIC-Public Involvement Committee 6 PM-Particulate Matter 7 PM,.,-Particulate MatterLess Than 2.5 microns 8 PMIO-Particulate MatterLess Than 10 microns 9 ppm-parts permillion by volume 10 ppm C-parts per million, carbon II PSD-Prevention ofSignificant Deterioration 12 [PSI Pell"taat StaRsaFs laso,,] 13 psi-pounds per square inch 14 psia-pounds per square inch absolute 15 psig-pounds per square inch gauge 16 PTE-Potential To Emit 17 PWD-Pathological Waste Destructor 18 QF-Qualifying Facility 19 R-Rankin 20 RACT-Reasonably Available Control Technology 21 R&D-Research & Development 22 RECLAIM-Regional Clean Air Incentives Market 23 ROG-Reactive Organic Gases 24 rpm-revolutions per minute 25 RTA-Regional Transit Authority 26 RTC-RECLAIM Trading Credit 27 RVP-Reid vaporpressure 28 s-second(s) 29 SAE-Society ofAutomotive Engineers 30 SAFETEA-LV-The Safe, Accountable, Flexible, Efficient Transportation Equity Act- A Legacy for Vsers 31 SBAP-Small Business Assistance Program 32 scf-standard cubic foot 33 SI-Intemational system ofunits 34 SIP-State Implementation Plan 35 SLAMS-State and Local Air Monitoring Station 36 SMOG-SMoke + tDG 37 SO,-SulfurDioxide 38 State DOT-New Mexico Department ofTransportation 39 STIP-State Transportation Improvement Program 40 TCC-Transportation Coordinating Committee 41 TCM-Transportation Control Measure 42 TES-Transportation Evaluation Study 43 TIP-Transportation Improvement Program 44 TMA-Transportation Management Association 45 tonlyr-tons per year 46 TPTG-Transportation Program TaskGroup 47 tpy-tons per year 48 TSP-Total Suspended Particulate 49 VPWP-Vnified Planning Work Program 50 UTPPB-Vrban Transportation Planning Policy Board 51 V.S.-Vnited States 52 VV-Vltraviolet 53 VE-Visible Emission(s) 54 YIN-Vehicle Identification Number 55 VMT-Vehicle Miles Traveled 56 VOC-Volatile Organic Compounds

20.11.1 NMAC Public Review Draft 5/22/09 101 VPMD-Vchicle Pollution Management Division 2 %-percent 3 "-degree(s) 4 [3121/77

. . . 111I2/XI, I I121/XI, 3116/X9, 6/16/92, 2126/93, 9/23/94, 12116/94, 1211/95, X/1/96; 20. II, 1.7 NMAC

- 5 Rn, 20 NMAC 11.011.7,1011/02; A, 7/1/04] 6 7 20.11.1.8 VARIANCES: [Reserved] 8 [12/1/95; 20.II.I.X NMAC

- Rn, 20 NMAC 11.01.1.8, 10/l/02J 9 10 20.11.1.9 SAVINGS CLAUSE: Any amendment to 20.1 1.1 NMAC which is tiled with the state records 11 center shall not affect actions pending for violation ofa city or county ordinance, [Air QHality Central 8e8rB 12 StaHaaFa I, Qeara RagalalieR.:**~Ie.** I. 2, aRa 2a,1 or [1'aR-+1 20.11.1 NMAC. Prosecution for a violation under prior 13 regulation wording shall be governed and prosecuted under the statute, ordinance, part or regulation section in effect 14 at the time the violation was committed. 15 [12/1/95; 20.11,1.9 NMAC

- Rn, 20 NMAC 11.01.1.9, 1011102] 16 17 20.11.1. 10 SEVERABILITY: Ifany section, paragraph, sentence, clause or word of[this**~afl]** 20.11.1 18 NMAC or any federal standards incorporated herein is for any reason held to be unconstitutional or otherwise 19 invalid by any court, tlie deciSIOn shall not atTect the validity ofremaining provisions of[Ihis**~aflJ** 20.11.1 NMAC. 20 [12/1/95; 20.11, 1.10 NMAC

- Rn, 20 NMAC 11,01,LlO, 1011/02] 21 22 20.11.1.11 DOCUMENTS: Documents incorporated and cited in [this**~afl]** 20.1 I. I NMAC may be viewed 23 at the Albuquerque environmental health department, 400 Marquette NW, Albuquerque, NM. 24 [12/1/95;20.11,1.11 NMAC- Rn,20 NMAC I1,0l.LI I &A, 10/1/02] 25 26 20.11.1.12 [Reserved

### I 27 [12/1/95; 20.11.1.12 NMAC

- Rn, 20 NMAC 11.0I,Ll2 & Repealed, 10/1/02; Rn, 20 NMAC 11,01.11.1, 10/1/02] 28 29 20.11.1.13 [Reserved] 30 [11/12/81.

. .3/24/X2, 8/1/96; 20.11.1.13 NMAC

- Rn, 20 NMAC 11.01.11.2, 1011/02; Repealed, 7/1/04] 31 32 20.11.1.14 IINTERPRETATIQI'I,**e"e.~1** a:'**'''~F.,.** ..lj'**~Fe"iaaa** telh. seRIFaF)' iR Ihesa FagalalieHs. 33 wneRe"er twa afmafe fJaFts aftnese fegu:latieRtllimit, EeRtret aF regu:late the emits:iantJ afa fJaFtisulaF aif 34 seHlaraiHaHt. tha raeFa FanIFi.I;"a eF stRHgaHI ,.hall ge\eFH.j Reserved. i )0.11 X 14 :--IMACJ 35 [3/24/82; 20.1 LI.I4 NMAC

- Rn. 20 NMAC I LOUU, 10/1102] 36 37 HISTORY OF 20.11.1 NMAC: 38 Pre-NMAC Hislory: The material in [[hi,.**~afl]** 20.1 LI NMAC was derived from that previously filed with the 39 commission ofpublic records

- state records center and archives. 40 Resolution No. I, Air Pollution Control Regulations ofThe Albuquerque Bernalillo County Air Quality Control 41 Board, X/6/71 ; 42 Regulation No. I, Air Pollution Control Regulations, 6/6/73; 43 Regulation No. I, Air Pollution Control Regulations, 7/9/73; 44 Regulation No. I, Air Pollution Control Regulations, 3121/77; 45 Regulation No. I, Resolutions

- Air PollutionControl Regulations, 3/24/82; 46 Regulation No. I, Resolution

- Air Pollution Regulations, 6118/86; 47 Resolution No.2, Ambient Air Quality Standards ofThe Albuquerque Bernalillo County Air Quality Control Board, 48 8/6171; 49 Resolution No.2, Ambient Arr Quality Standards ofThe Albuquerque Bernalillo County Air Quality Control Board, 50 6/6/73; 51 Standard No. I, Ambient Air Quality Standards, 11/12/81; 52 Regulation No.2, Definitions, 3124/82; 53 Regulation No.2, Definitions, 1/3/85; 54 Regulation No, 2, Definitions, 3116/89; 55 Regulation No.2, Definitions, 11/27/91; 56 Regulation No.2, Definitions, 6/16/92;

20.11.1 NMAC Public Review Draft 5/22109 11Regulation No. 26, Interpretation, 3/24/82. 2 3 History ofRepealed Material: 4 5 Other History: Regulation No. I, Air Pollution Regulations, filed 6118/86; Standard No. I, Ambient Air Quality 6 Standards, filed 11112/81; Regulation No.2, Definitions, filed 6116/92; and Regulation No. 26, Interpretation, filed 7 3/24/82; were all renumbered and reformatted into first version ofthe New Mexico Administrative Code as 20 8 NMAC 11.01, General Provisions, filed 10/27/95. 9 20 NMAC 11.01, General Provisions, filed 10/27-95 was renumbered, reformalled, amended and replaced by 10 20.11.1 NMAC, General Provisions, effective 10/1/02. I I

20.11.1 NMAC Public Review Draft 5/22109 1220.11.8.4 DURATION: Pernlanent. [20.11.8.4 NMAC

- N. 711/04]

20.11.8.11 INCORPORATION OF FEDERAL AMBIENT AIR QUALITY STANDARDS: Except as otherwise provided, the National Primary and Secondary Ambient Air Quality Standards ofthe United States 20.11.8.7 DEFINITIONS: The definitions in 20.11.1 NMAC apply to 20.11.8 NMAC. [20.11.8.7 NMAC

- N, 7/1/04]

20.11.8.10 DOCUMENTS: Documents incorporated and cited in 20.11.8 NMAC may be viewed at the Albuquerque environmental health department, 400 Marquette NW, Albuquerque, NM. [20.11.8.10 NMAC

- N, 711/04] ENVIRONMENTAL PROTECTION ALBUQUERQUE

- BERNALILLO COUNTY AIR QUALITY CONTROL BOARD AMBIENT AIR QUALITY STANDARDS TITLE 20 CHAPTER 11 PART 8

20.11.8.9 SEVERABILITY: Ifany section, paragraph, sentence, clause or word 01'20.11.8 NMAC or any federal standards incorporated herein is for any reason held to be unconstitutional or otherwise invalid by any court, the decision shan not alTect the validity ofremaining provisions of20.11.8 NMAC. l20.11.8.9 NMAC

- N, 7/1/04] 20.11.8.8 SAVINGS CLAlISE: Any amendment to AmbientAir Quality Standards. 20.11.8 NMAC, that is filed with the state records center, shall not affect actions pending for violation ofa city orcounty ordinance, the air quality regulations for Albuquerque and Bernalillo county or a permit issued by the department. Prosecution for a violation under a prior statute, ordinance, regulation or permit shall be governed and prosecuted under the statute, ordinance or regulation in effect at the time the violation was committed. [20.11.8.8 NMAC

- N, 7/1/041 20.11.8.6 OBJECTIVE: [Ths eGiseli'''s ef2Q.11.8 NMAC is] To adopt local ambient air quality standards that are identical to the fcderal National Primary and Secondary Ambient Air Quality Standards codified at40 CFR Part 50. and to adopt applicable stateAmbientAir Quality Stundards codified at 20.2.3 NMAC. [20.11.8.6 NMAC

- N, 711/04] 20.11.8.2 SCOPE: , A. 20.11.8 NMAC is applicable Ito the eity of**AI"H~HeF~He** 80.11 within Bernalillo county. 

### 2 B. Exempt: 20.11.8 NMAC does not apply to sources within Bernalillo county, which are**loc~d** on Indian lands over which the Albuquerque

- Bernalillo county air quality control board lacksjurisdiction. -<

-, ) [20.11.8.2 NMAC

- N, 711/04] 'J 20.11.8.3 STATUTORY AUTHORITY: 20.11.8 NMAC is adopted pursuant to the authority**provid~** in the New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4, 74-2-5C; the Joint Air Quality Contral, Board Ordinance, Bernalillo County Ordinance 94-5 Sections 3 & 4; the Joint Air Quality Control Board**Ord!~nce,.** Revised Ordinances ofAlbuquerque 1994 Sections 9-5-1-3 & 9-5-1-4. 

## ce-: [20.11.8.3 NMAC

- N, 7/1/041 20.11.8.I ISSUING AGENCY: Albuquerque

- Bernalillo County Air Quality Control Board. P.O. Box 1293. Albuquerque, NM 87103. Telephone: (505)**[7~g** 20QQJ 768-2601. [20.11.8.1 NMAC

- N, 711/04]

20.11.8.5 EFFECTIVE DATE: [Ths effesti,·s aats efPaFt g in,] July 1,2004, unless a later date is cited at the end ofa section. The efTective date ofa specific section is located at the end ofeach section within the historical brackets. As required by the New Mexico Air Quality Control Act, Chapter 74, Article 2, Section 6 NMSA 1978, no regulation or emission control requirement or amendment thereto, orrepeal thereof, shall become effective until 30 days after its filing under the State Rules Act. Chapter 14, Article 4 NMSA 1978. [20.11.8.5 NMAC

- N, 711/04] I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56

20.11.8 NMAC Public Review Draft 5/22/09 I8-hour average 40 CFR 50,15 0,0750om 0075 oom none: 3'27/08 FR. Vol. 73, No, 60, 16436-165l4: (Etfective May 27,2008) :http: '':wv'·w.epa.gov/air,:ozonepol1ution/srandards.htmi:

24-hour average 40 CFR 50,13 35 uglm' 35 ug/m3 none (Effective December 18. 2006) :IOil7i06 FR, VoL 71. ;-.10, 200, 01144-61233 : Particulate Maller (PM",)**b[2!"41-!lll;e"'u"r"'a"'\"'.r"a'l'g"'.-:-----:!'49~C±I''!'R'=:;~9;1;,,±7----4~8:;>-j'"'"1gijlffim'---** ..**~:;.:;-l''"''l'~''''m** ...'---R"'8

.. R'''.J : IOi 1706 I'R, VoL 71, No, 200.61144-61233: Ozone (0,) t-[II-Il!l<>eW'

......**a"\I€'."'ra'lg~.e-----------l9~,-h12.!j[:Y9+J** l'pp!'mm------\J9,..t,**1"';2~[9~]HP'lp**.. mR---<R",e

.. "",.]: Revoked, 8'3;05 FR VoL 70, No, 148,44470-78, effcctive 611505:

none 0.10 ppm

none 0,02 ppm

15,Q uglm' 0,5 ppm none

none none 0.14 ppm Standards Federal Federal New Mexico Primary Secondary State 9[,9] ppm none 8,7 ppm 35 ppm none 13,1 ppm

none none 0,10 ppm 0,053 ppm 0,053 ppm 0,05 ppm

0,03Q ppm Reference

40 CFR 50.4 40 CFR 50,5 SUMMARY OF FEDERAL AND STATE AMBIENT AIR QUALITY STANDARDS: Pollutant 20,11,8,13

Annual {arithmetic mean} 40 CFR 50.4

Annual {arithmetic mean} 40 CFR 50,7 & 15,Q flg/m3 40 CFR 50,13 20,11.8,12 INCORPORATION OF STATE AMBIENT AIR QUALITY STANDARDS: Except as otherwise provided, the state AmhientAir Quality Standards ofthe environmental improvement board coditied <It 20.2,3 NMAC [,**.f~.tiy.** a.tell.r 31, 2992,J are hereby incorporated into 20, 11.8 NMAC Section 20,1 L8, 13 NMAC is a summary ofthe federal and state standards incorporated in 20, II ,8 NMAC {AQD: [20,11.8,12 NMAC

- N, 7/1/04] environmental protection agency including the General Provisions thereto, codified at 40 CFR Part 50 (including appendiccs), as amended through [lui)' IS, 19971 January 12,2009, are hereby incorporated into 20,1 LS NMAC, Section 20, IL8, 13 NMAC is a summary ofthe federal and state standards incorporated in 20, I1.8 NMAC : '\QD: [20,11.8,11 NMAC-N, 7/1/04]

Nitrogen Dioxide (NO,) 24-hour average NA I-hour average 40 CFR 50,8

3-hour average Annual arithmetic mean 40 CFR 50,11 Carbon Monoxide (CO) 8-houraverage 40 CFR 50,8

Sulfur Dioxide (SO,) 24-hour average 8-hour average 40 CFR 50,I

# ° 0,08 ppm 0,08 ppm none (The 1997 standard

- and the implementation rules for that standard

- will remain in place for implementation pumoses as EPA undertakes rulemaking to address the transition from the 1997 ozone standard to the 2008 ozone standard), lhttp>'/\

...'v.w.epa.gov/ainozonepolluliun/standards.htmIJ 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56

20,11.8 NMAC Public Review Draft 5/22/09 2HISTORY OF 20.11.8 NMAC: None t[,A

... "'RIRR

......

alha

.. f"'ittfh.lRm"'."ti<i6rmme

...**aRR-----!i39Q-t~'l~~'mm**..**'---~3;(Ql-H~.,glflmR** .. ·----iR"'e

.. R

....] : 10.1700 FR. Vol. 71. No. 200. 61144-61233: Lead (Pb) t[QQH

..**",art~."f~I~r-·**f<[alFflit·t""'mme.tti<i6....,m

.....**aRtl-Jha~''''.!!Sfa!!lgl!!.!_-~4HQ!:C~I'BRd3~Qt:.hI2~---lI-c!.3;..,.~g~''mm**..**·---j.,1.,33-t~''~,jlmm.;----lR"'e>fR".]** : 11I12i08 FR, Vol. 73. No. 219. 66964-67062 i

20.11.8.14 INTERPRETAnON: Except as expressly provided to the contrary in these regulations, whenever two or more parts ofthese regulations limit, control or regulate the emissions ofa particular air contaminant, the more restrictive or stringent shall govern. [20.11.8.14 NMAC

- N, 7/1/04] none 150**~g1m'**

O.15ug/m3 none : Iii 12i08 FR. Vol. 73. No. 219. 66964-67062: 150**~g/ml** Particulate Matter (PM",) 24-hour average 40 CFR 50.6

Hydrogen Sulfide I-hr average none none 0.010 ppm Total Reduced Sulfur 1/2-hour average none none 0.003 ppm Particulate Matter (TSP) 24-hour average none none 150**~g/m'** 7-dayaverage none none**IIO~g/m3** 30-dayaverage none none 90**~g/m3** Annual geometric mean none none 60**~g1m'** [20.11.8.13 NMAC

- N, 7/1/04] Rolling 3-month average 40 CFR 50.16 0.15ug/m' (Effective 1 year after date ofarea attainment designation) I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37

20.11.8 NMAC Public Review Draft 5/22109 3AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

Daled: July 22.**~()05.** Stephen P. Metruck, Captaill. 

### u.s. Coast Cuurd, Cap/Hili ofrhe Port. PugetSound. [FR Doc. U5-15:\U9 Filed f1-2-(15: 8:45 f-Iml BILLING CODE 491o-15-P

SUMMARY: On April 30. 2004. EPA published the first phase ofits final rule to implement the a-Hour Ozone National Ambient Air Quality Standard (NAAQS) (Phas. 1 Rule). At that same time. EPA also published 8-hour ozone ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 snd 81 [FRL-7947-4) Identification ofOzone Areas for Which the 1-HourStsndard Has Been Revoked snd Technical Correction to Phase 1 Rule**~t.oD** 

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### rA... modified and clarified bv (0 Effective dnte. This seetion applies The Special Local ReguIA .; Anlloullcpmenl 2002-17" (2002-1 CB. for taxable years ending on or after 1no. l301)**provide~** for a regulated area 5Iil), modified and amplified by Rev. August 2. 2005. 10 protect speelators while providing Proc. 2002-19 {:W02-1 Ga. 696). and unobstructed vessel traffic lanes 10 Mark E. Matthews. amplified, clarified, and mndified by ensure timely arrival ofemergency RHV. Proc. 2002-54 (:W02-2 CB. 4J2),**DE~(."~I1IY** (:ommi

......iol1p.r!ol·Se[Vic()s (lnd fBsponse craft. MOVfllnents are regulated**~JJJor(,f!Jllf)/lt.** t·,·,r

..II vessels ,'" the .orea deser,·I,.,1 ilnd §601.601(d)(z)(iillbj "rthis n. " Approved: fuly 14, 2U05, unless ntherwise relJulated by the COTP chaplHr), For purposes ofForm :\115, M Eric Solomon, or his desionee, The COTP may he

..Application for Change in Accounting /') h d I ' h i\cling Deputy ihsis/ant Sp.crtl/U1y Of/he lIssisted by other Federal. State, or local Met 0 ," the t esignated number.or leT nHlsury. law enforcement agencies in enforcing automatic accounting method change [FR Doc. 05-15:\fi:\ Filed H-Z--05; H:45 ami Ihis SLR. authorized by this pamgraph (e) is ··!.I5." BILliNG CODE 4830-01-P The safety zone regulation (33 CFR (fForm 3115 is revised or renumbered, 1fi5.1319) establishes requirements for any**n~ference** in this section to thai form all vessels to ohtain permission ofIhe is**tn~ated** as a reference to the revised DEPARTMENT OF HOMELAND COTP or the COTP's designated or renumbered form. For the taxpayer's SECURITY reprflsentalive to enter, move within, or sflcond and subse<)uent taxable years exit the safety zone when it is enforced, ending on or after August 2, 2005, Coast Guard Entry into this safety zone is prohibited requests to secure the consent ofthe unless otherwise exempted or excluded Commissioner must be made under the 33 CFR Part 100 and Part 165 under 33 CFR 165.1319 or unless administrative procedures, as modified authorized by the COTP or his designee. by paragraphs (e)(2) through (4) ofthis [CGD13-05-029J The Captain ofthe Port Puget Sound section, for ohtaining the RIN 1825-AA08 and 1625-AAOO will hegin enforcing the Seattle Seafair Commissioner's advance consent to a Unlimited Hydroplane Race Special change in accounting method (for Special Local Regulation (SLR) and Local Regulation (SLR) as per 33 CFR further guidance, for example, see Rev. Safety Zone RegUlations: Seattle 100.1301, find the Seafair Blue Angels Proc. 97-27 (1997-1 C.B. 680), as Seafalr Unlimited Hydroplane Race and Air Show Performance Safety Zone as modified and amplified by Rev. Proc. Blue Angels Air Show Performance per 33 CFR 165.1319. on Thursday. 2002-19 (2002-1 C.B. 696). as amplified 2005. Lake WaShington, WA August 4,2005 at 8 a.m. Pacific daylight and clarified by Rev. Proc. :W02-54 time. These regulations will be enforced (2002-2 C.B. 4:-12), and AGENCY: Coast Guard, DHS. until Sunday, August 7, 2005 at 8 p.m. S601.601(d)1J2)(iiJ(h) ofthis chapter). ACTION: Notice ofenforcement. Pacific daylight time. All persons and

---- vessels are authorized to enter, move (2) Scope limitations. Any limitations SUMMARY: The Captain ofthe Port within, and exit the regulated area or on obtaining the automatic consent of (COTP) Puget Sound will begin safety zone on or after Sunday, August the Commissioner do not apply to a enforcing thfl Seattle Seafair Unlimited 7, 2005 at Bp.m. Pacific daylight time taxpayer seeking 10 change its method of Hydroplane Race Special Local unless a new notice ofenforcement is accounting to comply with this section Regulation (SLR) and Seafair Blue issued hefore then. for its first taxable year ending on or Angels Air Show Performance Safety after August 2. :W05. Zone Regulation. This year's events will be held on Thursday, August 4, 2005. (3) Auditprotection. Ataxpayer that through Sunday, August 7, 2005. changes its method ofaccounting in accordance with this paragraph (e) to DATES: The regulations found in 33 CFR LOO.1301 and in 33 CFR 165.1319 will comply with these temporary be enrorced from B a.m. 10 B p.m. I'acific regulations does not receive audit .' daylight time from August 4. 2005 to protection ifits method ofaccounting for additional section 263A costs is an August 7. 2005. issue under consideratiou at the time FOR FURTHER INFOAMATION CONTACT: the application is filed with the national Lieutenant Junior Grade Jessica Hagen. office. clo Captain ofthe Port Puget Sound, Coast Guard Sector Seattle. 1519 (4) Section 481(a) adjustment. A Alaskan Way South, Seattle WA 98134 change in method ofaccounting to at (206)**217~232** to obtain information conform to these temporary regulations concerning enforcement ofthis rule. requires a section 48 l{a) adjustment. SUPPLEMENTAAY INFORMATlON: On July 2, The section 481(a) adjustment period is 2001. the Coast Guard published a final two taxable years for a net positive rule (66 FR 34822) modifying the adjustment for an accounling method regulations in 33 CFR 100.1301, for the change that is made to conform to these safe execution ofthe Seattle Seafair temporary regulations. Unlimited Hydroplane races on the waters ofLake Washington. On June 24, 2004, the Coast Cuard published a final rule (69 FR 35250) in 33 CFR 165.1319, to safeguard participants and spectators from the safety hazards associated with the Seattle Seafair Blue Angels Air Show Performance.44471 Federal Register/ Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations

1If such areas continue to meet the milestones provided in our regulations (40 CFR 81.300), EPA plans to extend the effective date of designation for these areas until EPA can determine in early 2008 whether such areas attained the 8-hour ozone NAAQS by December 31, 2007. For more details on this process, see 69 FR 84 23864

–23872. designations for all areas of the country. For most areas, the 8-hour ozone designations became effective on June 15, 2004. The Phase 1 Rule provided that the 1-hour ozone NAAQS would no longer apply (i.e., would be revoked) for an area 1 year following the effective date of the area’s designation for the 8- hour ozone NAAQS. This rule codifies the revocation of the 1-hour standard for those areas with effective 8-hour ozone designations. Because the Phase 1 Rule, as modified in a recent reconsideration rule, also provided that certain 1-hour nonattainment and maintenance obligations that applied as of the effective date of designation for the 8- hour NAAQS remain in place for an area, we are retaining the tables in 40 CFR part 81 that identify each area’s 1- hour designation and classification status as of the effective date of the 8- hour designation for the area. The regulatory changes do not modify the tables for Early Action Compact areas for which the 1-hour NAAQS continues to apply. In addition, today’s rule makes a technical correction to the last sentence in 40 CFR 51.905(c)(1) to reference 40 CFR part 81, subpart C as identifying the boundaries of areas and the area designations and classifications for the 1-hour ozone NAAQS that were in place as of the effective date of designation of the area for the 8-hour NAAQS. This rule eliminates the reservation of subpart E of part 81 for the above identification purpose. **DATES :**  This final rule is effective September 2, 2005. **ADDRESSES :**  The EPA has established a docket for this action under Docket ID No. OAR

–2003

–0079. All documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in EDOCKET or in hard copy at the EPA Docket Center (Air Docket), EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566

–1744, and the telephone number for the Office of Air and Radiation Docket and Information Center is (202) 566

– 1742. **FOR FURTHER INFORMATION CONTACT :**  Annie Nikbakht, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539

–02, Research Triangle Park, NC 27711, phone number (919) 541

– 5246, fax number (919) 541

–0824 or by e-mail at nikbakht.annie@epa.gov. **SUPPLEMENTARY INFORMATION :**  Outline I. Background II. What Is the Purpose of This Rule? III. What Happens to Subparts C and E of Part 81? IV. Statutory and Executive Order Reviews I. Background

On April 30, 2004, EPA took final action on key elements of the program to implement the 8-hour ozone (NAAQS or standard) (Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard

—Phase 1) (69 FR 23951) (Phase 1 Rule). In the Phase 1 Rule, EPA established regulatory provisions governing when the 1-hour NAAQS would no longer apply to areas (i.e., would be revoked) (40 CFR 50.9(b)) and promulgated ‘‘anti-backsliding’’ provisions that provided which 1-hour ozone control obligations would continue to apply in areas that were designated nonattainment or attainment subject to a maintenance plan for the 1- hour standard as of the effective date of the area’s 8-hour ozone designation (40 CFR 51.905). The Phase 1 Rule provided that the 1-hour control obligations that continue to apply be the control obligations required as of the date of signature on the Phase 1 Rule (i.e., April 15, 2004). In response to a Petition for Reconsideration (May 26, 2005, 70 FR 30592), EPA reconsidered this issue and changed that date to the effective date of an area’s 8-hour ozone designation (i.e., for most areas, June 15, 2004).

On April 30, 2004, EPA also published air quality designations and classifications for every area in the United States, including Indian country, for the 8-hour ozone NAAQS (Air Quality Designations and Classifications for the 8-Hour Ozone National Ambient Air Quality Standards; Early Action Compact Areas With Deferred Effective Dates) (69 FR 23858). For most areas of the country, the 8-hour ozone NAAQS designations and classifications became effective on June 15, 2004. For areas participating in the early action compact (EAC) process, EPA deferred the effective date of the designations and classifications until September 30, 2005.1 In addition, on June 15, 2004, we deferred the effective date of the 8-hour designation for Clark County, Nevada in order to consider additional information submitted by the State (69 FR 34076). We took final action designating and classifying that area on September 10, 2004, with an effective date of September 13, 2004 (69 FR 55956). II. What Is the Purpose of This Rule?

The purpose of this rule is to revise the 1-hour ozone NAAQS tables in 40 CFR part 81 to reflect the application of our revocation rule at 40 CFR 50.9(b). We are revising the tables to indicate for which areas the 1-hour standard has been revoked, but we are retaining the 1-hour ozone NAAQS designation and classification status as of the time of the effective date of designation for the 8-hour NAAQS for purposes of our antibacksliding regulations at 40 CFR 51.905, which apply after revocation of the 1-hour ozone NAAQS.

In addition, EPA is making two technical corrections to the last sentence in 40 CFR 51.905(c)(1). That sentence currently provides that ‘‘40 CFR Part 81, Subpart E identifies the boundaries of areas and the area designations and classifications for the 1-hour NAAQS at the time the 1-hour NAAQS no longer applied to each area.’’First, EPA is changing the reference to subpart E of part 81 to instead reference subpart C of part 81. The EPA initially planned to move the 1-hour NAAQS tables to subpart E upon revocation of the 1-hour standard for an area, but has now concluded that it makes more sense to leave the tables in subpart C and to modify the existing tables to identify the areas for which the 1-hour standard has been revoked. Second, we are correcting an error in the last clause of that sentence. That sentence indicates that the tables will reflect an area’s 1-hour designation and classification ‘‘at the time the 1-hour NAAQS no longer applied’’in the area. This language is a remnant from the proposed regulatory text which was released for public comment on August 2, 2003 (68 FR 46536). As explained in the preamble to the Phase 1 Rule, in that final rule, we instead adopted the approach set forth in the June 3, 2003 proposal, which was to retain certain 1-hour obligations that applied as of the date of designation for the 8-hour NAAQS. We made the appropriate changes to other aspects of the regulatory text (see e.g., 51.905(a)(1) and (2)) and indicated in the preamble that this section would refer to the time


Subpart C of part 81 is being amended to add footnotes to the existing 1-hour ozone NAAQS tables for every State in the country. The footnotes indicate whether, and if so when, the 1-hour ozone NAAQS has been revoked for areas within the State. We had previously reserved subpart E of part 81 for the purpose of reflecting where (and when) the 1-hour ozone NAAQS has been revoked. However, we have concluded that it makes more sense to retain and modify the tables in subpart C to include the necessary information. Therefore, we are eliminating the reservation of subpart E in our regulatory text.

This action is not subject to the notice-and-comment requirements of the Administrative Procedure Act. Today’s action codifies regulatory changes that implement the Phase 1 Implementation Rule that was issued after notice-and-comment rulemaking. Notice and comment is unnecessary because the action codifying the areas where the 1-hour standard no longer applies is a straightforward application of the rule based on the regulatory status of areas for the 1-hour ozone standard as of June 15, 2004. Additionally, we are making two technical revisions to § 51.905(c)(1) of our regulations. The decision to retain the tables in subpart C, rather than to move them to subpart E has no practical effect on any party or area. This decision is for administrative ease of EPA and there are no regulatory implications for any other party. We are also revising the regulatory language to correct an oversight in our conversion of the draft regulatory text to the final regulation. It was clear from our preamble statements and from our definition of‘‘applicable requirements’’ that this regulatory text should reflect the date an area was designated for the 8-hour standard rather than the date of revocation of the 1-hour standard. Thus, notice and comment is unnecessary for these revisions as well. Finally, we note that the regulatory implications of revocation of the 1-hour standard and of the anti-backsliding provisions were established in the Phase 1 Rule. The regulatory changes being made today are for the purpose of ensuring that other portions of the Code of Federal Regulations accurately reflect the status of areas as modified through the Phase 1 Rule. Thus, it is in the public interest to make this information availablewithout a protracted notice-andcomment process. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is ‘‘significant’’and, therefore, subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines ‘‘significant regulatory action’’as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been determined that this rule is not a ‘‘significant regulatory action’’because none of the above factors applies. As such, this final rule was not formally submitted to OMB for review. B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This final action to identify 1-hour ozone areas where the 1-hour standard is no longer applicable as of June 15, 2005 and the boundaries of the 1-hour ozone areas and their respective designations and classifications as of June 15, 2004 does not require the collection of any information.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers of EPA’s regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act

Today’s final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute.

Today’s action codifies regulatory changes that implement the Phase 1 Implementation Rule that was issued after notice-and-comment rulemaking. Notice and comment is unnecessary because the action codifying the areas where the 1-hour standard no longer applies is a straightforward application of the rule based on the regulatory status of areas for the 1-hour ozone standard as of June 15, 2004. D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104

–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ‘‘Federal mandates’’that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year.


Today’s final action does not include a Federal mandate within the meaning of UMRA that may result in expenditures of $100 million or more in any 1 year by either State, local, or Tribal governments in the aggregate or to the private sector, and therefore, is not subject to the requirements of sections 202 and 205 of the UMRA. It does not create new requirements. The EPA’s Phase 1 Ozone Implementation Rule established ‘‘anti-backsliding’’ requirements that apply based on the area’s 1-hour ozone designation and classification as of designation for the 8- hour NAAQS and provided for revocation of the 1-hour NAAQS 1 year after an area’s 8-hour designation. This rule modifies the tables in part 81 to reflect in which areas the 1-hour standard has been revoked and to ensure the tables reflect the area’s 1- hour designation and classification status as of the effective date of the area’s 8-hour designation. E. Executive Order 13132: Federalism

Executive Order 13132, entitled

‘‘Federalism’’(64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure

‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The Clean Air Act (CAA) establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This rule will not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled

‘‘Consultation and Coordination with Indian Tribal Governments’’(65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’This final rule does not have ‘‘Tribal implications’’as specified in Executive Order 13175. This rule identifies those areas of the country where the 1-hour ozone standard is no longer applicable as of June 15, 2005, pursuant to 40 CFR 50.9(b) and ensures the tables in part 81 reflect the 1-hour ozone designation and classification status of areas as of the effective date of each area’s 8-hour designation. The CAA and the Tribal Authority Rule (TAR) give Tribes the opportunity to develop and implement CAA programs such as programs to attain and maintain the 8-hour ozone NAAQS, but leave to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, they will adopt. This rule does not affect those provisions of the CAA or the TAR.

This final rule does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes. This rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Because this rule does not have Tribal implications, Executive Order 13175 does not apply. Although Executive Order 13175 does not apply to this rule, EPA did communicate to Tribal representatives regarding today’s action. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

Executive Order 13045: ‘‘Protection of Children From Environmental Health and Safety Risks’’(62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be ‘‘economically significant’’as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effects on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The final rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health risks or safety risks addressed by this rule present a disproportionate risk to children. This rule does not alter any applicable requirements; it merely ensures that the tables in 40 CFR part 81 reflect for which areas the 1-hour standard has been revoked and for these areas the 1- hour designation and classification status of the area as of the time of designation for the 8-hour NAAQS. We evaluated the environmental health or safety effects of the 8-hour ozone NAAQS on children. The results of this risk assessment are contained in the National Ambient Air Quality Standards for Ozone, Final Rule, July 18, 1997 (62 FR 38855

–38896; specifically, 62 FR 38854, 62 FR 38860 and 62 FR 38865). H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, ‘‘Actions That Significantly Affect Energy Supply, Distribution, or Use,’’(66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.


Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104

– 113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying, and addressing, as appropriate, disproportionate high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations.

This rule does not raise any environmental justice issues. This rule does not alter any applicable requirements; it merely ensures that the tables in 40 CFR part 81 reflect the status of areas pursuant to EPA’s Phase 1 Rule implementing the 8-hour ozone NAAQS. The health and environmental risks associated with ozone were considered in the establishment of the 8-hour NAAQS. The level is designed to be protective with an adequate margin of safety. K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a

‘‘major rule’’as defined by 5 U.S.C. 804(2). L. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit (i) when the agency action consists of‘‘nationally applicable regulations promulgated, or final actions taken, by the Administrator’’or (ii) when such action is locally or regionally applicable, if

‘‘such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.’’

The actions taken in this rule are

‘‘nationally applicable’’and of

‘‘nationwide scope and effect’’within the meaning of section 307(b)(1). This rule modifies the tables in subpart C for each State, as defined in section 301(d) of the CAA. These modifications are being made consistent with 40 CFR 51.905(c), a regulation that applies in the same manner to all areas across the United States. Additionally, EPA is making a technical correction to the last sentence of section 51.905(c) of EPA’s Phase 1 Rule.

In the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator’s determination that an action is of‘‘nationwide scope or effect’’would be appropriate for any action that has ‘‘scope or effect beyond a single judicial circuit.’’H.R. Rep. No. 95

–294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402

–03. Here, the scope and effect of this rulemaking extend to numerous judicial circuits since the revisions to part C apply to all areas of the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the rule to be of‘‘nationwide scope or effect’’and for venue to be in the D.C. Circuit.

Thus, any petitions for review of this action must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register

. List of Subjects 40 CFR Part 51

Air pollution control, Intergovernmental relations, Ozone, Particulate matter, Transportation, Volatile organic compounds. 40 CFR Part 81

Environmental protection, Air pollution control, National parks, Wilderness areas.

Dated: July 26, 2005. Stephen L. Johnson, Administrator. ■ For reasons stated in the preamble, parts 51 and 81 of Chapter I, title 40 of the Code of Federal Regulations are amended as follows: **PART 51 —** **[AMENDED]** ■ 1. The authority citation for part 51 continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401

– 7671q. ■ 2. Section 51.905 is amended by revising the last sentence in paragraph (c)(1) to read as follows: **§ 51.905 How do areas transition from the**  **1-hour NAAQS to the 8-hour NAAQS and what are the anti-backsliding provisions?**  * * * * *

(c) * * * (1) 40 CFR part 81, subpart C identifies the boundaries of areas and the area designations and classifications for the 1-hour NAAQS in place as of the effective date of designation for the 8- hour NAAQS. * * * * * **PART 81 —** **[AMENDED]** ■ 1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq. **Subpart C —** **[Amended]** ■ 2. In§ 81.301 the table titled

‘‘Alabama

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.301 Alabama.**  * * * * * Alabama—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all of Alabama. The Birmingham area is a maintenance area for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 3. In§ 81.302 the table titled‘‘Alaska

— Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows:


—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Alaska. ■ 4. In§ 81.303 the table titled

‘‘Arizona

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.303 Arizona.**  * * * * * Arizona

—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Arizona. ■ 5. In§ 81.304 the table titled

‘‘Arkansas

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.304 Arkansas.**  * * * * * Arkansas

—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Arkansas. ■ 6. In§ 81.305 the table titled

‘‘California

—Ozone (1-Hour Standard)’’ is amended by adding footnote 4 to read as follows: **§ 81.305 California.**  * * * * * California

—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in California. The Monterey Bay, San Diego, and Santa Barbara-Santa Maria-Lompoc areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 7. In§ 81.306 the table titled

‘‘Colorado

—Ozone (1-Hour Standard)’’ is amended by adding footnote 4 to read as follows: **§ 81.306 Colorado.**  * * * * * Colorado

—Ozone (1-Hour Standard) 4 * * * * *

4 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas inColorado except the Denver (Denver-BoulderGreeley-Ft.Collins-Love) area. ■ 8. In§ 81.307 the table titled

‘‘Connecticut

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.307 Connecticut.**  * * * * * Connecticut

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Connecticut. ■ 9. In§ 81.308 the table titled

‘‘Delaware

—Ozone (1-Hour Standard)’’ is amended by adding footnote 3 to read as follows: **§ 81.308 Delaware.**  * * * * * Delaware

—Ozone (1-Hour Standard) 3 * * * * *

3 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Delaware. ■ 10. In§ 81.309 the table titled‘‘District of Columbia

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.309 District of Columbia.**  * * * * * District of Columbia

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in the District of Columbia. ■ 11. In§ 81.310 the table titled

‘‘Florida

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.310 Florida.**  * * * * * Florida

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Florida. The Jacksonville, Miami-Fort Lauderdale-W. Palm Beach, and Tampa-St. Petersburg-Clearwater areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 12. In§ 81.311 the table titled

‘‘Georgia

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.311 Georgia.**  * * * * * Georgia

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Georgia except the Chattanooga (Catoosa Co.) area. ■ 13. In§ 81.312 the table titled

‘‘Hawaii

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.312 Hawaii.**  * * * * * Hawaii

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Hawaii. ■ 14. In§ 81.313 the table titled‘‘Idaho

— Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.313 Idaho.**  * * * * * Idaho

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Idaho. ■ 15. In§ 81.314 the table titled

‘‘Illinois

—Ozone (1-Hour Standard)’’is amended by adding footnote 3 to read as follows: **§ 81.314 Illinois.**  * * * * * Illinois

—Ozone (1-Hour Standard) 3 * * * * *

3 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Illinois. The Jersey Co. and St. Louis areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 16. In§ 81.315 the table titled

‘‘Indiana

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.315 Indiana.**  * * * * * Indiana

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Indiana. The Evansville, Indianapolis, Louisville, and South Bend-Elkhart areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 17. In§ 81.316 the table titled‘‘Iowa

— Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.316 Iowa.**  * * * * * Iowa

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Iowa. ■ 18. In§ 81.317 the table titled

‘‘Kansas

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows:


—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Kansas. The Kansas City area is a maintenance area for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 19. In§ 81.318 the table titled

‘‘Kentucky

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.318 Kentucky.**  * * * * * Kentucky

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Kentucky. The Cincinnati-Hamilton, Edmonson Co, Huntington-Ashland, Lexington-Fayette, Louisville, Owensboro, and Paducah areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 20. In§ 81.319 the table titled

‘‘Louisiana

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.319 Louisiana.**  * * * * * Louisiana

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Louisiana. The Lafayette, Lake Charles, New Orleans, Pointe Coupee Parish, Beauregard Par, Grant Par, LaFourche Par, St James Par, and St Mary Par areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 21. In§ 81.320 the table titled

‘‘Maine

—Ozone (1-Hour Standard)’’is amended by adding footnote 4 to read as follows: **§ 81.320 Maine.**  * * * * * Maine

—Ozone (1-Hour Standard) 4 * * * * *

4 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Maine. Hancock and Waldo Counties are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 22. In§ 81.321 the table titled

‘‘Maryland

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.321 Maryland.**  * * * * * Maryland

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Maryland except the Washington Co. area. ■ 23. In§ 81.322 the table titled

‘‘Massachusetts

—Ozone (1-Hour Standard)’’is amended by adding footnote 3 to read as follows: **§ 81.322 Massachusetts.**  * * * * * Massachusetts

—Ozone (1-Hour Standard) 3 * * * * *

3 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Massachusetts. ■ 24. In§ 81.323 the table titled

‘‘Michigan

—Ozone (1-Hour Standard)’’ is amended by adding footnote 4 to read as follows: **§ 81.323 Michigan.**  * * * * * Michigan

—Ozone (1-Hour Standard) 4 * * * * *

4 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Michigan. The Detroit-Ann Arbor, Flint, Grand Rapids, Muskegon, Allegan Co, and Saginaw-Bay City-Midland areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 25. In§ 81.324 the table titled

‘‘Minnesota

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.324 Minnesota.**  * * * * * Minnesota

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Minnesota. ■ 26. In§ 81.325 the table titled

‘‘Mississippi

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.325 Mississippi.**  * * * * * Mississippi

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Mississippi. ■ 27. In§ 81.326 the table titled

‘‘Missouri

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.326 Missouri.**  * * * * * Missouri

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Missouri. The Kansas City and St. Louis areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 28. In§ 81.327 the table titled

‘‘Montana

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.327 Montana.**  * * * * * Montana

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Montana. ■ 29. In§ 81.328 the table titled

‘‘Nebraska

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.328 Nebraska.**  * * * * * Nebraska

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Nebraska. ■ 30. In§ 81.329 the table titled

‘‘Nevada

—Ozone (1-Hour Standard)’’is amended by adding footnote 3 to read as follows: **§ 81.329 Nevada.**  * * * * * Nevada

—Ozone (1

–Hour Standard) 3 * * * * *

3The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Nevada except the portion of Clark County designated nonattainment for the 8-hour ozone standard effective September 13, 2004 for which the 1-hour ozone standard is revoked effective September 13, 2005. ■ 31. In§ 81.330 the table titled‘‘New Hampshire

—Ozone (1-Hour Standard)’’ is amended by adding footnote 3 to read as follows: **§ 81.330 New Hampshire.**  * * * * * New Hampshire

—Ozone (1-Hour Standard) 3 * * * * *

3The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in New Hampshire. ■ 32. In§ 81.331 the table titled‘‘New Jersey

—Ozone (1-Hour Standard)’’is amended by adding footnote 3 to read as follows:


—Ozone (1-Hour Standard) 3 * * * * *

3The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in New Jersey. ■ 33. In§ 81.332 the table titled‘‘New Mexico

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.332 New Mexico.**  * * * * * New Mexico

—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in New Mexico. ■ 34. In§ 81.333 the table titled‘‘New York

—Ozone (1-Hour Standard)’’is amended by adding footnote 3 to read as follows: **§ 81.333 New York.**  * * * * * New York

—Ozone (1-Hour Standard) 3 * * * * *

3The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in New York. ■ 35. In§ 81.334 the table titled‘‘North Carolina

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.334 North Carolina.**  * * * * * North Carolina

—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in North Carolina except the Cumberland Co.(Fayetteville), Triad (Greensboro-WinstonSalem-High Point), and Unifour (HickoryMorganton-Lenoir) areas. The CharlotteGastonia and Raleigh-Durham areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 36. In§ 81.335 the table titled‘‘North Dakota

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.335 North Dakota.**  * * * * * North Dakota

—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in North Dakota. ■ 37. In§ 81.336 the table titled‘‘Ohio

— Ozone (1-Hour Standard)’’is amended by adding footnote 3 to read as follows: **§ 81.336 Ohio.**  * * * * * Ohio

—Ozone (1-Hour Standard) 3 * * * * *

3The 1-hour standard is revoked effective June 15, 2005 for all areas in Ohio. The Canton, Cleveland-Akron-Lorain, Clinton Co, Columbus, Dayton-Springfield, Preble Co,Steubenville, Toledo, Youngstown-WarrenSharon, and Columbiana Co. areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 38. In§ 81.337 the table titled

‘‘Oklahoma

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.337 Oklahoma.**  Oklahoma

—Ozone (1-Hour Standard) 2 * * * * *

2The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Oklahoma. ■ 39. In§ 81.338 the table titled

‘‘Oregon

—Ozone (1-Hour Standard)’’is amended by adding footnote 3 to read as follows: **§ 81.338 Oregon.**  * * * * * Oregon

—Ozone (1-Hour Standard) 3 * * * * *

3The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Oregon. Portland-Vancouver AQMA is a maintenance area for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 40. In§ 81.339 the table titled

‘‘Pennsylvania

—Ozone (1-Hour Standard)’’is amended by adding footnote 4 to read as follows: **§ 81.339 Pennsylvania.**  * * * * * Pennsylvania

—Ozone (1-Hour Standard) 4 * * * * *

4 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Pennsylvania. The Pittsburgh-Beaver Valley and Reading areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 41. In§ 81.340 the table titled‘‘Rhode Island

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.340 Rhode Island.**  * * * * * Rhode Island

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Rhode Island. ■ 42. In§ 81.341 the table titled‘‘South Carolina

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.341 South Carolina.**  * * * * * South Carolina

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in South Carolina except the Central Midlands-I(Columbia) and Appalachian-A (GreenvilleSpartanburg-Anderson) areas. Cherokee Co. is a maintenance area for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 43. In§ 81.342 the table titled‘‘South Dakota

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.342 South Dakota.**  * * * * * South Dakota

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in South Dakota. ■ 44. In§ 81.343 the table titled

‘‘Tennessee

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.343 Tennessee.**  * * * * * Tennessee

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Tennessee except the Chattanooga, Johnson City-Kingsport-Bristol, and Nashville areas. Knoxville and Memphis are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 45. In§ 81.344 the table titled‘‘Texas

— Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.344 Texas.**  * * * * * Texas

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Texas except the San Antonio area. The Victoria area is a maintenance area for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X.


■ 46. In§ 81.345 the table titled‘‘Utah

— Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.345 Utah.**  * * * * * Utah

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Utah. The Salt Lake City area is a maintenance area for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 47. In§ 81.346 the table titled

‘‘Vermont

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.346 Vermont.**  * * * * * Vermont

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Vermont. ■ 48. In§ 81.347 the table titled

‘‘Virginia

—Ozone (1-Hour Standard)’’is amended by adding footnote 3 to read as follows: **§ 81.347 Virginia.**  * * * * * Virginia

—Ozone (1-Hour Standard) 3 * * * * *

3 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Virginia except Northern Shenandoah Valley Region (Winchester City and FrederickCounty) and Roanoke areas. The NorfolkVirginia Beach-Newport News and Richmond Areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 49. In§ 81.348 the table titled

‘‘Washington

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.348 Washington.**  * * * * * Washington

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Washington. The Portland-Vancouver AQMA and Seattle-Tacoma areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 50. In§ 81.349 the table titled‘‘West Virginia

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.349 West Virginia.**  * * * * * West Virginia

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in West Virginia except the Eastern Pan Handle Region (Berkeley and Jefferson Counties).The Charleston, Greenbrier Co., HuntingtonAshland, and Parkersburg areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 51. In§ 81.350 the table titled

‘‘Wisconsin

—Ozone (1-Hour Standard)’’ is amended by adding footnote 4 to read as follows: **§ 81.350 Wisconsin.**  * * * * * Wisconsin

—Ozone (1-Hour Standard) 4 * * * * *

4 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Wisconsin. The Door Co., Kewaunee Co., Manitowoc Co., Sheboygan, and Walworth Co. areas are maintenance areas for the 1- hour NAAQS for purposes of 40 CFR part 51 subpart X. ■ 52. In§ 81.351 the table titled

‘‘Wyoming

—Ozone (1-Hour Standard)’’ is amended by adding footnote 2 to read as follows: **§ 81.351 Wyoming.**  * * * * * Wyoming

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Wyoming. ■ 53. In§ 81.352 the table titled

‘‘American Samoa

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.352 American Samoa.**  * * * * * American Samoa

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in American Samoa. ■ 54. In§ 81.353 the table titled

‘‘Guam

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.353 Guam.**  * * * * * Guam

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Guam. ■ 55. In§ 81.354 the table titled

‘‘Northern Mariana Islands

—Ozone (1- Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.354 Northern Mariana Islands.**  * * * * * Northern Mariana Islands

—Ozone (1- Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Northern Mariana Islands. ■ 56. In§ 81.355 the table titled‘‘Puerto Rico

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.355 Puerto Rico.**  * * * * * Puerto Rico

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in Puerto Rico. ■ 57. In§ 81.356 the table titled‘‘Virgin Islands

—Ozone (1-Hour Standard)’’is amended by adding footnote 2 to read as follows: **§ 81.356 Virgin Islands.**  * * * * * Virgin Islands

—Ozone (1-Hour Standard) 2 * * * * *

2 The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in the Virgin Islands. ■ 58. Subpart E is removed. [FR Doc. 05

–15218 Filed 8

–2

–05; 8:45 am] **BILLING CODE 6560 –** **50 –** **P ENVIRONMENTAL PROTECTION**  **AGENCY 40 CFR Part 52**  **[CMNI 124 –** **NBK; FRL –** **7938 –** **6] Revisions to the Commonwealth of the**  **Northern Mariana Islands State Implementation Plan, Update to**  **Materials Incorporated by Reference AGENCY** **:** Environmental Protection Agency (EPA). **ACTION :**  Final rule; notice of administrative change. **SUMMARY :**  EPA is updating the materials submitted by the Commonwealth of the Northern Mariana Islands that are incorporated by reference (IBR) into the Commonwealth of the Northern Mariana Islands State Implementation Plan (SIP). The regulations affected by this update have been previously submitted by the


### Tuesday, October 17, 2006



# Part II 

# Environmental Protection Agency 40 CFR Part 50 National Ambient Air Quality Standards for Particulate Matter; Final RuleVerDate Aug<31>2005 06:19 Oct 17, 2006 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\17OCR2.SGM 17OCR2pwalker on PROD1PC61 with RULES2 61144 Federal Register/ Vol. 71, No. 200 / Tuesday, October 17, 2006 / Rules and Regulations **ENVIRONMENTAL PROTECTION AGENCY**  **40 CFR Part 50 [EPA–HQ–OAR–2001–0017; FRL–8225–3]**  **RIN 2060–AI44 National Ambient Air Quality**  **Standards for Particulate Matter AGENCY** **:** Environmental Protection Agency (EPA). **ACTION :**  Final rule. **SUMMARY :**  Based on its review of the air quality criteria and national ambient air quality standards (NAAQS) for particulate matter (PM), EPA is making revisions to the primary and secondary NAAQS for PM to provide increased protection of public health and welfare, respectively. With regard to primary standards for fine particles (generally referring to particles less than or equal to 2.5 micrometers (μm) in diameter, PM2
.5), EPA is revising the level of the 24-hour PM2
.5 standard to 35 micrograms per cubic meter (μg/m3) and retaining the level of the annual PM2
.5 standard at 15μg/m3. With regard to primary standards for particles generally less than or equal to 10μm in diameter (PM10), EPA is retaining the 24-hour PM10 and revoking the annual PM10 standard. With regard to secondary PM standards, EPA is making them identical in all respects to the primary PM standards, as revised. **DATES :**  This final rule is effective on December 18, 2006. **ADDRESSES :**  The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2001–0017. All documents in the docket are listed on the www.regulations.govWeb site. Although listed in the index, some information is not publicly available, e.g. confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.govor in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 202–566–1741. The telephone number for the Public Reading Room is 202–566–1744. The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA’s Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at www.epa.gov/epahome/dockets.htm for current information on docket status, locations and telephone numbers. **FOR FURTHER INFORMATION CONTACT :**  Ms. Beth M. Hassett-Sipple, Mail Code C504–06, Health and Environmental Impacts Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina27711, telephone: (919) 541–4605, email: hassett-sipple.beth@epa.gov. **SUPPLEMENTARY INFORMATION :**  Table of Contents

The following topics are discussed in today’s preamble: I.Background

A.Summary of Revisions to the PM

NAAQS B.Legislative Requirements C.Overview of Air Quality Criteria and

Standards Review for PM D.Related Control Programs to Implement

PM Standards E.Summary of Proposed Revisions to the

PM NAAQS F.Organization and Approach to Final PM

NAAQS Decisions II.Rationale for Final Decisions on Primary PM2
.5 Standards A.Introduction 1.Overview 2.Overview of Health Effects Evidence 3.Overview of Quantitative Risk

Assessment B.Need for Revision of the Current

Primary PM2
.5 Standards 1.Introduction 2.Comments on the Need for Revision 3.Conclusions Regarding the Need for

Revision C.Indicator for Fine Particles D.Averaging Time of Primary PM2
.5

Standards E.Form of Primary PM2
.5 Standards 1.24-Hour PM2
.5 Standard 2.Annual PM2
.5 Standard F.Level of Primary PM2
.5 Standards 1.24-Hour PM2
.5 Standard 2.Annual PM2
.5 Standard G.Final Decisions on Primary PM2
.5

Standards III.Rationale for Final Decisions on Primary PM10 Standards A.Introduction 1.Overview 2.Overview of Health Effects Evidence 3.Overview of Quantitative Risk

Assessment B.Need for Revision of the Current Primary PM10 Standards 1.Overview of the Proposal 2.Comments on the Need for Revision C.Indicator for Thoracic Coarse Particles 1.Introduction 2.Comments on Indicator for Thoracic

Coarse Particles 3.Decision Not to Revise PM10 Indicator a.Unqualified PM10

–2
.5 Indicator b.PM10 Indicator c.Unqualified PM10 Indicator, with

Adjustment to the PM2
.5 Component 4.Conclusions Regarding Indicator for

Thoracic Coarse Particles D.Conclusions Regarding Averaging Time,

Form, and Level of the Current PM10 Standards 1.Averaging Time 2.Level and Form of the 24-Hour PM10

Standard E.Final Decisions on Primary PM10

Standards IV.Rationale for Final Decisions on Secondary PM Standards A.Visibility Impairment 1.Visibility Impairment Related to

Ambient PM 2.Need for Revision of the Current

Secondary PM2
.5 Standards to Protect Visibility 3.Indicator of PM for Secondary Standard

to Address Visibility Impairment 4.Averaging Time of a Secondary PM2
.5

Standard for Visibility Protection 5.Final Decisions on Secondary PM2
.5

Standards for Visibility Protection B.Other PM-Related Welfare Effects 1.Evidence of Non-Visibility Welfare

Effects Related to PM 2.Need for Revision of the Current

Secondary PM Standards to Address Other PM-Related Welfare Effects C.Final Decisions on Secondary PM

Standards V.Interpretation of the NAAQS for PM

A.Amendments to Appendix N—

Interpretation of the National Ambient Air Quality Standards for PM2
.5 1.General 2.PM2
.5 Monitoring and Data Reporting

Considerations 3.PM2
.5 Computations and Data Handling

Conventions 4.Conforming Revisions B.Proposed Appendix P—Interpretation of

the National Ambient Air Quality Standards for PM10

–2
.5 C.Amendments to Appendix K—

Interpretation of the National Ambient Air Quality Standards for PM10 VI.Reference Methods for the Determination of Particulate Matter as PM10

–2
.5 and PM2
.5 A.Appendix O to Part 50—Reference

Method for the Determination of Coarse Particulate Matter as PM10

–2
.5 in the Atmosphere B.Amendments to Appendix L—Reference

Method for the Determination of Fine Particulate Matter (as PM2
.5) in the Atmosphere VII.Issues Related to Implementation of PM10 Standards A.Summary of Comments Received on

TransitionVerDate Aug<31>2005 06:19 Oct 17, 2006 Jkt 211001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\17OCR2.SGM 17OCR2pwalker on PROD1PC61 with RULES2 Federal Register/ Vol. 71, No. 200 / Tuesday, October 17, 2006 / Rules and Regulations 61145

B.Impact of Decision on PM10

Designations C.Impact of Decision on State

Implementation Plans (SIPs) and Control Obligations D.Consideration of Fugitive Emissions for

New Source Review (NSR) Purposes E.Handling of PM10 Exceedances Due to

Exceptional Events VIII.Statutory and Executive Order Reviews

A.Executive Order 12866: Regulatory

Planning and Review B.Paperwork Reduction Act C.Regulatory Flexibility Act D.Unfunded Mandates Reform Act E.Executive Order 13132: Federalism F.Executive Order 13175: Consultation

and Coordination with Indian Tribal Governments G.Executive Order 13045: Protection of

Children from Environmental Health & Safety Risks H.Executive Order 13211: Actions that

Significantly Affect Energy Supply, Distribution or Use I.National Technology Transfer

Advancement Act J.Executive Order 12898: Federal Actions

to Address Environmental Justice in Minority Populations and Low-Income Populations K.Congressional Review Act References I.Background A.Summary of Revisions to the PM NAAQS

Based on its review of the air quality criteria and national ambient air quality standards (NAAQS) for particulate matter (PM), EPA is making revisions to the primary and secondary NAAQS for PM to provide increased protection of public health and welfare, respectively.

With regard to primary standards for fine particles (generally referring to particles less than or equal to 2.5 micrometers (μm) in diameter, PM2
.5), EPA is revising the level of the 24-hour PM2
.5 standard to 35 micrograms per cubic meter μg/m3), providing increased protection against health effects associated with short-term exposure (including premature mortality and increased hospital admissions and emergency room visits), and retaining the level of the annual PM2
.5 standard at 15 μg/m3, continuing protection against health effects associated with long-term exposure (including premature mortality and development of chronic respiratory disease). The EPA is revising the form of the annual PM2
.5 standard with regard to the criteria for spatial averaging, such that averaging across monitoring sites is allowed if the annual mean concentration at each monitoring site is within 10 percent of the spatially averaged annual mean, and the daily values for each monitoring site pair yield a correlation coefficient of at least 0.9for each calendar quarter. With regard to primary standards for particles generally less than or equal to 10μm in diameter (PM10), EPA is retaining the 24-hour PM10 standard to protect against the health effects associated with short-term exposure to coarse particles (including hospital admissions for cardiopulmonary diseases, increased respiratory symptoms and possibly premature mortality). Given that the available evidence does not suggest an association between long-term exposure to coarse particles at current ambient levels and health effects, EPA is revoking the annual PM10 standard.

With regard to secondary PM standards, EPA is revising the current 24-hour PM2
.5 secondary standard by making it identical to the revised 24- hour PM2
.5 primary standard, retaining the annual PM2
.5 and 24-hour PM10 secondary standards, and revoking the annual PM10 secondary standard. This suite of secondary PM standards is intended to provide protection against PM-related public welfare effects, including visibility impairment, effects on vegetation and ecosystems, and materials damage and soiling. B.Legislative Requirements

Two sections of the Clean Air Act (CAA) govern the establishment and revision of the NAAQS. Section 108 (42 U.S.C.7408) directs the Administrator to identify and list ‘‘air pollutants’’that

‘‘in his judgment, may reasonably be anticipated to endanger public health and welfare’’and whose ‘‘presence * * * in the ambient air results from numerous or diverse mobile or stationary sources’’and to issue air quality criteria for those that are listed. Air quality criteria are intended to

‘‘accurately reflect the latest scientific knowledge useful in indicating the kind and extent of identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in ambient air * * * .’’

Section 109 (42 U.S.C. 7409) directs the Administrator to propose and promulgate ‘‘primary’’and ‘‘secondary’’ NAAQS for pollutants listed under section 108. Section 109(b)(1) defines a primary standard as one ‘‘the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.’’ 1 A secondary

1The legislative history of section 109 indicates that a primary standard is to be set at ‘‘the maximum permissible ambient air level * * * which will protect the health of any [sensitive] group of the population,’’and that for this purpose

‘‘reference should be made to a representative sample of persons comprising the sensitive group standard, as defined in section 109(b)(2), must ‘‘specify a level of air quality the attainment and maintenance of which, in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of [the] pollutant in the ambient air.’’ 2

The requirement that primary standards include an adequate margin of safety was intended to address uncertainties associated with inconclusive scientific and technical information available at the time of standard setting. It was also intended to provide a reasonable degree of protection against hazards that research has not yet identified.Lead Industries Association v. EPA, 647 F.2d 1130, 1154 (D.C.Cir 1980), cert. denied, 449 U.S. 1042 (1980);American Petroleum Institute v. Costle, 665 F.2d 1176, 1186 (D.C.Cir. 1981), cert. denied, 455 U.S. 1034 (1982). Both kinds of uncertainties are components of the risk associated with pollution at levels below those at which human health effects can be said to occur with reasonable scientific certainty. Thus, in selecting primary standards that include an adequate margin of safety, the Administrator is seeking not only to prevent pollution levels that have been demonstrated to be harmful but also to prevent lower pollutant levels that may pose an unacceptable risk of harm, even if the risk is not precisely identified as to nature or degree. The CAA does not require the Administrator to establish a primary NAAQS at a zero-risk level or at a background concentration level (see Lead Industries Association v.EPA, supra, 647 F.2d at 1156 n. 51), but rather at a level that reduces risk sufficiently so as to protect public health with an adequate margin of safety.

In addressing the requirement for an adequate margin of safety, EPA considers such factors as the nature and severity of the health effects involved, the size of the sensitive population(s) at risk, and the kind and degree of the uncertainties that must be addressed. The selection of any particular approach to providing an adequate margin of safety is a policy choice left specifically to the Administrator’s judgment.Lead rather than to a single person in such a group’’[S. Rep. No. 91

–1196, 91st Cong., 2d Sess. 10 (1970)].

2Welfare effects as defined in section 302(h) [42 U.S.C.7602(h)] include, but are not limited to,

‘‘effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being.’’

### This 91 page Federal Register Final Rule is available in electronicform at several Federal Government web sites including: http://www.regulations.gov/ (search for EPA

‐HQ

‐OAR

‐2001

‐0017

‐3265 ) and http://www.epa.gov/fedrgstr/

orfrom the EPA Region 6 office by contactingthe person listed in the FOR FURTHER INFORMATION CONTACTsection ofthe New Mexico Federal Register(s) forthis action.VerDate Aug<31>2005 06:23 Oct 17, 2006 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\17OCR3.SGM 17OCR3pwalker on PROD1PC61 with RULES3 

### Tuesday, October 17, 2006



# Part III 

# Environmental Protection Agency 40 CFR Parts 53 and 58 Revisions to Ambient Air Monitoring Regulations; Final RuleVerDate Aug<31>2005 06:23 Oct 17, 2006 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\17OCR3.SGM 17OCR3pwalker on PROD1PC61 with RULES3 61236 Federal Register/ Vol. 71, No. 200 / Tuesday, October 17, 2006 / Rules and Regulations **ENVIRONMENTAL PROTECTION AGENCY**  **40 CFR Parts 53 and 58 [EPA–HQ–OAR–2004–0018; FRL–8227–2]**  **RIN 2060–AJ25 Revisions to Ambient Air Monitoring**  **Regulations AGENCY** **:** Environmental Protection Agency (EPA). **ACTION :**  Final rule. **SUMMARY :**  The EPA is issuing final amendments to the ambient air monitoring requirements for criteria pollutants. The purpose of the amendments is to enhance ambient air quality monitoring to better serve current and future air quality management and research needs. The final amendments establish limited ambient air monitoring requirements for thoracic coarse particles in the size range of PM10

¥2.5 to support continued research into these particles’ distribution, sources, and health effects. The ambient air monitoring amendments also require each State to operate one to three monitoring stations that take an integrated, multipollutant approach to ambient air monitoring. In addition, the final amendments modify the general monitoring network design requirements for minimum numbers of ambient air monitors to focus on populated areas with air quality problems and to reduce significantly the requirements for criteria pollutant monitors that have measured ambient air concentrations well below the applicable National Ambient Air Quality Standards. These amendments also revise certain provisions regarding monitoring network descriptions and periodic assessments, quality assurance, and data certifications. A number of the amendments relate specifically to PM2.5, revising the requirements for reference and equivalent method determinations (including specifications and test procedures) for fine particle monitors. **DATES :**  This final rule is effective on December 18, 2006. **ADDRESSES :**  The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2004–0018. All documents in the docket are listed in the http://www.regulations.govindex. Although listed in the index, some information is not publicly available, e.g., confidential business information 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.govor in hard copy at the Revisions to the Ambient Air Monitoring Regulations Docket, EPA/ DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the Air Docket is (202) 566–1742. Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA’s Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at http://www.epa.gov/ epahome/dockets.htm for current information on docket status, locations, and telephone numbers. **FOR FURTHER INFORMATION CONTACT :**  For general questions concerning the final amendments, please contact Mr. Lewis Weinstock, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Ambient Air Monitoring Group (C304–06), Research Triangle Park, North Carolina 27711; telephone number: (919) 541–3661; fax number: (919) 541–1903; email address: weinstock.lewis@epa.gov

. For technical questions, please contact Mr. Tim Hanley, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Ambient Air Monitoring Group (C304–06), Research Triangle Park, North Carolina 27711; telephone number: (919) 541–4417; fax number: (919) 541–1903; email address: hanley.tim@epa.gov

. **SUPPLEMENTARY INFORMATION :**  I.General Information A.Does this action apply to me?

Categories and entities potentially regulated by this action include: Category NAICS code 1 Examples of regulated entitiesIndustry ................................................................. 334513, 541380 Manufacturer, supplier, distributor, or vendor of ambient air monitoring instruments; analytical laboratories or other monitoring organizations thatelect to submit an application for a reference or equivalent method determination under 40 CFR part 53. Federal government .............................................. 924110 Federal agencies (that conduct ambient air monitoring similar to that conducted by States under 40 CFR part 58 and that wish EPA to use theirmonitoring data in the same manner as State data) or that elect to submit an application for a reference or equivalent method determination under 40 CFR part 53. State/territorial/local/tribal government ................. 924110 State, territorial, and local, air quality management programs that are responsible for ambient air monitoring under 40 CFR part 58 or that electto submit an application for a reference or equivalent method determination under 40 CFR part 53 or for an approved regional method approved under 40 CFR part 58 appendix C. The proposal also may affect Tribes that conduct ambient air monitoring similar to that conducted by States and that wish EPA to use their monitoring data in the same manner as State monitoring data. 1North American Industry Classification System. This table is not intended to be aware could potentially be regulated by territorial agency is regulated by this exhaustive, but rather provides a guide this action. Other types of entities not action, you should carefully examine for readers regarding entities likely to be listed in the table could also be the requirements for reference or regulated by this action. This table lists regulated. To determine whether your equivalent method determinations in 40 the types of entities that EPA is now facility or Federal, State, local, or CFR part 53, subpart A (GeneralVerDate Aug<31>2005 06:23 Oct 17, 2006 Jkt 211001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\17OCR3.SGM 17OCR3pwalker on PROD1PC61 with RULES3 Federal Register/ Vol. 71, No. 200 / Tuesday, October 17, 2006 / Rules and Regulations 61237 Provisions) and the applicability criteria in 40 CFR 51.1 of EPA’s requirements for State implementation plans. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding **FOR FURTHER INFORMATION CONTACT**  section. B.Where can I obtain a copy of this action?

In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following the Administrator’s signature, a copy of the final amendments will be placed on the TTN’s policy and guidance page for newly proposed or promulgated rules at http:// www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. C.Public Comments on Proposed Amendments

EPA received approximately 20,000 public comments on the proposed amendments to the ambient air monitoring regulations during the 90- day comment period. These comments were submitted to the rulemaking docket and also during public hearings held in Chicago, Illinois; Philadelphia, Pennsylvania; and San Francisco, California (71 FR 8228, February 16, 2006). Public comments on the proposed amendments were submitted by States, local governments, Tribes, and related associations; energy, mining, ranching, and agricultural interests and related associations; vendors, laboratories, and technical consultants; health, environmental, and public interest organizations; and private citizens. The EPA has carefully considered these comments in developing the final amendments. Summaries of these comments and EPA’s detailed responses are contained in the Response to Comments document included in the docket. D.Judicial Review

Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of the final amendments is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by December 18, 2006. Under section 307(d)(7)(B) of the CAA, only an objection to the final amendments that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by the final amendments may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. E.Peer Review

The EPA sought expert scientific review of the proposed methods, technologies, and approach for ambient air monitoring by the Clean Air Scientific Advisory Committee (CASAC). The CASAC is a Federal advisory committee established to review scientific and technical information and make recommendations to the EPA Administrator on issues related to the air quality criteria and corresponding NAAQS. CASAC formed a National Ambient Air Monitoring Strategy (NAAMS) Subcommittee in 2003 to provide advice for a strategy for the national ambient air monitoring programs. This subcommittee, which operated over a 1-year period, and a new subcommittee on Ambient Air Monitoring and Methods (AAMM), formed in 2004, provided the input for CASAC on its consultations, advisories, and peer-reviewed recommendations to the EPA Administrator.

In July 2003, the CASAC NAAMS Subcommittee held a public meeting to review EPA’s draft National Ambient Air Monitoring Strategy document (dated September 6, 2002), which contained technical information underlying planned changes to the ambient air monitoring networks. The EPA continued to consult with the CASAC AAMM Subcommittee throughout the development of the proposed amendments. Public meetings were held in July 2004, December 2004, and September 2005 to discuss the CASAC review of nearly 20 documents concerning methods and technology for measurement of particulate matter (PM); data quality objectives for PM monitoring networks and related performance-based standards for approval of equivalent continuous PM monitors; configuration of ambient air monitoring stations; 1 and other technical aspects of the proposed amendments. These documents, along with CASAC review comments and other information are available at: http://www.epa.gov/ttn/amtic/ casacinf.html

. F.How is this document organized?

The information presented in this preamble is organized as follows:

1‘‘Station’’and ‘‘site’’are used somewhat interchangeably in this notice of final rulemaking. When there is a difference (which will be apparent from context), ‘‘site’’generally refers to the location of a monitor, while ‘‘station’’refers to a suite of measurements at a particular site. I.General Information A.Does this action apply to me? B.Where can I obtain a copy of this action? C.Public Comments on Proposed

Amendments D.Judicial Review E.Peer Review F.How is this document organized? II.Authority III.Overview

A.Summary of Concurrent Final Action on

Revisions to the National Ambient Air Quality Standards for Particulate Matter B.Summary of Changes to Ambient Air

Monitoring Regulations C.Significant Dates for States, Local

Governments, Tribes, and Other Stakeholders D.Implementation of the Revised

Monitoring Requirements E.Federal Funding for Ambient Air

Monitoring IV.Discussion of Regulatory Revisions and Major Comments on Proposed Amendments to 40 CFR Part 53 A.Overview of Part 53 Regulatory

Requirements B.Requirements for Candidate Reference

Methods for PM10

¥2.5 C.Requirements for Candidate Equivalent

Methods PM2.5 and PM10

¥2.5 D.Other Changes V.Discussion of Regulatory Revisions and Major Comments on Proposed Amendments to 40 CFR Part 58 A.Overview of Part 58 Regulatory

Requirements B.General Monitoring Requirements 1.Definitions and Terminology 2.Annual Monitoring Network Plan and

Periodic Network Assessment 3.Operating Schedules 4.Monitoring Network Completion for

PM10

¥2.5 and NCore Sites 5.System Modifications 6.Annual Air Monitoring Data

Certification 7.Data Submittal 8.Special Purpose Monitors 9.Special Considerations for Data

Comparisons to the National Ambient Air Quality Standards C.Appendix A

—Quality Assurance

Requirements for State and Local Air Monitoring Stations and Prevention of Significant Deterioration Air Monitoring 1.General Quality Assurance

Requirements 2.Specific Requirements for PM10

¥2.5,

PM2.5, PM10, and Total Suspended Particulates 3.Particulate Matter Performance

Evaluation Program and National Performance Audit Programs 4.Revisions to Precision and Bias Statistics 5.Other Program Updates D.Appendix C

—Ambient Air Quality

Monitoring Methodology 1.Applicability of Federal Reference

Methods and Federal Equivalent Methods 2.Approved Regional Methods for PM2.5 E.Appendix D

—Network Design Criteria

for Ambient Air Quality Monitoring 1.Requirements for Operation of

Multipollutant NCore StationsVerDate Aug<31>2005 06:23 Oct 17, 2006 Jkt 211001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\17OCR3.SGM 17OCR3pwalker on PROD1PC61 with RULES3 61238 Federal Register/ Vol. 71, No. 200 / Tuesday, October 17, 2006 / Rules and Regulations

2.Requirements for Operation of PM10

¥2.5

Stations 3.Requirements for Operation of PM2.5

Stations 4.Requirements for Operation of PM10

Stations 5.Requirements for Operation of Carbon

Monoxide, Sulfur Dioxide, Nitrogen Dioxide, and Lead Monitoring Sites 6.Requirements for Operation of Ozone

Stations 7.Requirements for Operation of

Photochemical Assessment Monitoring Stations F.Appendix E

—Probe and Monitoring

Path Siting Criteria for Ambient Air Monitoring 1.Vertical Placement of PM10

¥2.5 Samplers 2.Ozone Monitor Setback Requirement

from Roads G.Sample Retention Requirements H.Deletion of Appendices B and F VI.Statutory and Executive Order Reviews

A.Executive Order 12866: Regulatory

Planning and Review B.Paperwork Reduction Act C.Regulatory Flexibility Act D.Unfunded Mandates Reform Act E.Executive Order 13132: Federalism F.Executive Order 13175: Consultation

and Coordination With Indian Tribal Governments G.Executive Order 13045: Protection of

Children From Environmental Health and Safety Risks H.Executive Order 12898: Federal Actions

to Address Environmental Justice in Minority Populations and Low-Income Populations I.Executive Order 13211: Actions That

Significantly Affect Energy Supply, Distribution, or Use J.National Technology Transfer

Advancement Act K.Congressional Review Act II.Authority

The EPA rules for ambient air monitoring are authorized under sections 110, 301(a), and 319 of the Clean Air Act (CAA). Section 110(a)(2)(B) of the CAA requires that each State implementation plan (SIP) provide for the establishment and operation of devices, methods, systems, and procedures needed to monitor, compile, and analyze data on ambient air quality and for the reporting of air quality data to EPA. Section 103 authorizes, among others, research and investigations relating to the causes, effects, extent, prevention and control of air pollution. Section 301(a) of the CAA authorizes EPA to develop regulations needed to carry out EPA’s mission and establishes rulemaking requirements. Uniform criteria to be followed when measuring air quality and provisions for daily air pollution index reporting are required by CAA section 319. III.Overview A.Summary of Concurrent Final Action on Revisions to the National Ambient Air Quality Standards for Particulate Matter

Elsewhere in this Federal Register, EPA is finalizing revisions to the National Ambient Air Quality Standards (NAAQS) for particulate matter (PM). These revisions were proposed on January 17, 2006 (71 FR 2620). For a detailed explanation of these revisions, see that preamble elsewhere in this Federal Register

.

The EPA is finalizing the PM2.5 NAAQS revisions as proposed. With regard to the primary standards for fine particles (generally referring to particles less than or equal to 2.5 micrometers (μm) in diameter, PM2.5), EPA is revising the level of the 24-hour PM2.5 standard to 35 micrograms per cubic meter (μg/ m3), providing increased protection against health effects associated with short-term exposure (including premature mortality and increased hospital admissions and emergency room visits). The EPA is retaining the level of the annual PM2.5 standard at 15 μg/m3, continuing protection against health effects associated with long-term exposure (including premature mortality and development of chronic respiratory disease). The EPA is also finalizing the proposed revisions in the conditions under which spatial averaging of the annual primary PM2.5 NAAQS is permitted, and placing these conditions in appendix N of 40 CFR part 50 rather than in appendix D of 40 CFR part 58.

With regard to secondary PM standards, EPA is revising the current 24-hour PM2.5 secondary standard by making it identical to the revised 24- hour PM2.5 primary standard, retaining the annual PM2.5 and 24-hour PM10 secondary standards, and revoking the annual PM10 secondary standard. This suite of secondary PM standards is intended to provide protection against PM-related public welfare effects, including visibility impairment, effects on vegetation and ecosystems, and materials damage and soiling.

The EPA is finalizing the proposed Federal reference method (FRM) for PM2.5. This action in essence codifies certain desirable features that have already been in widespread use as elements of approved equivalent methods or national user modifications.

The EPA is not finalizing the proposed NAAQS for PM10

¥2.5, for reasons explained in the accompanying preamble to the revisions to the NAAQS. As a result, EPA is not finalizing a number of related provisions (notably those which would have prescribed which monitors could have been used for comparison with that proposed NAAQS) proposed as amendments to 40 CFR part 58. The EPA is, however, finalizing the proposed FRM for PM10

¥2.5 (see appendix O to 40 CFR part 50). This FRM is based on paired filter-based samplers for PM2.5 and PM10 and it will serve as the standard of reference for measurements of PM10

¥2.5 concentrations in ambient air. This should provide a basis for approving Federal Equivalent Methods (FEMs) and promote the gathering of scientific data to support future reviews of the PM NAAQS. Because it is a filter based system, this method can itself be used to provide speciated data. The reference measurement from the PM10

¥2.5 FRM is also important in the development of alternative PM10

¥2.5 speciation samplers such as dichotomous samplers. The EPA will be issuing guidance to ensure the use of a consistent national approach for speciated coarse particle monitors as soon as possible.

In conjunction with the above NAAQS revisions and FRM provisions, as part of this final monitoring rule, as described below EPA is finalizing certain provisions which support collection of additional high quality data on ambient concentrations of PM10

¥2.5. These data should be useful in improving the understanding of PM10

¥2.5 air quality and in conducting future reviews of the PM NAAQS.

As explained in the preamble to the NAAQS revisions, EPA is revoking the annual NAAQS for particles generally less than or equal to 10 μm in diameter (PM10). However, EPA is retaining the 24-hour PM10 NAAQS as a standard for short-term exposure to thoracic coarse particles, rather than revoking that standard in all but 15 areas as proposed. This change from the NAAQS revision proposal necessitates that the final monitoring rule restore certain PM10 monitoring provisions that were proposed for removal. B.Summary of Changes to Ambient Air Monitoring Regulations

This rule, in most respects, finalizes the proposals put forth in the January 17, 2006, notice of proposed rulemaking (71 FR 2710). This final rule will facilitate monitoring program changes envisioned in the draft National Ambient Air Monitoring Strategy which was fully described in the proposal. These final changes, which apply to the monitoring program for all of the criteria pollutants, will reduce the required scale of monitoring for pollutants for which most areas have reached

### This 94 page Federal Register Final Rule is available in electronicform at several Federal Government web sites including: http://www.regulations.gov/ (search for EPA

‐HQ

‐OAR

‐2004

‐0018

‐0686 ) and http://www.epa.gov/fedrgstr/

orfrom the EPA Region 6 office by contactingthe person listed in the FOR FURTHER INFORMATION CONTACTsection ofthe New Mexico Federal Register(s) forthis action.Federal Register/Vol. 73. No. 60/Thursday. March 27. 2[}08/Rliles and Regulations 16205
PART 52-{AMENDED]

§ 52.2070 Identification of plan.

(c) EPA approved regulations. • 1. The Authority citation continues to read as follo\

Authority: -\2 U.S.c. 7401 (! 

# 'N:1"\EXHIBIT

## r~v 

# '±: I Subpart Oo-Rhode Islan-.

_

• 2.ln § ,2.2070 (e). the table eotitled

..EPA Approved Khode Island Regulations," is amended by adding a new entry, "Air Pollution Control Regulation Number 45" in numerical order to read as follows: purposes ofjudicial mview nor does it extend the time within which a pfltition for judicial review may be filed, ilnd shilll 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).) List ofSuhjects in 40 CFR Part 52

Environmental protection, Air pollution control. Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting fmd recordkeeping**n~quirements,** Sulfur oxides.

Daled: Mart:h 14, :W08. Robert W, Varney I RI!ginrHl!Administrator. EPA Now En.t:!nnd.

• Part 52 ofchApter I, Litle40ofthe Code ofFederal Kegulations is amended as follows: report containing this rule Hnd other required informution to !he U.S. Senate, the u.s. House ofKepresentrdives, find the Comptroller General ofthfl United States prior to publication ofthe rule in the Federal Register. A major rule cannot take erfed until 60 days after it is published in the Federal Register. This ilction is not 1'1 "major rule" as defined by 5 U.S.c. 804(2).

Under section 307(h)(l) ofthe Clean Air Act, petitions for judicial review of this action must be filed in the United Stlltes Court ofAppeals for the appropriate circuit by May 27, 2008. Interested parties should comment in response to the proposed rule flither than petition for judicial review, unless Ihe objection f1rises after the comment period allowed for in the proposal. Filing a pelition for reconsideration by the Administrator ofthis final rule does not affect Ihe finality ofthis rule for theEPA ApPROVED RHODE ISLAND REGULATIONS State citation Title/subject State effective date EPA approval date Explanations

Air Pollution Control**Regula~**

lion Number 45. Rhode Island Diesel Engine Anti-Idling Program. July 19, 2007

. March 27, 2008; [Insert Fed· eral Register page num· ber where the document begins]. Limits idling for diesel on· highway and non-road en- gines.

[FR Doc. E8-1)183 Filed 3-26-08; 8:45 amI BILLING CODE 656O--5O-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR PART 52 [EPA-Ha-<lAR-2007-1173.**FRl~54~1** RIN 206o-AP03 Completeness Findings lor section 110(a) State Implementation Plans lor the 8-hourOzone NAAQS AGENCY: EnvironIIlontal Protection Ageney (EPA). ACTION: Final rule. SUMMARY: The EPA is making a finding concerning whether or not each State has submitted a complete State Implementation Plan {SIP) that provides the basic program elements specified in Clean Air Act (Act or CAA) section 110(a)(2) necessary to implement the 1997**8~hour** ozone National Ambient Air Quality Standards (NAAQSj. By this action, EPA is identifying those States that: Have failed to make a complete submission for all requirements; have failed to make a complete submission for specific requirements; or have made a complete submission. The findings of failure to submit for all or a portion of a State's SIP establish a 24-montb deadline for EPA to promulgate Federal Implementation Plans (FIPs) to address the outstanding SIP elements unless, prior to that time, the affected States submit, and EPA approves, the required SIPs. The findings that all, or portions ofa State's SIP submission, are complete establish a 12-month deadline for EPA to take action upon the complete SIP elements in accordance with section 110(k). DATES: The effective date ofthis rule is April 28. 2008. FOR FURTHER INFORMATION CONTACT: General questions concerning this notice sbould be addressed to Mr. Larry D. Wallace, PbD, Office ofAir Quality Planning and Standards, Air Quality Policy Division, Mail Code C504-2, 109 TW Alexander Drive, Research Triangle Park. NC 27709: telephooe (919) 541- 0906. SUPPLEMENTARY INFORMATION: Section 553 ofthe Administrative Procedures Act. 5U.S.C. 553(bJ(BJ. provides that. when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the rtgency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because no significant EPA judgment is involved in making 8 finding offailure to submit SIPs, or elements ofSIPs, required by the CAA, where states have made no sllbmissions, or incomplete submissions, to meet the requiremenl by the statutory date. Thus. notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(bJ(B).

For questions related to a specific State please contact the appropriate regional office:VerDate Aug<31>2005 16:02 Mar 26, 2008 Jkt 214001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\27MRR1.SGM 27MRR1pwalker on PROD1PC71 with RULES 16206 Federal Register/ Vol. 73, No. 60 / Thursday, March 27, 2008 / Rules and Regulations Regional offices Dave Conroy, Acting Branch Chief, Air Programs Branch, EPA New

England, 1 Congress Street, Suite 1100, Boston, MA 02203–2211. Raymond Werner, Chief, Air Programs Branch, EPA Region II, 290

Broadway, 21st Floor, New York, NY 10007–1866. Christina Fernandez, Acting Branch Chief, Air Quality Planning Branch,

EPA Region III, 1650 Arch Street, Philadelphia, PA 19103–2187. Dick A. Schutt, Chief, Regulatory Development Section, EPA Region

IV, Sam Nunn, Atlanta Federal Center, 61 Forsyth Street, SW., 12th Floor, Atlanta, GA 30303. Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West

Jackson Street, Chicago, IL 60604. Tom Diggs, Acting Associate Director Air Programs, EPA Region VI,

1445 Ross Avenue, Dallas, TX 75202–2733. Joshua A. Tapp, Chief, Air Programs Branch, EPA Region VII, 901

North 5th Street, Kansas City, Kansas 66101–2907. Cynthia Cody, Unit Leader, Air Quality Planning Unit, EPA Region VIII

Air Program, 1595 Wynkoop St. (8P–AR), Denver, CO 80202–1129. Lisa Hanf, Air Planning Office, EPA Region IX, 75 Hawthorne Street,

San Francisco, CA 94105. Mahbubul Islam, Manager, State and Tribal Air Programs, EPA Region

X, Office of Air, Waste, and Toxics, Mail Code OAQ–107, 1200 Sixth Avenue, Seattle, WA 98101. States Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island,

and Vermont. New Jersey, New York, Puerto Rico, and the Virgin Islands. Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and

West Virginia. Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina,

South Carolina, and Tennessee. Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. Iowa, Kansas, Missouri, and Nebraska. Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. Arizona, California, Guam, Hawaii, and Nevada. Alaska, Idaho, Oregon, and Washington.

Table of Contents I.Background II.This Action

A.Finding of Failure To Submit for States

that Failed To Make a Submittal B.Finding of Failure To Submit Specific

Elements of Section 110(a)(2) C.List of States That Submitted Complete

Submissions To Satisfy the Section 110(a)(2) Requirements III.Statutory and Executive Order Reviews

A.Executive Order 12866: Regulatory

Planning and Review B.Paperwork Reduction Act C.Regulatory Flexibility Act (RFA) D.Unfunded Mandates Reform Act of 1995

(UMRA) E.Executive Order 13132: Federalism F.Executive Order 13175: Consultation

and Coordination With Indian Tribal Governments G.Executive Order 13045: Protection of

Children From Environmental Health and Safety Risks H.Executive Order 13211: Actions That

Significantly Affect Energy Supply, Distribution, or Use I.National Technology Transfer

Advancement Act J.Executive Order 12898: Federal Actions

To Address Environmental Justice in Minority and Low Income Populations K.Congressional Review Act L.Judicial Review I.Background

On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-hour average concentrations. The 8-hour averaging period replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 ppm to 0.08 ppm (62 FR 38,856).

The CAA section 110(a) requires States to submit SIPs that provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within 3 years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon States to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the State develops and submits the SIP for a new or revised NAAQS necessarily affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the State’s existing SIP already contains. In the case of the 1997 8-hour ozone NAAQS, States typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone standards.

Section 110(a)(2) lists specific elements that States must meet in these SIP submissions. The requirements include SIP infrastructure elements such as requirements for modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this action are listed in EPA’s October 2, 2007 memorandum entitled ‘‘Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8- hour Ozone and PM

–2.5 National Ambient Air Quality Standards.’’

Two elements identified in section 110(a)(2) are not governed by the 3 year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (i) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and (ii) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. Therefore, this action does not cover these specific SIP elements. This action also does not pertain to section 110(a)(2)(D), because EPA has previously addressed that requirement.1

As of 2004, States had not submitted complete SIPs to satisfy all of the section 110(a)(2) requirements for the 1997 8-hour ozone NAAQS revision. On March 4, 2004, Earth Justice submitted a notice of intent to sue related to EPA’s failure to issue findings of failure to submit related to these requirements. Subsequently, EPA entered into a Consent Decree with Earth Justice which required EPA, among other things, to complete a Federal Register notice announcing EPA’s determinations pursuant to section 110(k)(1)(B) as to whether each State has made complete submissions to meet the requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA received an extension of the date to complete this Federal Register notice until March 17, 2008, based upon an

1EPA published a finding that all States had failed to submit SIPs addressing interstate transport for the 8-hour ozone and PM2.5 NAAQS, as required by section 110(a)(2)(D)(i). See 70 FR 21,147 (April 25, 2005).VerDate Aug<31>2005 16:02 Mar 26, 2008 Jkt 214001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\27MRR1.SGM 27MRR1pwalker on PROD1PC71 with RULES Federal Register/ Vol. 73, No. 60 / Thursday, March 27, 2008 / Rules and Regulations 16207 agreement to make the findings with respect to submissions made by January 7, 2008. In accordance with the Consent Decree, EPA is making completeness findings for each State based upon what the Agency received from each State as of January 7, 2008. This notice reflects EPA’s determinations with respect to the section 110(a)(2) requirements, based upon the submissions made by the States, either certifying that they have already met the requirements, making a submission to meet any outstanding requirements, or both.

For those States that have not yet made a submittal, or that made a submittal that was not complete with respect to each element of section 110(a)(2), EPA is making a finding of failure to submit. For those States that did not make any submittal by January 7, 2008, EPA is making a finding with respect to all of the section 110(a)(2) SIP elements. For those States that did not make a submittal that addressed all of the section 110(a)(2) elements, EPA is making these findings only with respect to those specific section 110(a)(2) SIP elements which a State has not certified that it has met, or not made a SIP submission to meet, as of January 7, 2008. These findings establish a 24 month deadline for the promulgation by EPA of a FIP, in accordance with section 110(c)(1). These findings of failure to submit do not impose sanctions, or set deadlines for imposing sanctions as described in section 179 of the CAA, because these finding do not pertain to the elements of a Title I part D plan for nonattainment areas as required under section 110(a)(2)(I), and because this action is not a SIP call pursuant to section 110(k)(5).

With respect to the remaining section 110(a)(2) SIP elements in those States in which EPA has identified specific findings of failure to submit, EPA is by this action making a finding that the remainder of such SIPs are complete. Likewise, with respect to those States for which EPA has not made any finding of failure to submit concerning the section 110(a)(2) SIP elements, EPA is by this action making a finding that such SIPs are complete for all such elements. These full and partial completeness findings establish a 12- month deadline for EPA to take action upon such SIPs in accordance with section 110(k). II.This Action

The EPA is making a finding concerning whether each State has submitted or failed to submit a complete SIP that provides the basic program elements of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. For those States that have not yet made a complete submission, or that have not made a submission that is complete for each element of section 110(a)(2), these findings establish a 24- month deadline for the promulgation by EPA of a FIP addressing these specific SIP elements, in accordance with section 110(c)(1). For those States that have submitted a complete SIP, and for those elements of SIPs in States for which EPA has identified only partial incompleteness, these findings establish a 12-month deadline for action upon the SIP, in accordance with section 110(k). This action will be effective on April 28, 2008. A.Finding of Failure To Submit for States That Failed to Make a Submittal

The following States failed to make a complete submittal to satisfy the requirements of section 110(a)(2) by January 7, 2008. EPA is by this action starting a 24-month deadline by which time EPA must promulgate a FIP for the affected States to address section 110(a)(2) requirements, if the affected States fail to submit, and obtain EPA approval of, the SIP revisions necessary to address these requirements. The States and territories that are affected by this finding of failure to submit are the following: Region I: Vermont Region VI: Texas Region VIII: North Dakota Region IX: Arizona, Hawaii, Nevada,2 Guam, American Samoa, Commonwealth of the Northern Mariana Islands. Region X: Alaska, Idaho, Oregon, Washington. B.Finding of Failure To Submit Specific Elements of Section 110(a)(2)

The following States made submissions that address some, but not all of the section 110(a)(2) requirements, by January 7, 2008. EPA is by this action identifying the specific elements for which States have not made a complete submission: Region I:

Massachusetts: The State of Massachusetts has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and

2It should be noted that, while the State of Nevada did not make the submittal addressing the requirements of section 110(a)(2) by the January 7, 2008 timeframe specified in the amended Consent Decree with Earth Justice, the State has subsequently made a submittal to address these requirements on February 1, 2008 and EPA is currently reviewing the submittal for completeness and approvability. therefore this action will not trigger any additional FIP obligation. Region II:

New York: The State of New York has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

New Jersey: The State of New Jersey has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

Puerto Rico: The Commonwealth of Puerto Rico has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

Virgin Islands: The Virgin Islands has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. Region III:

Maryland: As required by sections 110(a)(2)(C) and (J), the State of Maryland has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOX a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

Pennsylvania: The Commonwealth of Pennsylvania has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program) for only the Allegheny County portion of the Commonwealth. However, this requirement has already been addressed by a FIP (Implementation of the Federal PSD program has been delegated to the Allegheny County Health Department) that remains in place, and therefore this action will not trigger any additional FIP obligation. All other areas of the Commonwealth, exclusive of Allegheny County, has a SIP approved PSD program in place.

Virginia: The Commonwealth of Virginia has failed to submit a SIP addressing the part C PSD permit program, which consists of changes required by the November 29, 2005 (70 FR 71612 page 71699) final rule thatVerDate Aug<31>2005 16:02 Mar 26, 2008 Jkt 214001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\27MRR1.SGM 27MRR1pwalker on PROD1PC71 with RULES 16208 Federal Register/ Vol. 73, No. 60 / Thursday, March 27, 2008 / Rules and Regulations made NOX a precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

Washington, DC: The District of Columbia has failed to submit a SIP addressing sections 110(a)(2)(B), (C) (the Part C PSD permit program), (E)(i), (F) (the public availability of reports), (H), and (J) (with respect to a part C Prevention of Significant Deterioration (PSD) permit program and to public notification under section 127).3 The section 110(a)(2)(C) (the Part C PSD permit program) requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation with respect to this requirement.

West Virginia: The State of West Virginia has failed to make a submittal with respect to sections 110(a)(2)(B), (E)(i), (G) (with respect to authority comparable to section 303), (H) and (J) (relating to public notification under section 127) and (M). The State of West Virginia has also failed to submit a SIP addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOX a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

Delaware: As required by sections 110(a)(2)(C) and (J), the State of Delaware has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOX a precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. Region IV:

Florida: The State of Florida has failed to submit a SIP addressing the emergency episode plan requirement of section 110(a)(2)(G).

Georgia: The State of Georgia has failed to submit a SIP addressing the emergency episode plan requirements of section 110(a)(2)(G).

3While the District of Columbia did not make the submittal addressing the aforementioned requirements by the January 7, 2008 timeframe called for under the Consent Decree with Earth Justice, the District of Columbia subsequently made a submittal on January 11, 2008 that addresses the requirements related to sections 110(a)(2)(B), (E)(i), (F)(with respect to the public availability of reports), (H), and (J) (with respect to public notification under section 127). The EPA is currently reviewing the submittal for completeness. The District of Columbia has not submitted a part C PSD permit program required under sections 110(a)(2)(C) and (J). It should be noted, however, that the District of Columbia is already subject to a FIP for a PSD permit program pursuant to 40 CFR 52.499. North Carolina: As required by sections 110(a)(2)(C) and (J), the State of North Carolina has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOX a precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.4

Tennessee: As required by sections 110(a)(2)(C) and (J), the State of Tennessee has failed to submit a SIP addressing changes to its part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOX a precursor for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.5 Region V:

Illinois: The State of Illinois has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation.

Minnesota: The State of Minnesota has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program). However, this requirement has already been addressed by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. Region VI:

Arkansas: As required by section 110(a)(2)(C) and (J), the State of Arkansas has failed to submit a SIP addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOX a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

New Mexico: As required by section 110(a)(2)(C) and (J), the State of New Mexico has failed to submit a SIP addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOX a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

4The State of North Carolina is currently going through the rulemaking process to approve the requirements to meet this element of section 110(a)(2) and anticipates making the submittal to address the requirement by May 2008.

5The State of Tennessee is currently going through the rulemaking process to approve the requirements to meet this element of section 110(a)(2) and anticipates making the submittal to address the requirement by May 2008. Oklahoma: As required by section 110(a)(2)(C) and (J), the State of Oklahoma has failed to submit a SIP addressing changes to the part C PSD permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made NOX a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. Region IX:

California: The State of California has failed to submit a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program) that applies to some Air Districts within the State. However, this requirement has already been addressed for these Air Districts by a FIP that remains in place, and therefore this action will not trigger any additional FIP obligation. All other areas of the State, exclusive of these Air Districts have an approved PSD program in place. C.List of States That Submitted Complete Submissions to Satisfy the Section 110(a)(2) Requirements

The following States have been determined by EPA to have made complete SIP submissions that address all of the section 110(a)(2) requirements by January 7, 2008: Region I: Maine, Rhode Island, Connecticut, and New Hampshire. Region IV: Alabama, Kentucky, Mississippi, and South Carolina. Region V: Indiana, Ohio, Michigan, and Wisconsin. Region VI: Louisiana. Region VII: Iowa, Kansas, Nebraska, and Missouri. Region VIII: Colorado, Montana, South Dakota, Utah, and Wyoming. III.Statutory and Executive Order Reviews A.Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a

‘‘significant regulatory action’’because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B.Paperwork Reduction Act

This action does not impose an information collection burden under theVerDate Aug<31>2005 16:02 Mar 26, 2008 Jkt 214001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\27MRR1.SGM 27MRR1pwalker on PROD1PC71 with RULES Federal Register/ Vol. 73, No. 60 / Thursday, March 27, 2008 / Rules and Regulations 16209 provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This rule relates to the requirement in the CAA for States to submit SIPs under section 110(a) to satisfy certain infrastructure and general authority-related elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that implement, maintain, and enforce a new or revised NAAQS which satisfies the requirements of section 110(a)(2) within 3 years of promulgation of such standard, or shorter period as EPA may provide. The present final rule does not establish any new information collection requirement apart from that already required by law. Burden means that total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA’s regulations in the CFR are listed in 40 CFR part 9. C.Regulatory Flexibility Act (RFA)

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act (APA) or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For the purpose of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business that is a small industry entity as defined in the U.S. Small Business Administration (SBA) size standards (See 13 CFR 121); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3)a small organization that is any not-forprofit enterprise which independently owned and operated is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. D.Unfunded Mandates Reform Act of 1995 (UMRA)

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public Law 104

–4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ‘‘Federal mandate’’that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify, and consider, a reasonable number of regulatory alternatives andadopt the least costly, most costeffective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small government on compliance with regulatory requirements.

EPA has determined that this action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local and tribal governments, in the aggregate, or the private sector in any 1 year. It does not create any additional requirements beyond those of the 1997 8-hour ozone NAAQS (62 FR 38652; 62 FR 38856, July 18, 1997). This rule responds to the requirement in the CAA for States to submit SIPs under section 110(a) to satisfy certain infrastructure and general authority-related elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that implement, maintain, and enforce a new or revised NAAQS which satisfies the requirements of section 110(a)(2) within 3 years of promulgation of such standard, or shorter period as EPA may provide. The EPA believes that any new controls imposed as a result of this action will not cost in the aggregate $100 million or more annually. Thus, this action is not subject to the requirements of section 202 and 205 of the UMRA. E.Executive Order 13132: Federalism

Executive Order 13132, entitled

‘‘Federalism’’(64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure

‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This rule will not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to this rule. F.Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled

‘‘Consultation and Coordination with Indian Tribal Governments’’(65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input byVerDate Aug<31>2005 16:02 Mar 26, 2008 Jkt 214001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\27MRR1.SGM 27MRR1pwalker on PROD1PC71 with RULES 16210 Federal Register/ Vol. 73, No. 60 / Thursday, March 27, 2008 / Rules and Regulations Tribal officials in the development of regulatory policies that have Tribal implications.’’This final rule does not have Tribal implications, as specified in Executive Order 13175. This rule responds to the requirement in the CAA for States to submit SIPs under section 110(a) to satisfy certain elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires that States submit SIPs that provide for implementation, maintenance, and enforcement of a new or revised NAAQS, and which satisfy the applicable requirements of section 110(a)(2), within 3 years of promulgation of such standard, or within shorter period as EPA may provide. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within their jurisdictions. The regulations clarify the statutory obligations of States and Tribes that develop plans to implement this rule. The Tribal Authority Rule (TAR) gives Tribes the opportunity to develop and implement CAA programs, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, the Tribe will adopt.

This rule does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, because no Tribe has implemented an air quality management program related to the 1997 8-hour ozone NAAQS. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this rule. G.Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5

–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it is making findings concerning whether or not each State has submitted a complete SIP that provides the basic program elements specified in CAA section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. The findings of failure to submit for all or a portion of a State’s SIP establish a 24-month deadline for EPA to promulgate FIPs to address the outstanding SIP elements unless, prior to that time, the affected States submit, and EPA approves, the required SIPs. H.Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This rule is not a ‘‘significant energy action’’as defined in Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’(66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. At the time of proposal of the implementation rule for the 1997 8-hour ozone standard, information on the methodology and data regarding the assessment of potential energy impacts regarding implementation of the 1997 8- hour standard was addressed in Chapter 6 of U.S. EPA 2003, Cost, Emission Reduction, Energy, and Economic Impact Assessment of the Proposed Rule Establishing the Implementation Framework for the 1997 8-Hour, 0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the Innovative Strategies and Economics Group, Office of Air Quality Planning and Standards, Research Triangle Park, NC, April 24, 2003. Subsequently, EPA issued an Addendum 1 to that analysis for the Phase 1 final rule (April 30, 2004 (69 FR 33951)) and designated nonattainment areas. By adopting the more flexible approaches while providing for attainment and maintenance of the 8-hour NAAQS as required by the CAA for the areas covered by this rulemaking, additional energy cost associated with more extensive use of less flexible approaches would be averted. I.National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104– 113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS. J.Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not directly affect the level of protection provided to human health or the environment. This notice is making a finding concerning whether each State has submitted or failed to submit a complete SIP that provides the basic program elements of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. K.Congressional Review Act

The Congressional Review Act, 5 U.S.C.801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days after it is published in the Federal Register

. This action is not a ‘‘major rule’’as defined by 5 U.S.C. 804(2). This rule will be effective April 28, 2008. L.Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit Court within 60 days from the date final action is published in the Federal Register. Filing a petition for review by the Administrator of thisVerDate Aug<31>2005 16:02 Mar 26, 2008 Jkt 214001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\27MRR1.SGM 27MRR1pwalker on PROD1PC71 with RULES Federal Register/ Vol. 73, No. 60 / Thursday, March 27, 2008 / Rules and Regulations 16211 final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such rule or action.

Thus, any petitions for review of this action related to a finding of failure to submit related to the requirements of section 110(a) to satisfy certain elements required under section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register

. List of Subjects in 40 CFR Part 52

Approval and promulgation of implementation plans, Environmental protection, Administrative practice and procedures, Air pollution control, Intergovernmental relations, and Reporting and recordkeeping requirements.

Dated: March 17, 2008. Robert J. Meyers, Principal Deputy Assistant Administrator. [FR Doc. E8

–6176 Filed 3

–26

–08; 8:45 am] **BILLING CODE 6560 –** **50 –** **P DEPARTMENT OF COMMERCE**  **National Oceanic and Atmospheric Administration**  **50 CFR Part 679 [Docket No. 071106673** **– 8011** **– 02]**  **RIN 0648 –** **XG65 Fisheries of the Exclusive Economic**  **Zone Off Alaska; Pacific Cod by American Fisheries Act Catcher**  **Processors Using Trawl Gear in the Bering Sea and Aleutian Islands**  **Management Area AGENCY** **:** National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. **ACTION :**  Temporary rule; closure. **SUMMARY :**  NMFS is prohibiting directed fishing for Pacific cod by American Fisheries Act (AFA) trawl catcher processors in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the A season allowance of the 2008 Pacific cod total allowable catch (TAC) specified for AFA trawl catcher processors in the BSAI. **DATES :**  Effective 1200 hrs, Alaska local time (A.l.t.), March 24, 2008, though 1200 hrs, A.l.t., April 1, 2008. **FOR FURTHER INFORMATION CONTACT :**  Jennifer Hogan, 907

–586

–7228. **SUPPLEMENTARY INFORMATION :**  NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S.vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the 2008 Pacific cod TAC allocated to AFA trawl catcher processors in the BSAI is 2,630 metric tons (mt) as established by the 2008 and 2009 final harvest specifications for groundfish in the BSAI (73 FR 10160, February 26, 2008). See §679.20(c)(3)(iii), §679.20(c)(5), §679.20(a)(7)(ii)(A)(7), and §679.20(a)(7)(iv)(A)(1)(ii).

In accordance with §679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the A season allowance of the 2008 Pacific cod TAC allocated to AFA trawl catcher processors in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by AFA trawl catcher processors in the BSAI.

After the effective date of this closure the maximum retainable amounts at §679.20(e) and (f) apply at any time during a trip. Classification

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C.553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by AFA trawl catcher processors in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 21, 2008.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by §679.20 and is exempt from review under Executive Order 12866.

Authority: 16 U.S.C. 1801 et seq. Dated: March 24, 2008. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08

–1079 Filed 3

–24

–08; 3:51 pm] **BILLING CODE 3510 –** **22 –** **S DEPARTMENT OF COMMERCE**  **National Oceanic and Atmospheric Administration**  **50 CFR Part 679 [Docket No. 071106673** **– 8011** **– 02]**  **RIN 0648 –** **XG70 Fisheries of the Exclusive Economic**  **Zone Off Alaska; Pacific Cod by Vessels in the Amendment 80 Limited**  **Access Fishery in the Bering Sea and Aleutian Islands Management Area**  **AGENCY :**  National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. **ACTION :**  Temporary rule; closure. **SUMMARY :**  NMFS is prohibiting directed fishing for Pacific cod for vessels participating in the Amendment 80 limited access fishery in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the B season allowance of the 2008 Pacific cod allowable catch (TAC) specified for vessels participating in the Amendment 80 limited access fishery in the BSAI. **DATES :**  Effective 1200 hrs, Alaska local time (A.l.t.), April 1, 2008, through 1200 hrs, A.l.t., June 10, 2008. **FOR FURTHER INFORMATION CONTACT :**  Jennifer Hogan, 907

–586

–7228. **SUPPLEMENTARY INFORMATION :**  NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S.vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The B season allowance of the 2008 Pacific cod TAC allocated to vesselsVerDate Aug<31>2005 18:55 Nov 10, 2008 Jkt 217001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\12NOR2.SGM 12NOR2mstockstill on PROD1PC66 with RULES2 

### Wednesday, November 12, 2008



# Part II 

# Environmental Protection Agency 40 CFR Parts 50, 51, 53, and 58 National Ambient Air Quality Standards for Lead; Final RuleVerDate Aug<31>2005 18:55 Nov 10, 2008 Jkt 217001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR2.SGM 12NOR2mstockstill on PROD1PC66 with RULES2 66964 Federal Register/ Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations **ENVIRONMENTAL PROTECTION AGENCY**  **40 CFR Parts 50, 51, 53 and 58 [EPA–HQ–OAR–2006–0735; FRL–8732–9]**  **RIN 2060–AN83 National Ambient Air Quality**  **Standards for Lead AGENCY** **:** Environmental Protection Agency (EPA). **ACTION :**  Final rule. **SUMMARY :**  Based on its review of the air quality criteria and national ambient air quality standards (NAAQS) for lead (Pb), EPA is making revisions to the primary and secondary NAAQS for Pb to provide requisite protection of public health and welfare, respectively. With regard to the primary standard, EPA is revising the level to 0.15 μg/m3. EPA is retaining the current indicator of Pb in total suspended particles (Pb-TSP). EPA is revising the averaging time to a rolling 3-month period with a maximum (not-to-be-exceeded) form, evaluated over a 3-year period. EPA is revising the secondary standard to be identical in all respects to the revised primary standard.

EPA is also revising data handling procedures, including allowance for the use of Pb-PM10 data in certain circumstances, and the treatment of exceptional events, and ambient air monitoring and reporting requirements for Pb, including those related to sampling and analysis methods, network design, sampling schedule, and data reporting. Finally, EPA is revising emissions inventory reporting requirements and providing guidance on its approach for implementing the revised primary and secondary standards for Pb. **DATES :**  This final rule is effective on January 12, 2009. **ADDRESSES :**  EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2006–0735. All documents in the docket are listed on the www.regulations.govWeb site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.govor in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202)566–1744 and the telephone number for the Air and Radiation Docket and Information Center is (202) 566–1742. **FOR FURTHER INFORMATION CONTACT :**  For further information in general or specifically with regard to sections I through III or VIII, contact Dr. Deirdre Murphy, Health and Environmental Impacts Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C504–06, Research Triangle Park, NC 27711; telephone: 919–541–0729; fax: 919–541–0237; e-mail: Murphy.deirdre@epa.gov. With regard to section IV, contact Mr. Mark Schmidt, Air Quality Analysis Division, Office of Air Quality Planning and Standards, U.S.Environmental Protection Agency, Mail code C304–04, Research Triangle Park, NC 27711; telephone: 919–541– 2416;fax: 919–541–1903; e-mail: Schmidt.mark@epa.gov. With regard to section V, contact Mr. Kevin Cavender, Air Quality Analysis Division, Office of Air Quality Planning and Standards, U.S.Environmental Protection Agency, Mail code C304–06, Research Triangle Park, NC 27711; telephone: 919–541– 2364;fax: 919–541–1903; e-mail: Cavender.kevin@epa.gov. With regard to section VI, contact Mr. Larry Wallace, Ph.D., Air Quality Policy Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C539–01, Research Triangle Park, NC 27711; telephone: 919–541–0906;fax: 919– 541–0824; e-mail: Wallace.larry@epa.gov. With regard to section VII, contact Mr. Tom Link, Air Quality Policy Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C539–04, Research Triangle Park, NC 27711; telephone: 919–541–5456; email: Link.tom@epa.gov. **SUPPLEMENTARY INFORMATION :**  Table of Contents

The following topics are discussed in this preamble: I.Summary and Background

A.Summary of Revisions to the Lead

NAAQS B.Legislative Requirements C.Review of Air Quality Criteria and

Standards for Lead D.Current Related Control Requirements E.Summary of Proposed Revisions to the

Lead NAAQS F.Organization and Approach to Final

Lead NAAQS Decisions II.Rationale for Final Decisions on the Primary Lead Standard A.Introduction 1.Overview of Multimedia, Multipathway

Considerations and Background 2.Overview of Health Effects Information a.Blood Lead b.Array of Health Effects and At-risk

Subpopulations c.Neurological Effects in Children 3.Overview of Human Exposure and

Health Risk Assessments B.Need for Revision of the Current

Primary Lead Standard 1.Introduction 2.Comments on the Need for Revision 3.Conclusions Regarding the Need for

Revision C.Conclusions on the Elements of the

Primary Lead Standard 1.Indicator a.Basis for Proposed Decision b.Comments on Indicator c.Conclusions on Indicator 2.Averaging Time and Form a.Basis for Proposed Decision b.Comments on Averaging Time and Form c.Conclusions on Averaging Time and

Form 3.Level a.Basis for Proposed Range b.Comments on Level c.Conclusions on Level D.Final Decision on the Primary Lead

Standard III.Secondary Lead Standard

A.Introduction 1.Overview of Welfare Effects Evidence 2.Overview of Screening Level Ecological

Risk Assessment B.Conclusions on the Secondary Lead

Standard 1.Basis for Proposed Decision 2.Comments on the Proposed Secondary

Standard 3.Administrator’s Conclusions C.Final Decision on the Secondary Lead

Standard IV.Appendix R—Interpretation of the NAAQS for Lead A.Ambient Data Requirements 1.Proposed Provisions 2.Comments on Ambient Data

Requirements 3.Conclusions on Ambient Data

Requirements B.Averaging Time and Procedure 1.Proposed Provisions 2.Comments on Averaging Time and

Procedure 3.Conclusions on Averaging Time and

Procedure C.Data Completeness 1.Proposed Provisions 2.Comments on Data Completeness 3.Conclusions on Data Completeness D.Scaling Factors to Relate Pb-TSP and PbPM10 1.Proposed Provisions 2.Comments on Scaling Factors 3.Conclusions on Scaling Factors E.Use of Pb-TSP and Pb-PM10 Data 1.Proposed Provisions 2.Comments on Use of Pb-TSP and PbPM10 Data 3.Conclusions on Use of Pb-TSP and PbPM10 DataVerDate Aug<31>2005 18:55 Nov 10, 2008 Jkt 217001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\12NOR2.SGM 12NOR2mstockstill on PROD1PC66 with RULES2 Federal Register/ Vol. 73, No. 219 / Wednesday, November 12, 2008 / Rules and Regulations 66965

F.Data Reporting and Rounding 1.Proposed Provisions 2.Comments on Data Reporting and

Rounding 3.Conclusions on Data Reporting and

Rounding G.Other Aspects of Data Interpretation V.Ambient Monitoring Related to Revised Lead Standards A.Sampling and Analysis Methods 1.Pb-TSP Method a.Proposed Changes b.Comments on Pb-TSP Method c.Decisions on Pb-TSP Method 2.Pb-PM10 Method a.Proposed FRM for Pb-PM10 Monitoring b.Comments on Proposed Pb-PM10 FRM c.Decisions on Pb-PM10 FRM 3.FEM Requirements a.Proposed FEM Requirements b.Comments c.Decisions on FEM Requirements 4.Quality Assurance Requirements a.Proposed Changes b.Comments c.Decisions on Quality Assurance

Requirements B.Network Design 1.Proposed Changes 2.Comments on Network Design a.Source-oriented monitoring b.Non-source-oriented monitoring c.Roadway Monitoring d.Use of Pb-PM10 Monitors e.Required timeline for monitor

installation and operation 3.Decisions on Network Design

Requirements C.Sampling Frequency D.Monitoring for the Secondary Standard E.Other Monitoring Regulation Changes 1.Reporting of Average Pressure and

Temperature 2.Special Purpose Monitoring 3.Reporting of Pb-TSP Concentrations VI.Implementation Considerations

A.Designations for the Lead NAAQS 1.Proposal 2.Comments and Responses 3.Final B.Lead Nonattainment Area Boundaries 1.Proposal 2.Comments and Responses 3.Final C.Classifications 1.Proposal 2.Comments and Responses 3.Final D.Section 110(a)(2) Lead NAAQS

Infrastructure Requirements 1.Proposal 2.Final E.Attainment Dates 1.Proposal 2.Comments and Responses 3.Final F.Attainment Planning Requirements 1.RACM/RACT for Lead Nonattainment

Areas a.Proposal b.Comments and Responses c.Final 2.Demonstration of Attainment for Lead

Nonattainment Areas a.Proposal b.Final 3.Reasonable Further Progress (RFP) a.Proposal b.Comments and Responses c.Final 4.Contingency Measures a.Proposal b.Comments and Responses c.Final 5.Nonattainment New Source Review

(NSR) and Prevention of Significant Deterioration (PSD) Requirements a.Proposal b.Comments and Responses c.Final 6.Emissions Inventories a.Proposal b.Comments and Responses c.Final 7.Modeling a.Proposal b.Comments and Responses c.Final G.General Conformity 1.Proposal 2.Final H.Transition From the Current NAAQS to

a Revised NAAQS for Lead 1.Proposal 2.Final VII.Exceptional Events Information Submission Schedule for Lead NAAQS A.Proposal B.Comments and Responses C.Final VIII.Statutory and Executive Order Reviews

A.Executive Order 12866: Regulatory

Planning and Review B.Paperwork Reduction Act C.Regulatory Flexibility Act D.Unfunded Mandates Reform Act E.Executive Order 13132: Federalism F.Executive Order 13175: Consultation

and Coordination With Indian Tribal Governments G.Executive Order 13045: Protection of

Children From Environmental Health & Safety Risks H.Executive Order 13211: Actions That

Significantly Affect Energy Supply, Distribution or Use I.National Technology Transfer and

Advancement Act J.Executive Order 12898: Federal Actions

to Address Environmental Justice in Minority Populations and Low-Income Populations K.Congressional Review Act References I.Summary and Background A.Summary of Revisions to the Lead NAAQS

Based on its review of the air quality criteria and national ambient air quality standards (NAAQS) for lead (Pb), EPA is making revisions to the primary and secondary NAAQS for Pb to provide requisite protection of public health and welfare, respectively. With regard to the primary standard, EPA is revising various elements of the standard to provide increased protection for children and other at-risk populations against an array of adverse health effects, most notably including neurological effects in children, including neurocognitive and neurobehavioral effects. EPA is revising the level to 0.15 μg/m3. EPA is retaining the current indicator of Pb in total suspended particles (Pb-TSP). EPA is revising the averaging time to a rolling3-month period with a maximum (notto-be-exceeded) form, evaluated over a 3-year period.

EPA is revising the secondary standard to be identical in all respects to the revised primary standard.

EPA is also revising data handling procedures, including allowance for the use of Pb-PM10 data in certain circumstances, and the treatment of exceptional events, and ambient air monitoring and reporting requirements for Pb, including those related to sampling and analysis methods, network design, sampling schedule, and data reporting. B.Legislative Requirements

Two sections of the Clean Air Act (Act) govern the establishment and revision of the NAAQS. Section 108 (42 U.S.C.7408) directs the Administrator to identify and list each air pollutant, emissions of which ‘‘in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health and welfare’’ and whose ‘‘presence * * * in the ambient air results from numerous or diverse mobile or stationary sources’’ and to issue air quality criteria for those that are listed. Air quality criteria are to ‘‘accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [the] pollutant in ambient air * * *’’. Section 109 (42 U.S.C. 7409) directs the Administrator to propose and promulgate ‘‘primary’’ and ‘‘secondary’’ NAAQS for pollutants listed under section 108. Section 109(b)(1) defines a primary standard as one ‘‘the attainment and maintenance of which in the judgment of the Administrator, based on [air quality] criteria and allowing an adequate margin of safety, are requisite to protect the public health.’’ 1 A secondary standard, as defined in section 109(b)(2), must ‘‘specify a level of air quality the attainment and

1The legislative history of section 109 indicates that a primary standard is to be set at ‘‘the maximum permissible ambient air level * * * which will protect the health of any [sensitive] group of the population,’’ and that for this purpose ‘‘reference should be made to a representative sample of persons comprising the sensitive group rather than to a single person in such a group.’’ S. Rep. No. 91–1196, 91st Cong., 2d Sess. 10 (1970).

### This 100 page Federal Register Final Rule is available in electronicform at several Federal Government web sites including: http://www.regulations.gov/ (search for EPA–HQ–OAR–2006–0735

‐5909 ) and http://www.epa.gov/fedrgstr/

orfrom the EPA Region 6 office by contactingthe person listed in the FOR FURTHER INFORMATION CONTACTsection ofthe New Mexico Federal Register(s) forthis action.ALBUQUERQUE-BERNALILLO COUNTY AlR QUALITY

CONTROL BOARD NOTICE OF HEARING On August 12, 2009, at 5:30 PM, the Albuquerque-Bemalillo Cou')1y Air Quality Control Board (Air

, Board) will hold apUblic hearing In the Vincent E. Griego ChamlielS located in the basement level of the AlbuquetQ\Je-Bemalitlo County Govemment Center, 400 Marque· tte A,enue NWIAbuquerque, NM. The hearing wH address: 

# IProposal to amand 20.11.1 NMAC, General ProY1slons, and 2O.1t.8 NMAC, bien! Air Qua!. ity Standards, and subrilM amend· ments to EPA as arevision to the 

## ISIP. The AQO IS proposing to amend 20.11.1 NMAC, General Provisions, and 20.11.8 NMAC, Ambi- ent Air Quality Standards, for the 

# IfollOwing reasons: 1. The currently effective version ot 20.11. NMAc, General ProY!- s· ns. contains an error.. SectJon 20.11.1.14 NMAC, InterpretationJ \ belongs at 20.11.8.14 NMAC, ana' was left In 20.11.1 NMAC by·mistaJ<e when these TwO rules were amended In 2004. The propoSed amendment deletes this section. 2. The proposed amendments wilt align detinl1ion language codified at 20.11.1.7 NMAC"with deflnMlon**langu.a~e** In: 40 CFR ParI 51.100(s; The New Mexico Air )ualilY nlrol Act; e ro-**~se<f** new rule, 20.11.49 N AC, :xcess EmissionS. J. The proposed amendments will align locel ambient air quelity stahdards codified at 20.11.8.t3 "IMAC, with federal standards. I. The proposed amendments WlII :arrect style and formaltlng. 

## I , Following the hearing, the Air

Board**wi~** holdns regularmon\tllY meeting during wnlch the Air loard IS expected to consider dooting the propoSed revisions to OJ1.f NMAC, General Prov!o 

# I sions, and 20.11.8 NMAC, Ambient Alr Quality Standards. The AIr

.Board IsthefederaJly-deJegated air

uallty authonty for Albuquerque 1d Bernalillo County. Local dele3tion authonzes the Air Board 10 

# I administer and entorce the Clean AI A an<l the New Mexico Air Ouo,ity Control Act, and 10 require

, cal elr pollutJan sources to com· I YWllh all quality tanderds and

yuJalions H ,',ngs and meellngs ot the Air Buard are open to the public and ":' inlerested Il6rsons are encour·

cc '.0 partJcipale. All persons !O wish to testily regarding the olect of the hearing may do so at the hearing and will be given a reasonable opportunity to submK relevant e'ldence, aete. Views,

j argvmenlBl.?rallyor '" wribng, ntr01lJal exruons and 10 exam- \\·,Inesses in accordance with
"'" JoInl Air Quality Control Board**Ordi~'lnces~** Secllon 9·5-1·6 ROA

# I 1994 an<l tl9ITlaJlllo County Ordi·

lce 94-5, Section 6, and 11.82 NMAC, RUlemakIllQ Prolures

-- Air Quality Control**~_.Jrd.** Anyone Inlen<f\l1g to presentteen- "'-I testimony at tills hearing is I li:ed by 20.11.82.20 NMAC 0 ! nil awritten Notice 01 Intent to I fy (NOI) betore 5:00pm on July 28, 2009, to: Ann: Hearing Clerk, Ms. Janice Amend AIbu· Q1;erqlJ8 En'lironmental He8Jtn Denant, P.O. Box 1293, Albuque, NM 87103, or, you may er your NOI to the environ· 

### STATE OF NEW MEXICO County of Bernalillo SS Bill Tafoya, being duly sworn, declares and says that he is Classified Advertising Manager of The Albuquerque Journal, and that this newspaper is duly qualified to publish legal notices or advertisements within the meaning of Section 3, Chapter 167, Session Laws of 1937, aild that payment therefore has been made of assessed as court cost; that the notice, copy of which is hereto attached, was published in said paper in the regular daily eqition, for 

# -L times, the first publication being on the day of



## :.;;{ Cv-22L ,2

### ~sequent consecutive publications on j/**------~=-==-+---f__-+---------------'** 20_.

PRICE_---'--1-----'-0-+V-'---,

## '~~=2=-- 

# __- Statement to come at end of month. ACCOUNT NUMBER CLA-22-A (R-l/93)**~D** EXHIBIT 

# i fa**~.**

OFFICIAL SEAL 

### San ra B. Gutierrez**~I** lVI "lIUIII lfl6 WIUl SS or wtl· nesses wUltestify; 2. identify each technical wUness the person in· tends to present and state the qualifications of that mess. in· eluding adeSCription of their edu· cational and wor\( backgrOUnd; 3. summarize or incIud a copy of the direct testimony of each tech· nical witness end state the antici· pated duration 01 the testimony of that witness; 4. include the text of

# I any recommended modifications to the proposed regulatory change; and 5. list and describe. orallaCh, all axhibits anticipated to be of· I tered by lIIat person at the hear· ing, including any proposed state· ment of reasons for adoption of rules. In addUion, written comments to be incorporated Into the public re- cord for this hearill9 should be re- ceived at \Ile above P.O. box, or Environmental Health Department office. before 5:00 pm en ugusl 5, 2009. Comments shall incrude the name and address of the**Ind~** vidual or organization submitting the statement. Wr1lIen comments may also be submitted electroni· cally to jamendOcabq.gov and shall include the re<juired name and address information. Inlerest· ed persons may obtain a copy 01 the proposed reguiallen atthe"Environmental Heatth Department Office. orbycontactJng Ms. aAlce Amend electronically at ja· mendOcabq.gov or by phone (505) 768-260forby doWnloading a copy fro the Cify of A1buquer· que Air Qualify DiviSIOn**webs~e** hftpJ/wIrN.cabQ.gov/alrquaJity/aqch' publiC'reV18W-drafts. NOTICE FOR PERSON WITH DISABIUTIES: nyou have a dis· ability and/or require speclal as·**slstanc~lease** call (505) 768·2600 oIce) and special as.- sJstance • be made available 10 you to review !l"Y public meeting documents, lrduolnQ agendas and mmutes. TTY users call the New Mexico Relay al 1'800·659-8331 and special assistance '101111 be made available to you to review any public meeting documents, In· dlidlng agendas and minufes Joumal: June 14, 2009.

### New Mcxico RCllister / Volume XX, Number 12/June 30, 2()09 801 

# Notices ofRulemaking and Proposed Rules

NOTICE OF PlIBLIC MEETING AND RULEMAKING HEARING

The proponent of this regulatory adoption and revision is the New Mexico Air Quality Bureau ('"AQB"). The New Mexico Environment Depanment ("NMED") will hold a public hearing on August 13, 2009 at I I:00 a.m. at the Air Quality Bureau. Room 240, 130I Siler Road, Building B, Santa Fe, NM 87507. The purpose ofthe hearing is to consider the matter of amending 20.2.89 NMAC

- Qualified Generating Facility Ccnifit.:ation.

The proposed regulation may he reviewed during regular business hours at the NMED Air Quality Bureau office, 1301 Siler Road. Building B. Santa Fe, New Mexico 87j07. A full text ofNMED's amended regulation is available on NMED's web site at www.nmenv.state.nm.us/aqb. or by contacting Rita Bates at (505) 476-4304 or via email to**rit~.bates@state.nm.us.** 

# r\) EXHIBIT 

# I**~b** 

# mmr NEW ENVIR

DEPA NEW MFXJrC DEPA

NMED is proposing to amend this regulation to implement Senate Bill 237 from the 2009 legislative session (NMSA 1978 Section 7-9G-2). The proposed amended regulations add language that would allow NMED to evaluate solar photovoltaic and geothermal energy projects to determine whether they meet the requirements of a qualified energy facility in order to qualify for t.:ertain tax credits. NMED would then issue a certification for projects that qualify. and would deny certifications to projects that do not meet the requiremems. City of Albuquerque Air Qualil)**Divi~ioll** web I t c hap:

....:www.cabq Qov'airquality,:aqcb,'pub**lic~rcvie\o,.-dratts** . NOTICE FOR PERSON WITH DISABILITIES: If you have a disability and'or require spct.:ial assistance r1ease c,lll (505) 768-2600 [Voice] and special assistallt.:e will be made available to you to review any publit.: mceting dot.:uments, including agendas and minutes. TTY users t.:all the New Mexico Relay at 1-800-659-8331 <lOd spet.:ial assistant.:e will be madc available to you to review any public meeting documems, including agendas and minutes. rollution sourccs (() comrly with air quality standards and regulations. Hearings and meetings ofthe Air Board are npcn hI the public and all interested persons are encouraged to particiratc. All rersons who wish to testify regarding the subject of tbe hearing may do so at (hc hearing and will be given a reasonable orportunity to submit relevant evidence, data. vicws, and argumems, orally or in writing. to introducc exhibits and to examine witnesses in at.:cordant.:e with the Joint Air Quality Control Board Ordinances, Sct.:tion 9-j-I-6 ROA 1994 and Bernalillo County Ordinance 94- j, Seetion 6, and 20.11.82 NMAC, Rulcmaking Procl:'dures

- Air**QlI{l/i~V** Conrrol Board.

In addition. writLen comments to be incorporated into the public record for this**hear~** ing should be received at the above P.O. box, or Environmental Health Department office. before 5:00 pm on August 5, 2009. Comments shall include the name and address of the individual or organization submitting the statement. Written**com~** ments may also be submitted electronically to jamevdrZvcabq.aoy and shall include the required name and address information. Interested persons may obtain a copy of the proposed regulation at the Environmental Health Department Office. or by contacting Ms. Janice Amend elct.:tronically at jamendla.;cabq.goo,.' or by phone (50j) 768- 2601 or by downloading a copy from the Anyone imending to present teehnical testimony at this hearing is required by 20.11.82.20 NMAC to submit a written Notice Of Iment to testify (NOI) before 5:00pm on July 28. 2009, to: Attn: Hearing Clerk, Ms. Janice Amend, Albuquerque Environmental Health Depanment, P.O. Box 1293, Albuquerque, NM 87103, or, you may deliver your NOI to the Environmental Health Department. Room 3023.400 Marquette Avenuc NW. The NOI shall: l. identify the person for whom the witness or wimesses will testifY; 2. identify each technical witness the person imends to present and state the qualifications of that witness, including a description of their educational and work background; 3. summarize or include a wpy ofthe direct testimony ofeach technical witness and state the anticipated duration ofthe testimony ofthat witness: 4. include the text of any recommended modifications to the proposed regulatory change; and 5. lisr and describe, or attach, all exhibits antit.:ipated to be offered by that person at the hearing, including anv proposed statement ofreasons for**adoptio~** ofrules. The AQD is proposing to amend 20.11.1 NMAC, General Provisions, and 20.11.8 NMAC, AmbienfAir**Ql1ali~v** Standards, for the following reasons: 1 The currently effective version of 20.11. J NMAC, General Provisions, conmins an error. Section 20.11.1.14 NMAC, Interpretation, belongs at 20.11.8.14 NMAC, ami was left in 20.11.1 NMAC bv mistake when these two rules were amenci· ed in 2004. The proposed amendment deletes this section. 2 The proposed amendments will align definition language codified at 20.11.1.7 NMAC with definition language in: 40 CFR Part 51.100(s); The New Mexico Air Quality Control Act; and a proposed new rule, 20.11.49 NMAC, Excess Emissions. 3 The proposed amendments will align local ambient air quality standards codified at 20.11.8.13 NMAc' with federal standards. 4. The proposed amendments will correct style and formatting. Proposal to amend lO.II.l NMAC Generol Provisions, and 20.11.8 NMAC, Ambie/If Air**QlIali~\i** Standards, and submit amendments to EPA as a revision to the SIP. On August 12, 2009, at j:30 PM. the.: Albuquerque-Bernalillo County Air Quality Control Board (Air Board) will bold a rub. lie hearing in the Vincent E. Griego Chambers located in the basement level of the Albuquerque-Bernalillo County Government Center, 400 Marquette Avenue NW, Albuquerque, NM. The hearing will address: ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD NOTICE OF HEARING

Following the hearing, the Air Board will hold its regular montbly meeting during whit.:h the Air Board is expected to considcr adopting the proposed revisions to 20.11.1 NMAC, General Provisions, and 20.11.8 NMAC, Ambient Air Quality Standards. The Air Board is the federally-delegated air quality authority for Albuquerque and Bernalillo County. Local delegation authorizes theAir Board to administer and enforce the Clean AirAct and the New Mexico Air Quality Control Act, and to require local air

### ALBUQUERQUEBERNALILLO COUNTY AIR QUALITY CONTROL BOARD

### ~Nt> EXHIBIT 

# 3 

# b c 

# I Clear Day



### Butt, Neal T. From: Sent: 

### To: Subject: 

### Page I of2

Amend, Janice C. Uamend@cabq.gov] Friday, June 12, 2009 11 :04 AM air-quality-announce@lists.cabq.gov Legal Ad for 20.11.1 NMAC, General Provisions and 20.11.8 NMAC, Ambient Air Quality Standards Follow Up Flag: Follow up Flag Status: Green

Please do not respond directly \0 this ListServe announcement. 

### ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD NOTICE OF HEARING On August 12,2009, at 5:30 PM, the Albuquerque-Bernalillo County Air Quality Control Board (Air Board) will hold a public hearing in the Vincent E. Griego Chambers located in thebasement level of the Albuquerque-Bernalillo County Government Center, 400 Marquette Avenue NW, Albuquerque, NM. Thehearing will address: Proposal to amend 20.11.1 NMAC, General Provisions, and 20.11.8 NMAC, AmbientAir Quality Standards, and submit amendments to EPA as a revision to the SIP. The AQD is proposing to amend 20.11.1 NMAC, General Provisions, and 20.11.8 NMAC, Ambient Air Quality Standards, for the following reasons: I. 

### The currently etTeclive version of20.11.1 NMAC, General Provisions, contains an error. Section 20.11.1.14 NMAC, Interpretation, belongs at 20.11.8.14 NMAC, and was left in 20.11.1 NMAC by mistake when these two rules were amended in 2004. The proposed amendment deletes this section. 2. The proposed amendments will align definition language codified at 20.11.1.7 NMAC with definition language in: 40 CFR Part 51.1 OO(s); The New Mexico Air Quality Control Act; and a proposed new rule, 20.11.49 NMAC, Excess Emissions. 3. The proposed amendments will align local ambient air quality standards codified at 20.11.8.13 NMAC, with federal standards. 4. The proposed amendments will correct style and formatting. Following the hearing, the Air Board will hold its regular monthly meeting during which the Air Board is expected to consider adopting the proposed revisions to 20.11.1 NMAC, GeneralProvisions, and 20.11.8 NMAC, AmbientAir Quality Standards. The Air Board is the federally-delegated air quality authority for Albuquerque and Bernalillo County. Local delegation authorizes the Air Board to administer and enforcethe Clean Air Act and the New Mexico Air Quality Control Act, and to require local air pollution sources to comply with air quality standards and regulations. Hearings and meetings ofthe Air Board are open to the public and all interested persons are encouraged to participate. All persons who wish to testify regarding the subject ofthe hearing may do so at the hearing and will be given areasonable opportunity to submitrelevant evidence, data, views, and arguments, orally orin writing, to introduce exhibits and to examine witnesses in accordance with the Joint Air Quality Control Board Ordinances, Section 9-5-1-6 ROA 1994 and Bernalillo County

7/27/2009

### Clear Day Page 2 of2

Ordinance 94-5, Section 6, and 20.11.82 NMAC, RulemakingProcedures

--AirQuality Control Board. 

### Anyone intending to present technical testimony at this hearing is required by 20.11.82.20 NMAC to submit a written Notice OfIntentto testify (NO!) before 5:00pm on July 28, 2009, to: Attn: Hearing Clerk, Ms. Janice Amend, Albuquerque Environmental Health Department, P.O. Box 1293, Albuquerque, NM 87103, or, you may deliveryour NOI to the Environmental Health Department, Room 3023, 400 Marquette Avenue NW. The NO! shall: 1. 

### identify the person for whom the witness or witnesses will testify; 2. identify each technical witness the person intends to present and state the qualifications ofthat witness, including a description oftheir educational and workbackground; 3. summarize orinclude a copy ofthe direct testimony ofeach technical witness and state the anticipated duration ofthe testimony ofthat witness; 4. include the text ofany recommended modifications to the proposed regulatory change; and 5. list and describe, or attach, all exhibits anticipated to be offered by that person at the hearing, including any proposed statementofreasons for adoption ofrules. In addition, written comments to be incorporated into the public record for this hearing shouldbe received at the above P.O. box, or Environmental Health Department office, before 5:00 pm on August 5,2009. Comments shall include the name and address ofthe individual or organization submitting the statement. Written comments may also be submitted electronically to**j~mend@CiIh<t.gov** 

### and shall include the required name and address information. Interested persons may obtain a copy ofthe proposed regulation at the Environmental Health Department Office, orby contacting Ms. Janice Amend electronically atjamJ;nd@mbq.gov orby phone (505) 768-2601 orby downloading a copy from the City ofAlbuquerque Air Quality Division website http://'i'/Yiw.

### cabq.gov1**air'lu'!hty!~b/p\lhli(;cIevie}\'_-drafts** 

### . NOTICE FOR PERSON WITH DISABILITIES: Ifyou have a disability andlorrequire special assistance please call (505) 768-2600 [Voice] and special assistance will be made available to you to review any public meeting documents, including agendas and minutes. TTY

### users call the New Mexico Relay at 1-800-659-8331 and special assistance will be made available to you to review any public meeting documents, including agendas and minutes Thank you, Jmicc C. .-\mcnJ Air Qu;.-Ility' Control Board Liaisl'll City of .-\lhuqucrqllc ("68,**16l~1**

7/27/2009

### Butt. Neal T. From: Sent: To: Subject: Follow Up Flag: Flag Status: correo [root@correo.cabq.gov] Friday, March 27, 20092:15 PM Butt, Neal T. air-quality-announce Follow up Orange rcudney@swcp.com hershber@unm.edu rnldumon@sandia.gov gdennis@cabq.gov gdingrnan@cabq.gov bjones@cabq.gov akearny@cabq.gov jliberatore@cabq.gov bortega@cabq.gov yrosario@cabq.gov rnstebleton@cabq.gov Churchhw@aol.com dU_ffiond@juno.com LRose@rnontand.com bagallegos@cabq.gov caaragon@cabq.gov ppuckett@cabq.gov itavarez@cabq.gov calbrecht@cabq.gov dgates@cabq.gov rnltorrez@cabq.gov brncgill@gcc.com rnayor@cabq.gov flucero@cabq.gov dsalisbury@cabq.gov bwinter@cabq.gov msanchez@cabq.gov spruiell.stanley@epamail.epa.gov todd.robert@eparnail.epa.gov ychavez@rnercury.bernco.gov ernckinley@rnercury.bernco.gov msalazar@rnercury.bernco.gov steve_dubyk@nmenv.state.nrn.us belljd@vmcmail.com kobnews@swcp.com paul.burt@krqe.com Itafoya@mercury.bernco.gov tloner@cabq.gov drocha@cabq.gov nbennett@rnercury.bernco.gov clehner@cabq.gov shivgoel@hotrnail.com pchandler@bernco.gov Lany_Weaver@nrnenv.state.nm.us Gail_Cooke@nrnenv.state.nm.us**Sandra~Ely@nmenv.state.nrn.us** rita_trujillo@nrnenv.state.nm.us**Brad~Musick@nmenv.state.nm.us** slacy@doeal.gov dmckay@abqjournal.com karenflash@aol.com krnulloy@salud.unm.edu mpappas@e2m.net sricdon@earthlink.net 1fmacias@cabq.gov jgoulcl@doeal.gov hdoldew@sandia.gov lstark@cabq.gov trnenicucci@cabq.gov paul.silverrnan@geltmore.com mcarstens@deltapower.com rwilliams@classonetech.com EAdarns@cabq.gov JCastillo@cabq.gov SMayer@cabq.gov JDileanis@cabq.gov MCadigan@cabq.gov RSertich@cabq.gov NBennett@bernco.gov rdoucette@bernco.gov adgallegos@bernco.gov ernckinley@bernco.gov planner@co.valencia.nrn.us sricpaul@earthlink.net poienvir@nrn.net danwestern@qwest.net aquaticpoolsinc.com aquatic004@aol.com ronfernandez@sandiaproperties.com Regtext@netscan.com dennisr@agc-nrn.org dsumshler@worldnet.att.net vljararnillo@cabq.gov dnason@cabq.gov pmseby@52801aw.com jhorton@agc-nm.org wacorrals@msn.com tlucero@mercury.bernco.gov sfish@mercury.bernco.gov gschroeder@rnercury.bernco.gov TRAILSMGMT@aol.com gnryba@cyberrnesa.com nrnpirg@pirg.org rogerp@rnercury.bernco.gov davern@bernco.gov jkelly@amafca.org lsk@swcp.com DRay@cabq.gov roger.o.rncclellan@att.net lrnoye@pnrn.com robby@swop.net swalters@cabq.gov bhall@cabq.gov ssummers@cabq.gov aduran@cabq.gov Ithomas@geraldmartin.com jackson@high-desert.com rnoisessanchez@terra.cl stevern@bernco.gov jleckst@sandia.gov hahwang@sandia.gov rsanchez@generalgrowth.com theresasanchez@cabq.gov jkubica@cabq.gov tagarcia@cabq.gov mcandelaria@cabq.gov bamaldonado@cabq.gov rrncclannahan@abqjournal.com cblewett@mrcog-nm.gov pgrice6622@aol.com jlovato@arnafca.org 2aldaz@aps.edu kwent2@unm.edu NButt@cabq.gov rbeverly8@msn.com nelsonconsulting@qwest.net broehm@wagnerequipment.com gnerich@hotmail.com bjbrockx@aol.com gary.henderson@erm.com mike.sullivan@wmeng.com mike@bmt-tank.com sfettes@cabq.gov jhamel@cabq.gov tmiller@cabq.gov valcole@tlash.net mikehconsulting@aol.com krnaesta@pnm.com andrew.d.moen@intel.com helen.Rinehart@genmills.com DANIELDENTON@msn.com Kordzi.Joe@epamail.epa.gov tlucero@bernco.gov jbrennan@abqjournal.com NNorem@pnm.com cabeyta@zianet.com ddailey@cabq.gov swngaikido@yahoo.com gjoffel@comcast.net ARogers967@aol.com PatMcCraw@aol.com nucanm@nucanm.org hqhfarm@comcast.net rogerp@bernco.gov hoofprintspublication@hotmail.com domalley@cabq.gov msalazar@bernco.gov jowen@ci.rio-rancho.nm.us lori.snyder@ae.ge.com Jackie.Carnes@kirtland.af.mil jcacklen@swcp.com scott.clark@kirtland.af.mil nrncga@nmagriculture.org RSolomon@cabq.gov jlewis@cybermesa.com mark@markrudd.com john.pike@kirtland.af.mil mbfernandez@aol.com tomasita@swop.net julio_dominguezl@yahoo.com krichards@bernco.gov Dalderete@cabq.gov Rosanne Sanchez@nmenv.state.nm.us Jebrink@comcast.net khendricks@bernco.gov Shar.Alan@epamail.epa.gov sjlucero@cabq.gov rennie.sandra@epa.gov M:Nieto@cabq.gov carl.nord@etest.com Corey.Hansen@lafarge-na.com jwjengr@aol.com sfinch@shomaker.com raragon@donalddvigil.com tpedroncelli@cabq.gov mdavis@abqjournal.com pghahnphd@comcast.net orlando r@msn.com 3phalajian@modrall.com asantistevan@cabq.gov mcampen@lrri.org mminturn2@comcast.net wcs@modrall.com felicia.orth@state.nm.us jdimas80@yahoo.com hseus@e2m.net rnvanreenen@e2rn.net SWarfield@cabq.gov rgedrim@rnsn.com dkenny@atlasabq.com. LSonntag@cabq.gov rnollywhy2004@yahoo.com Yasmeen@rnrgcd.com rnclark@e2m.net brad.musick@state.nm.us orlando.r@rnsn.com klienernann@cabq.gov matthewc@bernco.gov mpenvironmental@msn.com kyle@rtoads.com Mark.Cubbage@americangypsum.com bxaragon@cabq.gov skanbar@cabq.gov claude.morelli@transnuevo.com kristine.suozzi@state.nrn.us kelowey@state.nm.us penland.catherine@epa.gov acgeng@aol.com kurnbaOl@earthlink.net spaladugu@bernco.gov rnsbianca@sneej.org jprewitt6@comcast.net decorahamiel@aol.com west.regtxt@thomson.com cholloway@doeal.gov rustycook4412@msn.com jrnmause@sandia.gov mschluep@kleinfelder.com brian.degani@state.nm.us jeffrey.fredine@state.nm.us ray.matthew@state.nm.us clakins@dornenicilaw.com dreyes@cabq.gov Marcelle.Fiedler@pnmresources.com nucanm@mail.nucanrn.org Ipacias@ydinm.org dcampbell@vogelcampbell.com jamend@cabq.gov todil@rnckennalong.com randy@nmlobbyist.com lauren@environrnentnewmexico.org lotero61@rnsn.com crhll@swcp.com nmcga@nmagriculture.org dgriffin@cabq.gov lori.snyder@ge.com Itollefson@mrcog-nrn.gov toornuchdust@swcp.com gernroller@swcp.com RUEBUSH@AOL.COM jps3170@corncast.net RUEBUSHL@AOL.COM chris.keller@sunset-rnernorial.com paul.layer@frenchmortuary.com RPenttila@cabq.gov 4jennifer.dann@kirtland.af.mil tyelar54@yahoo.com**diane~souder@nps.gov** DMANIGAN@Quikrete.com rdelapp@pnm.com Rtimma@MEGACORPINC.com FGUCCILLO@msn.com Anihealth@AOL.com albWalt@yahoo.com pwade@classonetech.com ftuccillo@msn.com Young.Carl@epamail.epa.gov rjcroninnm@comcast.net oziewinter@yahoo.com Ksanchez-pare@cabq.gov dharris@cabq.gov tjones@cabq.gov rgarduno@cabq.gov ibenton@cabq.gov abqmetals@yahoo.com maledo@cabq.gov jrchavez@abcwua.org jps317@comcast.net nnoren@pnm.com fgucillo@msn.com ftucillo@msn.com jp5317@comcast.net dmadigan@quikrete.com jens.deichmann@gmail.com mmenache@salud.unm.edu bill.grantham@state.nm.us shgutierre@bernco.gov loralucero@aol.com shgutierre@bernco.gov Thomas.Scharmen@state.nm.us jennifer.dann@kirtland.af.mil artsharpe@wildblue.net dmiera@bernco.gov sdanciger@bernco.gov romero.rosemary@gmail.com marladesk@gmail.com jcudney@trinityconsultants.com marlagayle@aol.com marcelle.vanreenen@hazair.com mary.uhl@state.nm.us Rita.Bates@state.nm.us sufi.mustafa@state.nm.us Kerwin.Singleton@state.nm.us Robert.Warder@kirtland.af.mil Matthew.Ojile@erm.com simon@alibi.com bfrederick@nmelc.org lynne@naiopnm.org Martha.Garcia.ctr@Kirtland.af.mil droark@gcc.com dannie.masters@saralee.com mdear@cabq.gov Dona.Upson@med.va.gov jacksully_2@q.com sglass@bernco.gov

5UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 1445 ROSS AVENUE, SUITE 1200 DALLAS, TX 75202-2733 

### N;lO EXHIBIT 

# i 

# 7 I

Mr. Neal But( Environmental Health Scientist 

### MAY 2' ([.(9 

### Environmental Hcalth/Air Quality DivIsion P.O. Box 121)3 

### Albuquerque, NM 87102 DearMr. Butt: Thank you for the opportunity to review and comment on proposed revisions to the New Mexico Administrative Code, Title 20, Chaptcr 1I, Part 8 regulation concerning Ambient Air Quality**~'i;JdJ(ud;::,.** 

## :i**i~** fJut' 

### uliJCistcuiJing (hal 

### thi:i**{~\i!)i0Jl ~vin** **t;pjdt~ t~lC**  

### Pail

## e**i'"~5i.i~~tiO;l** 

### tv 

### include EPA's-recently adopted ndtional ambient airquality standards for the 8-Hour Ozone (75 ppb), Lead (Pb), and Particulate Matter (PM2S). We have reviewed the proposal and have no comment. Thank you for the opportunity to provide cmuments on this proposed rule. Should you have any questions regarding this letter, please feel free to contact me at (214) 665-7242, or Mr. Alan Shar at (214) 665-6691. Sincerely, 

# /cr 

# /;fLi Guy [){'Jlaldson Chil'f AirPlanning Section

Internet Address (URl) • http://Www.epa.gov RecycledlRecyclable • Pnnfed with Vegetable 011 Based Inks on Recycled Paper (Minimum 25% POs'lconsumer), AdfHIBIT 

# i 

# 8 

# I [Testimony for Hearing to amend 20.11.1 NMAC, General Provisions, And**20~.1'!"!I"","-----'** 

### NMAC, Ambient Air Quality Standards] SLIDE 1


### Good evening, Mr. Hearing Otlicer, Chainnan, and members ofthe Board. My name is Neal Butt, and Iwork in the Control Strategies Section ofthe Air Quality Division. I would like to present for your consideration, proposed amendments to 20.11.1 NMAC, General Provisions, And 20.11.8 NMAC, Ambient Air Quality Standards. SLIDE 2. EXHIBITS



### I would tirst like to review the exhibits and then I will proceed with the rest ofmy presentation: AQD Exhibit I AQD Exhibit Ia AQD Exhibit Ib

AQD Exhibit 2 AQD Exhibit 3

AQD Exhibit 4

AQD Exhibit 5 •Petition to Amend' filed on May 22, 2009; Public Review Draft {attached to AQD Exhibit I} showing proposed amendments to 20.11.1 NMAC, General Provisions; Public Review Draft {attached to AQD Exhibit I} showing proposed amendments to 20.11.8 NMAC, AmbientAirQuality Standards; August 3, 2005 Federal Register Notice which revoked the I-hour ambient air quality standard for ozone; October 17, 2006 Federal Register Notice which stipulates changes made to the federal ambient air quality standards for PM 2.5 [Electronic]; March 27, 2008 Federal Register Notice which stipulates changes made to the federal ambient air quality standard for Ozone, 8-hour average; November 12,2008 Federal Register Notice which stipulates changes made to the federal ambient air quality standard for lead [Electronic];

### AQD Exhibit 6 

### albic Public notices ofhearing, including the legal advertisement ofthis hearing in the Albuquerque Journal {6a} and the New Mexico Register {6b}, as well as the 'Notice ofAvailability ofthe Public Review Draft' whichwas sent to the Air Quality Announce List Serve as well as alist ofthose individuals' e-mail addresses {6c} AQD Exhibit 7 Comments received from EPA AQD Exhibit 8 DirectTestimony and PowerPoint slides AQD Exhibit 9 Draft Agenda, Air Quality Control Board, for August 12, 2009 SLIDE 3 

### Reasons for Proposed Amendments



### The reasons for these amendments as follows:

#1. The currently effective version of20.11.1 NMAC, General Provisions, 

### contains an

error. Section 20.11.1.14 NMAC, Interpretation, 

### belongs at 20.11.8.14 NMAC, and was left in 20.11.1 NMAC by mistake when these two rules were amended in 2004. The proposed amendment deletes this section.

SLIDE 4 Reasons for Proposed Amendments



### #2. The proposed amendments will align definition language codified at 20.11.1.7 NMAC with definition language in: 40 CFR Part 51.1 OO(s); The New Mexico Air Quality Control Act; and proposed 20.11.49 NMAC, Excess Emissions.

SLIDE 5 Reasons for Proposed Amendments

2

### #3•. The proposed amendments will align local ambient air quality standards codified at 20.11.8.13 NMAC, with federal standards; and

SLIDE 6 #4.. 

### The proposed amendments will correct style and formatting.

SLIDE 7 

### Conclusion & 

### Questions



### Therefore, The Environmental Health Department ofthe City ofAlbuquerque, by and through the Air Quality Division, asks the Albuquerque-Bernalillo County Air Quality Control Board to adopt these amendments to 20.11.1 NMAC, GeneralProvisions. and 20.11.8 NMAC, AmbientAir Quality Standards, and submit these amendments to EPA as a revision to the State Implementation Plan (SIP). That concludes my testimony, and I stand for questions



### 3HEARING TO AMEND 20.11.1 NMAC, GENERAL PROVISIONS, AND 20.11.8 NMAC, AMBIENT AIR QUALITYSTANDARDS AQCB Petition No.**2009~3** Nul 8ull. Em,'ironmfnfal Health Scifntisl AlbllquerqU<"**En~'ironmtncal** Hulth Ot-partmt'nt Air Quality DI"lsion Conlrol Slrlllltglrs SNtlon T\1argart't Nieto, Control Slratf'git's Supe.rvlsor



### !Exhibits

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...bdl.**st~bto** (b.:qn to* tQ rc.Jcnlllllbaillu**~1ay** laAkbrd for ad IF:kctroolCl. I\QDf..\!libI16il-to'C**~\Jcm::"'lttSorllcarml.lSI.:lud.lDlthe** ILl**\~1SdDCII1Nlbl\ .tbt.~~116l'**  IDdIbcNcwMtu:..'RqUlC'l (6t'l U-"CUhtbc 'Nt

...... "CI,r \v.lIlbbllrty(.(UIePubbc RC\1C1"' Drlft- IlIbdl wu tcDt**ltl~NJQu.aIny** \noowlcc l..s Sa'l'Cu",ctJ**b.llft(lfl~** Il\dNld\l.11:f**e-m.1I1~** 16c'1 'OD L'<hlbl1 7 (\'lIImCOb «XX1\'t'd {rvm I:P:\ .\QI") LUiblt l> 1)y«1 TCS(1!l)(1Oyand P('1ICrh''sl1**~bd13** \QI' UJu1m 'I DraftAaCllda..Au alty {"''CIt",tBt"n:t. fl'ofAu,lUt**I~.**



### Proposed Amendments #1. The currently effective version of20.1 J.l NMAC, General Provisions, contains an error. Section 20.11.1.14 NMAC, Interpretation, belongs at 20.11.8.14 NMAC, and was left in 20.11.1 NMAC by mistake when these two rules were amended in 2004. The proposed amendment deletes this section.

1

### Proposed Amendments #2. The proposed amendments will align

definition language codified at 20.11.1.7 NMAC with definition language in: 40 CPR Part 51.1 OO(s); The New Mexico Air Quality Control Act; and proposed 20.11.49 NMAC, Excess Emissions.



### Proposed Amendments

#3

.. The proposed amendments will align local

ambient air quality standards cadifled at 20.11.8.13 NMAC, with federal standards; and



### Proposed Amendments

#4

.. The proposed amendments will correct style

and formatting.



### 2

### Request .. Therefore, The Environmental Health

Department ofthe City ofAlbuquerque, by and through the Air Quality Division, asks the Albuquerque-Bernalillo County Air Quality Control Board to adopt these amendments to 20.11.1 NMAC, General Provisions. and 20.11.8 NMAC, AmbientAir Quality Standards, and submit these amendments to FPA as a revision to the Stale Implementation Plan (SIP).



### 3ALBUQUERQUE-BERNALILLO COUNTY AIR QUAL lTV CONTROL BOARD

Chair, .Jens De-lehmann, Count)' l'icL' Chair, Dr.**Mar~aret** Mrnllchr. County Mr. I\ug:ustlne Grace III. PE. City l\rtr. Art Sharpe. ("it)' .\tIr. Jim Brinkman. County Or. Dona Upson. City i\lr..Jack Sulllun. City Louis PlldilS. Here Ualson Mr. Isreal Ta..'arel., Air Quality Di\'islon. Secretary to the Board 

# 'A EXHIBIT**-~Qv** 

# 9 

# I

Dale: Augusl 12,2009 (Wednesday) 

### i Time: 5:30 p.m. j (;enera} inquire.\" rL'garding this agenda ";ay he tlirct.:lcdto Janice Amend (.5()5) 768-_"60/ :**(j"mend~'(:ilhq.gov).** Hearing Location: Vincenl E. Griego Chambers Albuquerque-Bernalillo Counly Government Center 400 Marquelte NW Albuquerque, NM



### On the matter ofPetition to amend 20.11.1 NMAC, 

### General Provisions and 20.11.8 NMAC, 

### AmbientAir Quality Standards Regular Monthly Meeting Drart Agenda CALL TO ORDER Item 

### #1 Item 

### #2 

### Approval ofAgenda (Chair) Approval ofJuly 8, 2009 Meeting Minutes (Chair) PUBLIC COMMENT ACTION ITEMS Item 

### #3 Decision on matter ofPetition to amend 20.11.1 NMAC, 

### General Prol'isions and 20.11.8 NMAC, 

### AmbientAir Quality Standards REPORTS 

### Division Reports provided in writing. Staffavailable tor questions. Item #4 

### Monthly Air Quality website update

- Isreal Tavarez OTHER BUSINESS Item #5 Item 

### #6 Item #7 

### Trinity Consultants presentation on GHG

- Georgette Reeves Classilieations ofAir Pollution

- JelfStonesifer, EH Scientist, AQD Discussion ofRegional Air Authority question

- Chairman Deichmann

### ADJOURNMENT NEXT SCHEDULED BOARD MEETING AND HEARING: September 9,2009,5:30 p.m. Members ofthe public who wish to address the: Board, may do so by .·dgning up with the Board Clerk and indicating c:ithcr the agenda item they inh:nd to address. or wht:ther they wish to make a general public comment. Sign up must occur prior to till: Board's consideration ofeach item. Each person will be given up to two minutes to speak.

··Nolice topersons with disahilith's: l})'vt, h(U'(' lJ**,n"iabili~v** and require special u.\'.\'istance 10participate in rhi

... pn)('t!ss, please cullJ II (Voice) und ,pedal as.\'islunce willhe made uvuiluhle toyou to receil,t! unypub/h'meeting tlot.'umems, induding agenda." and mimlles. 'TTy usen' may request "pedal ussistunce by calling 1-8(){)-65Y1iJ3L••1 AQD Exhibit 10 2 3 Staff's Proposed Floor Amendments for 20.11.1 N'\1AC 4 5 6 20.11.1.7 DEFINITIONS: The definitions of[This**~artl** 20.11.1 NMAC apply unless there is a conflict 7 betweendefinitions in otherparts, io which case the definition found io the applicable part shall govern. The 8 definitions include the measurements, abbreviations, and acronyms in SubsectionGGGG, of20.11.1.7 NMAC. 9 10 HH. "Inedible animal by-product processing" means operations primarily engaged in rendering, 11 cooking, drying, dehydration, digesting, evaporatiog [aOOief] or concentratiog ofanimal proteios and fats. 12 13 000. "Responsible official" means one ofthe followiog: 14 (1) for a corporation: a president, secretary, treasurer, or vice-president ofthe corporation in charge 15 ofa principal business function, or any otherperson who performs similar policy or decision-making functions for 16 the corporation, ora duly authorizedrepresentative ofsuch personifthe representative is responsible for the overall 17 operation ofone ormore manufacturing, production, or operating facilities applying for, or subject to apennit and 18 either: 19 (a) the facilities employ more than 250 persons orhave gross annual sales orexpenditures 20 exceediog $25 million (in second quarter 1980 dollars); or 21 (b) the delegation ofauthority to suchrepresentativcs is approved in advance by the 22 department; 23 (2) for a partnership or sole proprietorship: a general partner or the proprietor, respectively; 24 (3) for a municipality, state, federal or other public agency: eithera principal executive officer or 25 ranking elected official; for the purposes of[tais reg!!latisH] 20.11.1 NMAC, aprincipal executive officer ofa 26 federal agency includes the chiefexecutive officerhaviog responsibility for the overall operations ofa priocipal 27 geographic unit ofthe agency (e.g., aregional administratorofEPA); or 28 (4) for an acid rain source: 29 i.!!L-the designated representative (as deflned in Section 402(26) ofthe federal act) io so far as 30 actions, standards, requirements, orprohibitions underTitle IV ofthe federal act or the regulations promulgated 31 thereunder are concerned; and 32 (b) the designatedrepresentative for any otherpurposes under 40 CFRPart 70. 33 34 GGGG. "Measurements, abbreviations. and acronyms" 35 [APel> AirPslMis!! CSHlrsl Di>'isisH]



### StaffProposed FloorAmendments for 20.11.1 NMAC & 

### 20.11.8 NMACStaff's Proposed Floor Amendments for 20.11.8 NMAC

20.11.8.8 SAVINGS CLAUSE: Any amendment toAmbientAir Quality Standards, 20.11.8 NMAC, [t!>atJ which is filed with the state records center, shall not affect actions pending for violation ofa city or county ordinance, the air quality regulations for Albuquerque and Bernalillo county or apermit issuedby the department. Prosecution for a violation under a prior statute, ordinance, regulation orpennit shall be governed and prosecuted under the statute, ordinance orregulation in effectatthe time the violation was committed. [20.11.8.8 NMAC

- N, 7/1/04; A, 9/14/09]

Hydrogen Sulfide I-hr average 20.2.3.110 NMAC Total Reduced Sulfur II2-hour average 20.2.3.110 NMAC Standards Federal Federal New Mexico Primary Secondary State

none none 0.10 ppm

none none 0.010 ppm

none none 0.003 ppm

none none 150 fig/m'

none none 110 fig/m'

none nOne 90 fig/m'

none nOne 60 fig/m' Reference

20.2.3.109 NMAC 20.2.3.109 NMAC SUMMARY OF FEDERAL AND STATE AMBIENT AIR QUALITY STANDARDS: 20.11.8.13 Pollutant

Nitrogen Dioxide (NO,) 24-hour average 20.2.3.111 NMAC

Particulate Matter (TSP) 24-hour average 20.2.3.109 NMAC 7-day average 30-day average Armual geometric mean 20.2.3.\09 l'l'MAC [20.11.8.13 NMAC

- N, 711/04; A, 9/14/09] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38



### StaffProposed FloorAmendments for 20.11.1 NMAC & 

### 20.11.8 NMAC 2Public Comment by Kitty Richarg.s,-.&ernaHUo.J::ounty Office of Environmental Health, August 12, 2009, Title 20, Chapter 11, Part 1, Geheral Provisions nd Title 20, Chapter 11, Part 8, AmbientAirQuality Standards ., 

## 9i---

_ it

. 1. Based on their Notice of Intent, the City of Albuquerque, Air Quality Division (AQD) states that their rationale for the proposed rule 'changes to 20.11.1 NMAC, General Provisions, is based on: 1) an error in the placement of the section, Interpretation, 2) to align local ambient air quality standards with federal standards, and 3) to align definition language of General Provisions with: a) 40 CFR Part 51.100(s)

- references only the volatile organic compound definition, b) the New Mexico Air Quality Control Act, and c) proposed rule change for Excess Emissions

- not yet approved by the Board. 2. However, upon further review, one other proposed rule change to 20.11.1 NMAC, General Provisions, not mentioned by the AQD in their Notice of Intent, and important from a community perspective occurs; the new definition for "modification" (20.1117.LL, line 51, page 3). 3. If I'm interpreting correctly, according to the new definition for "modification", it appears that a facility would not be required to seek a permit modification for significant and important operational changes that could adversely impact the surrounding community. These changes include: 1) a change in ownership, 2) an increase in the production rate, if such increase does not exceed the operating design capacity ofthe source, and 3) an increase in the hours of operation. 4. If such language currently existed in the referenced regulation, American Cement, a controversial facility because of its impact on the immediate community, would have been able to increase their hours of operation without public notification, a hearing, an informational meeting, etc. 5. This definition seems to negate the intent ofthe "air pollution" definition (20.11.1.7.F, line 1, page 2) which directly references public welfare, reasonable use of property, and human health. How can a facility extend their hours of operation without impacting public welfare or public health? 6. Rather than decreasing the public's awareness of changes in afacility's operation that may directly impact them with definitions such as "modification", why not increase the public's awareness? 7. Finally, I am also concerned that many of the concepts suggested by the Air Quality Control Board's Environmental Justice Task Force, such as sensitive populations, do not appear within the proposed, General Provisions, even though this proposed rule change provides an opportunity for their insertion within the "Definitions" section.

Notes: 1) Increased production rates lead to increased emissions? 2) State's regulation (20.2.72, Construction Permits) uses "modification" definition. 3) Two definitions for "malfunction", one at line 43, page 2 and another at line 47, page 3. 4) Insert state's preamble language (20.23.108, AmbientAir QualityStandards) into City's rule, 20.11.8.

1

# ATTACHMENT E

Attachment E is a copy ofthe Hearing Record Transcript forthe August 

### 12. 2009 hearing.

r---' -i (,-- ?=u' r-c', n -I CD Z 

# - " 1 l 

### Cl

### BEFORE THE ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY BOARD

IN THE MATTER OF THE: PETITION TO AMEND 20.11.1 NMAC, GENERAL PROVISIONS, AND 20.11.8 NMAC, AMBIENT AIR QUALITY STANDARDS, AND SUBMIT AMENDMENTS TO EPA AS A REVISION TO THE STATE IMPLEMENTATION PLAN (SIP).

(:: . " C:l

I' 'I 

### HEARING AND MEETING BEFORE AIR QUALITY CONTROL BOAED

BE IT REMEMBERED that on the 12th day of August, 2009, this matter came on for hearing before BILL GRANTHAM, Hearing Officer, at the Vincent E. Griego Chambers of the Albuquerque-Bernalillo County Government Center, 400 Marquette Avenue, Northwest, Albuquerque, New Mexico, at the hour of 5:30 p.m. 1

...**~:='** -, I c. ;;,J 

## ,

KATHY TOWNSEND COURT REPORTERS 505-243-5018 ; ;

'.... 

## {"n '0

### 1 A P PEA RAN C E S 2 For the Albuquerque-Bernalillo County Air Quality Control Board: 

### 2

3 

### 4 5 6 

### MR. JENS DEICHMANN, Chair DR. MARGARET MENACHE, Vice Chair MR. JACK SULLIVAN, City MR. JIM BRINKMAN, County MR. ARTHUR SHARPE, City MR. LOUIS PACIAS, BCPC Liaison 7 The Hearing Officer: 8 MR. BILL GRANTHAM 9 For the City of Albuquerque: 10 MS. ADELIA KEARNY DEPUTY CITY ATTORNEY 11 One Civic Plaza, Northwest Albuquerque, NM 87102 12 (505) 768-4530 akearny@cabq.gov 13 

### For the Environmental Health Department: 14 15 16 17 

### 18 19 20 21 

### 22 23 24 25 MR. NEAL T. BUTT Environmental Health Department One Civic Plaza, NW Albuquerque, NM 87102 (505) 768-2660 nbutt@cabq.gov

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 2 NEAL BUTT I N D E X PAGE 3

3 

### 4 Direct Testimony Examination by the Board 8 

### 11 5 ISREAL TAVAREZ 6 

### Direct Testimony 17 

### 7 KITTY RICHARDS

. 8 

### Direct Testimony 

### 21 9 KYLE SILFER 10 Direct Testimony 

### 47 11 ROBERT MAH 

### 12 Direct Testimony 52 13 DARIO ROCHA 14 15 16 17 

### 18 19 20 

### 21 22 23 24 25 Direct Testimony Monthly Meeting

KATHY TOWNSEND COURT REPORTERS 505-243-5018 56 65

### 1 E X H I BIT S 2 MARKED/ADMITTED 3 AQD EXHIBIT: 

### 4

4 5 

### 6 7 

### 8 9 10 11 12 13 14 15 16 1. Petition to Amend filed on May 22, 2009 1a. Public Review Draft Showing Proposed Amendments to 20.11.1 NMAC, General Provisions lb. Public Review Draft Showing Proposed Amendments to 20.11.8 NMAC, Ambient Air Quality Standards 2. 8/3/05 Federal Register Notice 3. 10/17/06 Federal Register Notice 4. 3/27/08 Federal Register Notice 5. 11/12/08 Federal Register Notice 6a. Public Notice of Hearing, Albuquerque Journal 6b. Public Notice of Hearing, New Mexico Register 6c. Notice of Availability of the Public Review Draft 10

10

10 10 10 10 10

10

10

10 17 18 19 7 . 8 . Comments Received from EPA Direct Testimony and PowerPoint Slides 10 10

20 21 22 9. Draft Agenda, Air Quality Control Board, for August 12, 2009 10. Staff's Proposed Floor Amendments for 20.11.1 NMAC 10

10

23 BERNALILLO COUNTY EXHIBIT: 24 25 

### A. Public Comment by Kitty Richards

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### MR. GRANTHAM: Good evening. I will now call 5



### 2 the hearing into session. This public hearing is being 3 held on August 12th, 2009, in the Vincent E. Griego 4 Chambers of the Albuquerque-Bernalillo Government 5 Center in Albuquerque, New Mexico, and the time is 5:31 6 

### p.m. 7 And can people hear me in the back? 8 This is a hearing of the 9 Albuquerque-Bernalillo County Air Quality Control Board 10 to consider the proposal to amend 20.11.1 NMAC, General 11 Provisions, and 20.11.8 NMAC, Ambient Air Quality 12 Standards, and submit the amendments to the EPA as an 13 update to the Title V Program. 14 My name is Bill Grantham. I 

### am an attorney, 15 and I advise the Air Board, but I am not a member of 16 

### the Board. I have been authorized by the Air Board to 17 conduct this hearing. 18 The members present at this public hearing 19 are: Chairman Jim Deichmann, Vice Chair Dr. Margaret 20 Menache, Mr. James Brinkman, Mr. Jack Sullivan, and Art 21 Sharpe, Mr. Art Sharpe. And if any others come, I 22 will announce their presence when they come. 23 Anyone desiring a transcript of this hearing 24 can obtain one at cost from the Kathy Townsend Court 25 Reporting firm.

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### Air Board hearings do not follow the rules of 6

2 

### evidence as used in a court of law. However, it is 3 important to remember the Board must make its decision 4 based on sworn testimony and evidence admitted at this 5 hearing and that the sworn testimony will become part 6 of the hearing record. 7 After the hearing closes tonight, the Air 8 Board is expected to hold its regular monthly meeting. 9 And as an agenda item at the hearing, the Board is 10 expected to consider whether to adopt the proposal that 11 is the subject of this hearing. 12 In making its regulations, in accordance with 13 the New Mexico Air Quality Control Act Section 14 74-2-5(E), the Board shall give weight it deems 15 appropriate to all facts and circumstances, including, 16 but not limited to, one, the character and degree of 17 injury to or interference with health, welfare, 18 visibility, and property; and, two, the public 19 interest, including the social and economic value of 20 the sources and those subject to air contaminants. 21 We will begin the hearing with the testimony 22 of the proponent, the Air Quality Division of the 23 Albuquerque Environmental Department. And there being 24 no other interested parties that have entered an 25 appearance, we will then proceed to pUblic comment from

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 anyone who wishes to give them. 2 If you want to testify or give comments at 3 this hearing and have not signed up, please do so at 4 this time and please sign in with the hearing clerk, 5 Ms. Janice Amend, who is at the table. 6 Everyone who wishes to testify will be sworn 7 in by the court reporter before giving testimony and 8 must identify him or herself for the record. Each 9 witness must state his or her name, address, if they 10 represent someone or an organization and who that 11 person or organization is. 12 After each witness has testified, the Air 13 Board members and I may question the witness. After 14 the Air Board and I have had an opportunity to ask the 15 witness questions, I will allow any person present to 16 ask the witness questions; however, those questions 17 must be related to the testimony just given by that 18 witness. 19 And, if necessary, I will limit testimony 20 that is irrelevant or repetitive, and I will also rule 21 on evidence or exhibits proffered for admission and any 22 motions or objections made. 23 Before we proceed with this hearing, would 24 everyone who is present please sign the attendance 25 sign-in sheet, whether or not you want to testify, and

KATHY TOWNSEND COURT REPORTERS 

### 505-243-5018 7

### 1 that sheet is in the back of the room. 8

2 

### Okay. We will proceed with the hearing with 3 first the testimony from the Air Quality Division of 4 the City of Albuquerque. 5 You may begin. 6 NEAL BUTT 7 after having been first duly sworn under oath, 8 testified as follows: 9 DIRECT TESTIMONY 10 MR. BUTT: Good evening, Mr. Hearing Officer, 11 Chairman Deichmann, Members of the Board. My name is 12 Neal Butt. I work in the Control Strategies Section of 13 the Air Quality Division. 14 I would like to present for your 15 consideration proposed amendments to 20.11.1 NMAC, 16 General Provisions, and 20.11.8 NMAC, Ambient Air 17 Quality Standards. 18 I first would like to review the exhibits and 19 then I will proceed with the rest of my presentation. 20 AQD Exhibit 1 is the Petition to Amend filed on May 21 22nd, 2009; AQD Exhibit la is the Public Review Draft 22 which is attached to AQD Exhibit 1 showing proposed 23 amendments to 20.11.1 NMAC, General Provisions; AQD 24 Exhibit Ib is the Public Review Draft of 20.11.8 NMAC, 25 also attached to AQD Exhibit 1, showing our proposed

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 amendment to the Ambient Air Quality Standards; AQD 2 Exhibit 2 is the August 3rd, 2005, Federal Register 3 Notice which revoked the one-hour ambient air quality 4 standard for ozone; AQD Exhibit 3 is the October 17th, 5 2006, Federal Register Notice which stipulates changes 6 made to the Federal Ambient Air Quality Standards for 7 PM 2.5 or PM 50; AQD Exhibit 4 is the March 27th, 2008, 8 Federal Register Notice which stipulates changes made 9 to the federal ambient air quality standard for ozone, 10 eight-hour average; AQD Exhibit 5 is the November 12, 11 2008, Federal Register Notice which stipulates changes 12 made to the federal ambient air quality standard for 13 lead; AQD Exhibits 6a, 6b, and 6c are the public 14 notices of hearing, including the legal advertisement 15 of this hearing in the Albuquerque Journal and the New 16 Mexico Register, as well as the notice of availability 17 of the Public Review Draft which was sent to the Air 18 Quality Announce ListServe, as well as a list of those 19 individuals' e-mail addresses to which that ListServe 20 serves; AQD Exhibit 7 contains the comments received 21 from the Environmental Protection Agency; AQD Exhibit 8 22 is my testimony, along with my slides; AQD Exhibit 9 is 23 the Draft Agenda for tonight's meeting; AQD Exhibit 10 24 are the Staff's Proposed Floor Amendments, and I would 25 like to move these exhibits into the record, please.

KATHY TOWNSEND COURT REPORTERS 505-243-5018 91 

### MR. GRANTHAM: Any objections from the 10

2 Board? Hearing none, Exhibits 1 through 10 are 3 admitted. 4 (AQD Exhibits 1 through 10 admitted.) 5 

### MR. BUTT: Thank you. The reasons for these 6 amendments are as follows: Number one, the currently 7 effective version of 20.11.1 NMAC, General Provisions, 8 contains an error. Section 20.11.1.14 NMAC, entitled 9 "Interpretation," belongs at 20.11.8.14 NMAC but was 10 left in 20.11.1 NMAC by mistake when these two rules 11 were amended in 2004. The proposed amendment deletes 12 this section from Part 1. 13 Number two, the proposed amendments will 14 align definition language codified at 20.11.1.7 NMAC 15 with definition language in 40 CFR Part 51.100(s); also 16 with the New Mexico Air Quality Control Act and the 17 Division's proposed 20.11.49 NMAC for excess 18 emissions. 19 Number three, the proposed amendments will 20 align local ambient air quality standards codified at 21 20.11.8.13 NMAC with federal standards; and number 22 four, the proposed amendment will correct style and 23 formatting. 24 Therefore, the Environmental Health 25 Department of the City of Albuquerque, by and through

KATHY 'TOWNSEND COURT REPORTERS 505-243-5018

### 1 the Air Quality Division, asks the 2 Albuquerque-Bernalillo County Air Quality Control Board 3 to adopt these amendments to 20.11.1 NMAC, General 4 Provisions, and 20.11.8 NMAC, Ambient Air Quality 5 Standards, and submit these amendments to EPA as a 6 revision to the State Implementation Plan, or SIP. 7 That concludes my testimony, and I stand for 8 questions. 11

9 

### MR. GRANTHAM: Thank you, Mr. Butt. 10 Are there questions from the Board? 11 Dr. Menache? 12 EXAMINATION 13 BY THE BOARD: 14 DR. MENACHE: Thank you, Mr. Butt. I have a 15 question, in general, concerning both of the 16 amendments, which is was there any public comment? 17 

### MR. BUTT: Mr. Hearing Officer, Chairman 18 Deichmann, Dr. Menache, I have not received any public 19 comment other than EPA's comments. 20 DR. MENACHE: And in your correspondence with 21 the Environmental Protection Agency, it responded that 22 they have reviewed Part 8, but not Part 1. 23 Were both parts submitted to them? 24 MR. BUTT: Yes. They are reviewed by 25 separate sections. Part 8 is reviewed by the planning

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 section at EPA in Dallas; and Part 1 is reviewed by the 2 permitting section in Dallas, and they did not issue 3 any comments one way or the other. 12

4 DR. MENACHE: In Part 82, which was the 5 rulemaking procedures, the definitions included a 6 definition of "Environmental Justice." 7 

### Is it possible to incorporate that in this 8 Part 1 here, as well? 9 

### MR. BUTT: It's up to you. It's possible. 10 Generally, what the framework of the regulations is is 11 that Part 1 is sort of a dictionary. It's kind of 12 obsolete, in my opinion, but it could be put in there, 13 and then each rule has its super specific terminology 14 that usually only applies to that rule. 15 And so you could put that in there if it 16 applied to maybe more than one reg, but if it only 17 applies within a certain reg, then it probably would be 18 more appropriate to leave it in that reg, but it's your 19

-- it's up to you. 20 DR. MENACHE: May I ask that we incorporate 21 that? I was asking the wrong question at the moment. 22 Thank you. 23 24 scope. MR. BUTT: And, also, if it falls within the I believe you have to ask your attorney about 25 that.

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### 2 now? 3 

### 4 MR. GRANTHAM: So you want me to address that

DR. MENACHE: Please. MR. GRANTHAM: Well, I guess my first 13

5 impression is that I am stepping out of my 6 hearing-officer role into counse1-to-the-Board role, 7 that such an amendment would be beyond the scope of the 8 public notice that was given on this proposed 9 ru1emaking. 10 It's not a logical outgrowth of any of the 11 changes that have been proposed, which were, for the 12 most part, pretty technical corrections. So I guess I 13 could say that it would be subject to challenge on that 14 basis. 15 Whether anyone would challenge it is another 16 question, but perhaps we could take that up further 17 during the deliberations. 18 19 DR. MENACHE: Okay. MR. GRANTHAM: Dr. Menache, did you have 20 additional questions? 21 22 DR. MENACHE: No. MR. GRANTHAM: Questions from other members 23 of the Board? Mr. Butt, I had a question or two. 24 The definitions of VOC in the amendments, 25 those seem to be quite extensive.

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 Would you identify which of those other 2 sources of law that you cited is the source for these 3 amendments; in other words, what's the driver for 4 changing the definition for VOCs, volatile organic 5 compounds? 14



### 6 MR. BUTT: Mr. Hearing Officer, that's 7 verbatim language from 40 CFR 51.100(s), and in the 8 Public Review Drafts, and, als6, in the EPA Review 9 Draft and the Stakeholder Review Draft, the last three 10 drafts of this rule, after all of my proposed changes, 11 either at the beginning of the new language or at the 12 tail end of it, I have put in braces where the impetus 13 for that change came from

.. 14 And that won't be found in the final rule, 15 that's just to help people who are interested in the 16 rule. 17 MR. GRANTHAM: Could I see that now? Thank 18 you. And in regard to the interpretation provision, 19 could you explain the nature of the mistake? 20 It seems like the interpretation provision 21 would be appropriate in the general section in Part 1. 22 MR. BUTT: What happened was interpretation 23 goes with the ambient air quality standards. They go 24 together. They are like twins. The interpretation 25 addresses those ambient air quality standards.

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### And in '04, I believe it was, when we created 15

2 the brand new Part 8, we excised all the ambient air 3 quality standards out of one, we moved them into a 4 brand new rule, or Part 8, and interpretation addresses 5 how you interpret the ambient air quality standards. 6 And it should have gone along with the table 7 moved over into the new Part 8, but somehow, it got 8 left behind as the straggler, but it doesn't have 9 anything to do strictly with the dictionary-type 10 function of Part 1. 11 MR. GRANTHAM: Okay. So that interpretation 12 is meant to apply only to the National Ambient Air 13 Quality Standards? 14 MR. BUTT: Right, or any air quality 15 emissions. As it says there, "anything that limits, 16 controls, or regulates the emissions of a particular 17 air contaminant." And it talks about stringency. 18 And now, in the current form of Part 1, there 19 are no strictures about air quality standards. They 20 are all in Part 8 now. 21 MR. GRANTHAM: Thank you. I have no more 22 questions. At this time, we will ask if there are any 23 persons here who have -- first, we will have additional 24 questions from the Board. 25 Any members of the audience who would like to

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 ask questions of the witness? 2 Dr. Menache? 16

3 

### DR. MENACHE: I have one more question. 4 On page three, the definition for 5 "Modification" excludes changes due to increased hours 6 of operation or an increased production rate. 7 How would that sort of play out if a facility 8 -- if they increased their hours of operation or the 9 production rate, then their emissions would go up. 10 So where does that get captured now in terms 11 of comments? It's on page three -- sorry, on page 12 four. The section starts on page three, and the exact 13 quote I am referring to

-- the exact text I am 14 referring to begins on line four. It's a little 15 subsection 

### "4." 16 17 

### MR. BUTT: Okay. DR. MENACHE: The text, itself, is the 18 definition of "Modification," and under it, it says 19 it talks about what constitutes the modification, but 20 modification does not include a change in ownership, 21 routine maintenance, installation, or, unless 22 previously limited, an increase in production rate and 23 so on. 24 MR. BUTT: Mr. Hearing Officer, Chairman 25 Deichmann, Dr. Menache, that language is taken verbatim

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 from the Air Quality Control Act, but if you would like 2 an interpretation of that, I would have to defer to the 3 technical panel, which I am sure they would be more 4 than happy to, or somebody in the Division. 17

5 

### DR. MENACHE: Please. 6 

### 7 8 9 10 ISREAL TAVAREZ after having been first duly sworn under oath,

testified as follows: DIRECT TESTIMONY MR. TAVAREZ: Mr. Hearing Officer, Members of 11 the Board, Dr. Menache, if you wouldn't mind repeating 12 your question so I can make sure I understand it 13 clearly. 14 DR. MENACHE: On page three at the bottom, 15 where the definition for "Modification" begins, an 16 exclusion is if a facility has an increase in the 17 production rate or an increase in the hours of 18 operation or use of an alternative fuel. So that's at 19 the top of page four, lines four through ten. 20 So my question is it seems that there would 21 be an increase in emissions if somebody increases their 22 production rate or hours of operation, and I wasn't 23 sure where that gets captured if it's not considered a 24 modification. 25 MR. TAVAREZ: Let me see if I can explain

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 this clearly. One of the scenarios that comes to mind 2 -- there are different scenarios that occur in that 3 section, but dealing with the first part, an increase 4 in production rate, such increase does not exceed the 5 operating design capacity of the source. 6 Typically, air quality permits are issued at 7 the production capacity or maximum capacity of a piece 18

8 

### of equipment. So if they were going to increase, 9 typically, their permit would already cover that if 10 they are permitted

-- say the capacity of the equipment 11 is 100, whatever number you want to assign to that, and 12 if they typically have been operating at, say, 90, they 13 decide to operate up to 100 and it's allowed under the 14 permit, that's typically the approach that's taken in 15 writing air quality permits, is most businesses will 16 make the decision to permit up to that level, and we 17 are using a generic example of 100 or whatever that 18 unit may be. 19 

### 20 DR. MENACHE: Right. MR. TAVAREZ: So that captures -- that's 21 where that would be allowed. 22 DR. MENACHE: So this would be a change in 23 operating parameters, but that falls within the 24 original permit? 25 MR. TAVAREZ: Well, it's allowed under the

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### 1 permit, essentially. 19

2 3 DR. MENACHE: Okay. Thank you. MR. GRANTHAM: Mr. Sullivan? 

### 4 MR. SULLIVAN: In Part 1, page seven, there 5 are definitions of VOCs, quad F, FFFF, there is a 6 paragraph -- paragraph six on page seven, it talks 7 about "determining compliance with California's aerosol 8 coatings reactivity-based regulation." 9 Where are we bound by California's 10 regulations? 11 MR. BUTT: Member Sullivan, all that language 12 is verbatim from the Code of Federal Regs. And so as a 13 general delegation of authority being down to us, we 14 are incorporating all language that they define VOCs, 15 and how that strictly affects us, I would defer to Mr. 16 Tavarez. 17 MR. TAVAREZ: Well, Mr. Hearing Officer, 18 Members of the Board, Member Sullivan, it's a common 19 approach that's taken within programs to refer to 20 statutes

-- or standards and approaches that the State 21 of California takes in defining, you know, different 22 parameters; in this case, an element of the volatile 23 organic compounds activity, and that's just

-- I guess 24 indirectly, it bounds the City of Albuquerque to the 25 California regulations, but it's not an uncommon

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### approach, you know, that I have seen in air quality 2 since, in many cases, the State of California is far 3 advanced as far as air quality programs are concerned 4 with their regulatory approaches. 20

5 

### MR. SULLIVAN: Okay. Is there anything in 6 this Part 1 that is different than the EPA general 7 provisions section? 8 

### MR. BUTT: Member Sullivan, I couldn't tell 9 you where all of the definitions came from because I 10 wasn't here when they were all originated. Many of 11 

### them come verbatim either from the Air Quality Control 12 Act or from the CFR or some from the State's rules, but 13 it's a genesis that's going back to 1977; so when the 14 first SIP was originally developed by the Board. 15 And then as we have gone along, it's been 16 

### tinkered with and amended as we have gone along. So 17 there have been a number of changes. The ones that I 18 particularly have read for this current amendment will 19 all have some explanation of where each one came from 20 in the braces. As far as every single definition, I 21 couldn't say without researching it. 22 MR. SULLIVAN: My thought there was that if 23 there is another regulation and it's verbatim, why 24 don't we just cite the other regulation? But that's 25 just me.

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### MR. BUTT: Member Sullivan, well, it's a 21

2 hodgepodge. This is not some of our rules, like 3 1661, those almost could be xeroxed right out of the 4 CFR, and that's done for a specific reason, but for 5 Part 1, it's been culled together from all sorts of 6 sources. 7 So there is no CFR that we could go straight 8 to the CFR and then it's exactly the same. This is 9 part Air Quality Control Act, part CFR, part New Mexico 10 reg, and possibly even part Division language. 11 

### 12 Thank you. 13 MR. SULLIVAN: Okay. That's very good.

MR. GRANTHAM: Questions from other members 14 of the Board? 15 Do we have any public comment? 16 Anybody signed up for public comment? 17 KITTY RICHARDS 18 after having been first duly sworn under oath, 19 testified as follows: 20 DIRECT TESTIMONY 21 MS. RICHARDS: Good evening, Members of the 22 Board. I have several comments to make, and one 23 actually goes directly to the question that Board 24 Member Menache had asked. 25 I'm going to read a statement, and I was not

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### 1 clear, I can just comment right now on what Mr. Tavarez 2 -- his response to Dr. Menache's questions? This is 3 regarding the Title 20, Chapter 11, Part 1, General 4 Provisions, piece of this hearing, and then I will also 5 comment on the ambient air quality standards. 6 Based on their Notice of Intent, the City of 7 Albuquerque, Air Quality Division, states that their 8 rationale for the proposed rule changes to 20.11.1 9 NMAC, General Provisions, is based on: One, an error 10 in the placement of the section "Interpretation"; two, 11 to align local ambient air quality standards with 12 federal standards; and, three, to align definition 13 language of "General Provisions" with: A, 40 CFR, Part 14 51, Section 100(s), which references only the volatile 15 organic compound definition; b, the New Mexico Air 16 Quality Control Act, which I looked through that Act, 17 and the only thing I could find there as far as 18 referencing general provisions was their definitions 19 section; and, c, proposed rule changes for "Excess 20 Emissions," which is a proposed rule change that has 21 not yet been decided on or approved by the Board. 22 However, upon further review, one other 23 proposed rule change to 20.11.1 NMAC, General 24 Provisions, not mentioned by the Air Quality Division 25 in their Notice of Intent, and very important from a

KATHY TOWNSEND COURT REPORTERS 505-243-5018 22

### 1 community perspective, occurs, and this is the 2 definition for "Modification." This is on line 51, 3 page three. 4 If I am interpreting this correctly, and I am 5 still a little bit confused based on Mr. 

### Tavarez' 6 response, according to the new definition for 7 "Modification," it appears that a facility would not 8 be required to seek a permit modification for 9 significant and important operational changes that 10 could adversely impact the surrounding community. 11 These changes include a change in ownership, 12 which I think is important if you have got somebody who 13 has taken over ownership of a facility and who has 14 violations in the past, that might compare; an increase 15 in production rate, and, again, it says "If 

### such 16 increase does not exceed the operating design capacity 17 of the source." 23

18 Mr. 

### Tavarez talked about operational capacity 19 and production rates. The models that happen occur on 20 a presumed production or efficiency rate. If those 21 efficiency rates are incorrect, say it's really not 100 22 percent in the revised and it's now 90, the permits are 23 based on that efficiency of that unit at the time the 24 permit is approved. 25 And, three, if such increase does not

-- or,

KATHY TOWNSEND COURT REPORTERS 

### 505-243-50181 

### three, an increase in the hours of operation. If 

### such 24

2 language currently existed in the referenced regulation 3

-- again, this is my interpretation, and perhaps that 4 piece needs to be written more directly or more 5 

### understandably American Cement, which is a 6 controversial facility because of its impact on the 7 immediate community, would have been able to increase 8 their hours of operation without public notification, a 9 hearing, an informational meeting or anything else. 10 This definition seems to negate the intent of 11 the air pollution definition found in line one, page 12 two, 20.ll.l.7.F, which directly references public 13 welfare, reasonable use of property, and human health. 14 How can a facility extend their hours of operation 15 without impacting public welfare or public health? 16 Rather than decreasing the public's awareness 17 of a change in the facility's operation that may 18 directly impact them, with definitions such as 19 "Modification," why not increase the public's 20 awareness of what's happening around them? 21 Finally, I believe that this section, the 22 General Provisions section, is sort of the overarching 23 section that really looks at definitions, and I know 24 that Board Member Menache talked about environmental 25 justice.

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### 1 I want to say that the Environmental Justice 2 Task Force came up with several recommendations for 3 definitions and that this is probably the optimal place 4 to put this. One was "sensitive populations," among 5 others. 6 I also want to just point out that when I did 7 look in the State's air quality regulations, the only 8 place I found "Modification," which uses the same 9 definition as you have in the general provisions of 10 this regulation, was under "Construction Permits," and 11 in that case, these reporting sources, there was a 12 definition for "Construction." 13 I also wanted to point out that there are two 14 separate definitions in this regulation, General 15 Provisions, for "Malfunction." One is found on line 16 43, page two, and another is found on page 47 -- or 

### 17 line 47, page three. 18 I also would want to ask that the Air Quality 19 Board consider insertion of the preamble language that 20 is found in the State's Air Quality Standards at 21 20.2.3.108 into the City's proposed rule for ambient 22 air quality standards. 23 Thank you for consideration of this. 25

24 25 MR. GRANTHAM: Thank you, Ms. Richards. Are there questions from the Board for this

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### 1 witness? 2 Questions from anyone in the audience for 3 this witness? 

### 26

4 5 6 7 8 

### MR. SULLIVAN: I have got a question. MR. GRANTHAM: Mr. Sullivan? MR. SULLIVAN: The last item MS. RICHARDS: Can I get my statement again? MR. SULLIVAN: I just was checking on this. 9 You had said that there were two definitions 10 of malfunction. 11 

### 12 MS. RICHARDS: Yes, that's correct. MR. SULLIVAN: And is this

-- just what did 13 you say about that? 14 MS. RICHARDS: Well, there is one definition 15 which is under

-- it's Section 

### "L," it's line 43 on 16 page two, and it's called "Breakdown, malfunction or 17 upset." 18 19 MR. SULLIVAN: Okay. MS. RICHARDS: And so perhaps "malfunction" 20 needs to be taken out of that. 21 

### 22 23 MR. SULLIVAN: Okay. Thank you. MR. GRANTHAM: 

### Mr. Brinkman? MR. BRINKMAN: Ms. Richards, you had 24 mentioned that in the state regs, the only place this 25 definition of "Modification" shows up is in

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### 1 "Construction Permitting." 2 Are there other definitions dissimilar for 3 "Modification" in the state regs? 27

4 

### MS. RICHARDS: When I looked, I looked at the 5 "Operating Permits" section and the "Construction 6 Permits" section, and I couldn't find any other 7 definition for "Modification." So I am not sure if 8 modifications actually apply for these other types of 9 permitting at the State level. 10 MR. GRANTHAM: Thank you very much for your 11 comments, Ms. Richards. 12 Do we have anyone else signed up in the 13 audience to give comments? 14 Hearing none, I will ask the Board if there 15 are any objections to the hearing being closed at this 16 point. 17 

### MR. BUTT: Mr. Hearing Officer, can I address 18 her comments? 19 

### 20 that. 21 

### MR. DEICHMANN: Yes, I'd like you to do

MR. BUTT: Okay. Mr. Hearing Officer, 22 Chairman Deichmann

-- 23 MR. GRANTHAM: We will hear Mr. Butt's 24 response and then we will take comment from you, sir. 25 MR. BUTT: Okay. I see three issues, if I

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### can try and keep them straight in my mind. First is 28

2 the assertion that my NOI does not cover the scope of 3 the Division's proposed changes in regard to the 4 definition of "Modification," and as Ms. Richards 5 stated, in my NOI, part of the purpose of these 6 proposed changes is to bring your rule into alignment 7 with the New Mexico Air Quality Control Act. 8 And in your binders that you have that have 9 the rules outside your rules that also govern our 10 proceedings, you can look on page A2 of the New Mexico 11 Air Quality Control Act and you'll find the definition 12 of "Modification," which should be verbatim, because 13 that was my intent, and if there is some punctuation or 14 a word that's not exactly out of the New Mexico Air 15 Quality Control Act, then I'd be glad to change it. 16 MR. GRANTHAM: I'm sorry, Mr. Butt, could you 17 give that citation again? 18 MR. BUTT: It's page A2 in the New Mexico Air 19 Quality Control Act. It's in your binder. 20 Do you want the statutory definition also? 21 MR. GRANTHAM: Just the section. 22 MR. BUTT: It's 74-2-2 entitled 23 "Definitions," paragraph "M," "Modification." 24 MR. GRANTHAM: Okay. 25 MR. BUTT: And then the second issue I see is

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### 1 some kind of push-back on wanting to incorporate 2 language that is not already found in some statute. 3 The language that we would like to propose to 4 incorporate into Part 1 that will possibly be in our 5 excess emissions rule is language that the Division is 6 comfortable with and the Environmental Protection 7 Agency is comfortable with, and the Division has 8 proposed to have that put in Part 1 to be more 9 expedient, and we think it's valid language and 10 important language to have in Part 1, and we don't feel 11 that excess emissions has to be adopted in order to 12 incorporate language. 13 We feel that any definition that we felt had 14 value and could add some import to Part 1, we 15 incorporate. As was alluded to earlier, Part 1 is a 16 hodgepodge. 17 And so any time we find something that we 18 think would make it easier to understand all of the 19 rules, we like to put it in Part 1, and it's the 20 Division's opinion that definitions that refer to 21 excess emissions would be heuristic, but that's up to 22 your discretion. 23 Then the third prong is the interpretation of 24 the New Mexico Air Quality Control Act, which I am not 29

25 qualified to do. So I defer that to either the City

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 Attorney or the Division Manager. 30

2 MR. GRANTHAM: Thank you, Mr. Butt. 3 Additional questions from the Board for Mr. 4 Butt? 5 Mr. Sullivan? 6 MR. SULLIVAN: My question would be does 7 anyone know if change of ownership is addressed 8 somewhere else? 9 I mean, is there a provision that discusses 10 change of ownership, a similar change in operating 11 hours in the permitting system or the change 12 reporting? 13 It would seem to me that, you know, that -- 14 it could be just a matter of semantics here, you have a 15 change in ownership, and they are saying that it's not 16 considered a modification, it's considered a change in 17 ownership. So the rules about notification of change 18 of ownership may be covered somewhere else in the 19 permitting. 20 Similarly, for an increase in hours, that's 21 not

-- may not be called a modification, according to 22 this definition of "Modification," but that does not 23 necessarily mean that the change in operating hours 24 goes unreported or has no impact on the permit. 25 Can anybody address those concerns?

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### MR. TAVAREZ: Mr. Hearing Officer, Members of 31

2 the Board, Member Sullivan, I'd like to point the Air 3 Board members to the first part of that definition, and 4 I think that's the key part. 5 I think there is some anticipation that some 6 of these scenarios can exist, not very likely, but can 7 exist in an increase in production of rates and so 8 forth, but the key trigger to modification, if you read 9 the first part of the definition, is "Modification 10 means any physical change in or change in the method of 11 operation of a source that results in an increase in 12 potential emission rate of any regulated air 13 contaminant emitted by the stationary source." 14 I think the key part of that is "that results 15 in an increase in potential emission rate." 16 Essentially, what that means, and I just refer to Ms. 17 Kitty Richards' comments and statement, is she is 18 exactly right, it's part of an air quality permit. 19 The impact of the pollution on the immediate 20 area is evaluated through air dispersion modeling, and 21 the reason that that's the trigger is that's the 22 important part from a public health standpoint. 23 If there is going to be an increase in 24 emissions, which could translate to an increase in 25 impact to the community, then that's a modification.

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### 1 Now, you know, those other kind of possible exceptions, 2 you know, I think they are spelled out, but we really 3 don't see those occurring, you know, very often, 4 because one of the key parts, especially part four, 5 subpart four, of that section, says "unless previously 6 limited by enforceable permit conditions." 32

7 That's the whole permitting process. Their 8 emissions would be limited, and it's difficult to kind 9 of

-- you know, to do some of those scenarios that are 10 described there, but I guess it's possible. 11 So that's why I think

-- this is my personal 12 assessment, that's why they are written there, but you 13 have to look at the first part of that definition, you 14 know, and that's the trigger that we evaluate when we 15 look at projects, or if a company is proposing to make 16 a change, that's the true test that we evaluate against 17 to make sure that the impact to the surrounding 18 community is not increased, because that's

-- Ms. Kitty 19 Richards is correct, that would trigger modification, 20 and rightly so; that would require public notice and 21 opportunity for the public to be involved and 22 potentially request a public information hearing on the 23 property. 24 25 MR. GRANTHAM: Mr. Sharpe? MR. SHARPE: If I am not mistaken, what Mr.

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### 1 Sullivan was asking you was does anybody know if change 2 in ownership and increased hours of operation is 3 covered someplace else? 4 Isn't that basically what you were saying, 5 Jack? 33

6 7 MR. SULLIVAN: Yes. MR. TAVAREZ: Mr. Hearing Officer, Member 8 Sharpe, Members of the Board, I apologize if I got off 9 track. I don't recall it being addressed elsewhere. 10 This is the section that addresses, you know, the 11 change in ownership. I can do a quick check if you 12 give me a few minutes to look it up. 13 MR. DEICHMANN: Mr. Hearing Officer, Mr. 14 Tavarez, a follow-up on that. I guess my first 15 statement, I think I am understanding, and see if we go 16 from there. 17 Given the realization that this language for 18 "Modification" or "Exception to Modification" is 19 already in the statute, then whether it's in the 20 regulations or not, it's not changing anything; is that 21 correct? 22 MR. TAVAREZ: Mr. Hearing Officer, Chairman 23 Deichmann, that's correct. 24 MR. DEICHMANN: Okay. So the way we have 25 been operating in the past with respect to permit

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### 1 modifications, such as the current permit application 2 that's under review by your division, that is required 3

-- that spurred a review of the whole operation 4 regardless of what the language was or was not in this 5 regulation? 6 I am sure there is a better way to put that, 7 but do you get where I am going? 8 It doesn't change anything, does it? 34



### 9 MR. TAVAREZ: Mr. Hearing Officer, Members of 10 the Board, Chairman Deichmann, that's correct. I mean, 11 that doesn't change the test that we apply against 12 projects to see whether or not they trigger further 13 modification. 14 MR. DEICHMANN: So then is the practical 15 impact of the exemption for increase in hours of 16 operation, does it only have an effect -- I have gotten 17 

### myself wrapped up in it. Right. 18 So if it doesn't change their emissions, then 19 the change of operation hours, does that trigger 20 anything under these proposed regulations? 21 So you have got a set emission rate and it's 22 permitted and you have a proposed change in hours of 23 operation, but the emission rates don't change because 24 you have better technology or maybe lower production, 25 longer hours, something like that, would this then

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### 1 cause that to change in the way you would consider a 2 permit application -- or a permit modification 3 application? 35

4 MR. TAVAREZ: Mr. Hearing Officer, Members of 5 the Board, Chairman Deichmann, I don't see that 6 scenario occurring, and I guess the reason that I say 7 that is especially with the air quality permits that 8 are issued in the program today. 9 There are, typically, you know, a number of 10 restrictions and limits that are put upon the permit. 11 Sometimes, in many cases, there is a little bit of 12 duplication that occurs. 13 You know, one example is a -- a couple 14 examples that come to mind are if we are permitting, 15 say, a boiler as part of the source, we have

-- 16 typically, at least two of the limitations that are 17 going to be put upon that boiler are the amount of fuel 18 that can be burned in a given period of time and then 19 the amount of operating hours that can be operated in a 20 given amount of time. 21 So I guess I look at those kind of 22 exceptions, that while they may be allowed under the 23 rule, the actual application of those exceptions within 24 our program would be pretty limited. 25 I understand your question. You know, there

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### 1 might be different scenarios that a company may come up 2 with, but they have to still operate within the 3 confines of the limits within that permit that is 4 required, and if it's a manufacturing process of sorts,**T~Ns** 

### then, typically, a third type of permit limit is 6 applied, and it's a production rate. 7 So that's a pretty tight

-- you know, enough 8

-- an amount of fuel to be consumed, the amount of 9 hours that it can operate, and the amount of production 10 that can come out of that activity, you know, that's a 11 pretty defined universe that they have to operate 12 within, and to try to get, you know, much out of that, 13 it's difficult. 36

14 Typically, again, what businesses will do, 15 you know, if they plan to operate, maybe -- in most 16 cases, they are going to operate half the year, they 17 will permit for closure to three-quarters of the year 18 operating hours. 19 So, typically, a business will factor in some 20 flexibility or some room to grow, so to speak, within 21 the permit so that it prevents them from having to go 22 come before the agency and request a permit 23 modification, because it's going to be a pretty 24 involved process, especially now that there is more and 25 more public scrutiny that occurs with these proposed

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### 1 air quality projects. 37



### 2 MR. GRANTHAM: Mr. Tavarez, just to take your Ns 3 boiler example, if there are no limits on the operating 4 hours of the boiler, that would mean it's allowed to 5 operate every hour of the year, is that correct? 

### 6 MR. TAVAREZ: Mr. Hearing Officer, Members of 7 the Board, that's correct. And I guess that's the 8 example that came to mind when Dr. Menache asked the 9 question earlier in the hearing, is -- now, again, the 10 review that the Air Quality Division would apply to 11 that project would assume the equipment was being 12 operated every hour of the year. 13 So that's why I was saying I guess the change 14 in method of operation, let's say, for three years, 15 that business, because of demand or just operational 16 needs, they will operate that boiler half the year, 17 well, if their permit allowed them to actually operate 18 year-round, for them to go from operating half the year 19 to year-round, it may be technically a change in method 20 of operation, but if it's already staged as a permit 21 condition for them to be operating year-round, they are 22 allowed to do that. 23 MR. GRANTHAM: Because their modeling has 24 been done on the assumption that they are operating 25 year-round, and, therefore, if they increase their

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### actual operation hours, they are still under their 2 permit limit of emissions; is that correct? 38

3 

### MR. TAVAREZ: Mr. Hearing Officer, Members of 4 the Board, that is correct. 5 

### 6 MR. GRANTHAM: Mr. Brinkman? MR. BRINKMAN: Yes. Mr. Tavarez, in the 7 permitting process, as you have stated, it usually puts 8 in what hours of operation are allowed, production 

### 9 rates, possible emission rates, where is that codified 10 if not here? 11 

### MR. TAVAREZ: Mr. Hearing Officer, Members of 12 the Board, Member Brinkman, that is captured as part of 13 the permit. The permit is actually a very detailed 14 document. In essence, it's a contract between the Air 15 Quality Division and the business, or, in some cases, 16 the government agency that's issued that permit. 17 In there, it spells out the equipment to be 18 operated, the amount of fuel, production rates. In 19 some cases, some businesses do request certain times of 20 operation, you know, from, say, 5:00 a.m. to 7:00 p.m. 21 That would be specified. 22 So those are all what we call "conditions 23 provisions" that are written to the permit; that the 24 whole idea behind writing those provisions and 25 conditions in the permit is to make what we call -- the

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### 1 phrase we use is "practically enforceable," so that an 2 inspector can go out there and verify compliance, they 3 can check records on their fuel usage, they can check 4 records on production rates, et cetera. 39

5 

### MR. BRINKMAN: What holds you to -- what 6 requires you to put those conditions in the permit? 7 Is there anything in writing that requires 8 you to put those conditions in the permit? 9 Anything where you are legally bound to put 10 those conditions in the permits? 11 MR. TAVAREZ: I think in a broad sense, what 12 we are bound by is the State Implementation Plan. As 13 air quality managers for the City of Albuquerque and 14 Bernalillo County, we are mandated to preserve and 15 protect the air quality resource and public health from 16 an air quality standpoint, and one of the more powerful 17 tools that we have and utilize for that is by issuing 18 air quality permits, and in the process of issuing an 19 air quality permit, air dispersion modeling is checked 20 to see, make sure, that the activity and the operating 21 of equipment at that facility will not result in a 22 exceedance of the Federal Ambient Air Quality Control 23 Standards and the State Ambient Air Quality Standards. 24 25 MR. GRANTHAM: Chairman Deichmann? MR. DEICHMANN: Mr. Tavarez, going back to my

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### 1 earlier question, which you answered very well, I have 2 a follow-up on that. 40

3 

### Assuming for the moment, let's say, a 4 hypothetical crusher plant and you have permit 5 conditions for that out of your standard suite of 6 emissions criteria and such standards, and you also 7 have a certain number of hours, let's say you are 8 permitted from 8:00 to 5:00, okay; now let's say that 9 under this proposed language, which, again, we 10 recognize is already in the statute, so I don't know if 11 it makes any difference or not, but for the moment, 12 let's assume that it does, that the operator, for 13 whatever reason, wants to increase hours of operation, 14 but can hold everything else in a steady state, it can 15 meet all the permit requirements, changes the hours of 16 operation, would they then be able to do that because 17 of this exemption language? 18 MR. TAVAREZ: Mr. Hearing Officer, Members of 19 the Board, Chairman Deichmann, I believe in theory, 20 yes, but, again, as I stated earlier, just the way that 21 our air quality permits are written, you know, it's 22 pretty -- their universe that they have to operate 23 under is very well-defined. 24 Take the example you used, one of the limits 25 that I know that we put in the permits were the type of

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### facility you described, would be a production rate. So 41

2 unless they were operating at a lower production rate, 3 we are going to allow up to the rate allowed in the 4 permit. So I don't see that this provision would be 5 

### MR. 

### DEICHMANN: I am assuming that the total 6 

### production per day would be the same. So it would be a 7 lower production rate over a longer period of time, and 8 I don't know why they would do that, but I am just 9 trying to understand, you know, the possible 10 scenarios. 11 And so assuming if we can assume that 12 that's technically possible, theoretically possible, 13 and they wanted to do that, then maybe there is no 14 increase in air emissions or whatever, but there would 15 certainly be ancillary impacts, such as noise, that 16 could impact the neighborhood, truck traffic and the 17 like, which we don't have any control over, as we have 18 learned repeatedly, so is that a potential undesirable 19 side effect of this, or potential -- 20 MR. 

### TAVAREZ: Mr. 

### Hearing Officer, Members of 21 the Board, Chairman Deichmann, if I am understanding 22 the explanation of your example appropriately, what you 23 are describing would require more operating hours, same 24 production rate, but that production rate would be 25 spread over more hours, which essentially results in a

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### 1 reduced production rate. 2 I think, you know, at a minimum, we would 3 have to evaluate that for the modeling, because when 4 air dispersion modeling is done, if a business 5 requests, say, 8:00 to 5:00 operating hours, that model 6 is run for 8:00 to 5:00, and that plays a factor, 7 because as the Air Board is aware, one of the key 8 inputs into their dispersion modeling is meteorological 9 data. 42

10 So, you know, conditions can vary depending lIon the time of day. So we would have to look at that, 12 and I think if they want to request that, what I would 13 envision would be a modification that would actually 14 probably tighten down their production rate because it 15 would allow them to extend their hours, but now they 16 are going to have to operate at a lower production 17 rate, because if you didn't reissue that permit with 18 the lower production rate, there wouldn't be anything 19 to prevent them from operating at the higher production 20 rate, but just kind of say with a wink, "We 

### are going 21 to operate at a lower production rate, but we want to 22 extend our operating hours." 23 Does that makes sense? 24 MR. DEICHMANN: So maybe if a particular 25 driver here is the model, itself, right, because of the

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### 1 modeling assumptions that went into the original 2 permit, that would change and that would drive a 3 permitting action or modification regardless of this 4 exemption? 43

5 

### MR. TAVAREZ: That's a driving force in the 6 decision, but, really, technically, if you look at the 7 first part of the definition, they would be increasing 8 their potential emission rate, because without -- just 9 by the fact that they are extending their hours, their 10 overall, you know, emissions, you know, would go up, 11 and then the fact that the modeling hasn't adequately 12 been done to cover that scenario, that would be a big 13 concern to the Air Quality Division. 14 So we would require the applicant to come in 15 and basically reapply so that we could establish a 16 permit limit on their production rate that would result 17 in kind of extending the total production rate but over 18 more hours. 19 20 21 be sworn. 22 MR. DEICHMANN: Thank you. MR. GRANTHAM: You need to say your name and

MS. KEARNY: Adelia, A-d-e-l-i-a, Kearny, 23 K-e-a-r-n-y, Deputy City Attorney. A simple way of 24 looking at this is if a facility applied for a permit 25 and, at the time they applied, they asked to operate

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### 24/7, 365 days, and they did the public notice based on 2 that, they did the modeling based on that, and the 3 

### permit said that, and then, for business reasons or 4 whatever, they chose to operate 7:00 a.m. to 7:00 p.m. 5 

### for a long time, and then they upped the hours of 6 operation and everything else remained the same, they 7 would not have to get a modification, but if their 8 permit said they could only operate 7:00 to 7:00 and 

### 9 they changed their hours of operation, then the 10 Division does a case-by-case study to determine if it 11 

### triggered that important part of the definition, which 12 is potential to emit. 13 If that changes the potential to emit, then 14 they have to go through a complete permitting action 15 again, notice, public input, modeling, decision, and so 16 on. 44

17 18 MR. GRANTHAM: Thank you. Dr. Menache, you had a question earlier? 19 DR. MENACHE: Just to sort of follow up on 20 that, if the facility reads the language and decides 21 that what they are doing doesn't constitute a 22 modification, how do you find out about it? 23 MR. TAVAREZ: Mr. Hearing Officer, Members of 24 the Board, Dr. Menache, the way we find out about that 25 is through periodic inspections that take place of a

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 facility. Because as I stated earlier, the whole 2 purpose of the air quality permit is to establish, you 3 know, limits with practically enforceable conditions. 4 And, essentially, what that means is that 5 there have to be records and indicators that are being 6 kept track of by the business that an inspector can go 7 out and review and inspect to ensure that, you know, 8**th~** 

### company is operating within the parameters of the 9 air quality permit. 45

10 DR. MENACHE: And their permit will say 11 something like you can operate from 7:00 a.m. to 7:00 12 p.m. so that that's sort of enforceable, you have a 13 real specific criterion? 14 MR. TAVAREZ: Matter of fact, with the 15 American Cement facility, there was a citizen report 16 that came in about two weeks ago, and the citizen 17 believed that American Cement was operating outside of 18 their operating hours. 19 

### I believe I can't remember the exact time, 20 but it was about 30 minutes or so after the activity 21 that this individual was observing was occurring, about 22 30 minutes after the

-- outside of the

-- I think until 23 4:30 or 5:00. And so this individual observed it about 24 5:30, say. 25 The inspectors went out there and evaluated

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 the records, and, basically, what they determined, the 2 permit activity wasn't occurring. There was just some 3 truck traffic that had been going through the facility, 4 but the way they determined, the inspectors determined, 5 that is they looked at the records that the company is 6 required to keep that shows that they are keeping track 7 of their activities and relate that to the air quality 8 emissions and air quality permit. 46



### 9 MS. KEARNY: And, Mr. Hearing Officer, and, 10 Mr. Chairman, Members of the Board, Adelia Kearny, I 11 would say from experience that we have brought 12 enforcement actions sort of working outside, if they 13 are working outside of the permitted hours, and one of 14 the ways that that can be established is, for instance, 15 product is money, if some of the product is weighed in 16 and weighed out, one of the things they keep quite 17 accurately is their scale receipts. 18 And so that's another way the Air Division 19 staff, when they do their inspections, cross-checks 20 hours of operation, the scale receipts, and a number of 21 other sources to determine when they are actually 22 operating. 23 MR. GRANTHAM: Thank you. We had a member of 24 the audience who wanted to give comments, as well. 25 I just want to make sure your comments are in

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 regard to the subject of this hearing and not anything 2 else. 47

3 

### 4 5 

### 6 

### 7 8 Is that the case? MR. SILFER: Yes, that's the case. KYLE SILFER after having been first duly sworn under oath,

testified as follows: DIRECT TESTIMONY 9 

### MR. SILFER: I am president of a neighborhood 10 association which abuts the American Cement facilities 11 that has been brought up a couple of times in this 12 discussion. I think there was some discussion about 13 periodic inspection of the facility, and I'd like to 14 point out that in the case of American Cement, in 15 particular-- 16 MS. KEARNY: Excuse me. This matter may come 17 before the Board on appeal. We cannot be addressing 18 the specific issues related to the complaints about the 19 permit. 20 MR. GRANTHAM: That's correct. And if you 21 could limit your comments solely to the rulemaking and 22 not with regard to American Cement. 23 MR. SILFER: Okay. I have a question. 24 Are we talking about an increase in the 25 actual operating hours but beneath the operating hours

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 of the permit in this rule? 48

2 

### MR. GRANTHAM: I believe, in short, that is 3 the testimony of the Department. 4 

### MR. SILFER: So the permitted hours are not 5 exceeded

-- if the permitted hours were exceeded, then 6 a new permit would have to be sought, a permit 7 modification; is that the case? 8 9 

### MR. GRANTHAM: Mr. Tavarez? MR. TAVAREZ: Mr. Hearing Officer, Members of 10 the Board, Mr. Silfer, that is correct. 11 MR. SILFER: Okay. My comment is that I 12 think it's unclear from the language that's stated 13 there that that's the case, but I am glad it's been 14 clarified in this hearing. 15 The other question I have is what is the 16 benefit of aligning the definition of "Modification" to 17 align with 40 CFR Part 51.100(s)? 18 MR. BUTT: Mr. Hearing Officer, Members of 19 the Board, any time we find that language that will 20 benefit the people in interpreting the rules is 21 incorrect, we try and propose changes to it. 22 The federal government is always modifying 23 their language, and so any time they propose a change 24 in their language, they will issue a notice in the 25 Federal Register of a proposed change in their language

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 and their federal rules. 2 And then once they make that final

-- and one 3 of my jobs as the lead for the Division is to monitor 4 those Federal Registers and, as they come by, keep 5 track of them, and when one comes by and looks like 6 it's going to be significant, I will incorporate those 7 changes into whichever rule it affects. 8 And then once it goes through a committee 9 inside a division, then we show it to stakeholders for 10 at least 30 days, sometimes longer, and then I will 11 send it to EPA so that they are comfortable with it for 12 at least 30 days, sometimes longer, and then I give the 13 public 60 days to think about it and provide comments, 14 and this all is before it comes before you. 15 So I'd say if it's heuristic, anything that 16 makes it better, we will try and present it to you. 17 There is nobody necessarily telling us that we need to 18 put it in here, but if it helps people when they are 19 reading their other rules, they will come along and 20 they will see a definition, and it may not be in that 21 rule, it may be such a general term that it's not 22 actually culled out in the definitions section of that 23 particular rule, and they will think to themselves 24 "Well, what exactly does that mean? I know what that 25 means like in English or in literature, but what does

KATHY TOWNSEND COURT REPORTERS 505-243-5018 49

### 1 that mean when I am reading a scientific rule?" 50

2 

### So then they can refer to your Part 1, and, 3 10 and behold, there is "Modification." So they can 4 read that and they go "Oh, 

### okay. That makes a lot more 5 sense 

### now. 

### 'I 6 And then what we try not to do is we have a 7 codicil in all of your rules that says if you are 8 reading a rule and there is a definition inside that 9 rule and it conflicts with Part 1, say you are in 10 another rule and there is something really specific, 11 like maybe "Modification" means something different in 12 one of the other rules, or another word means something 13 different than what it is in Part 1, then the rule you 14 are reading supersedes it. 15 So if you are reading one of your other rules 16 and the two definitions conflict, you're supposed to 17 disregard Part 1 and just refer to what's inside that 18 particular rule. So we are doing it to try to be more 19 helpful, but Part 1 is kind of an artifact; as I 20 mentioned before, it's from the '70s. It's supposed to 21 be more helpful. 22 And that is also some of the impetus for 23 trying to get the ambient standards out of there, 24 because they don't belong in there. That's a 25 stand-alone rule which we can go out and enforce and

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 cite people for; whereas, Part 1 is supposed to be a 2 help to the public and to the Board to try and 3 understand generally what's going on and what these 4 terms are. 51

5 

### MR. GRANTHAM: Thank you, Mr. Butt. 6 Mr. Silfer, did you have additional 7 comments? 8 MR. SILFER: Let's see. I guess the concern 9 that the neighborhood association had was about public 10 notice, and it sounds to me that that has been 11 addressed by the fact that the permitted hours cannot 12 be changed to exceed the permit, and I am glad to hear 13 that. 14 And the only other comment I would make is 15 that Albuquerque and Bernalillo County have a greater 16 density and more instances of polluters and residents 17 existing in close quarters than is the case statewide. 18 So I am concerned that aligning rules on a 19 state level might not be sensitive to that fact that 20 this area is different and more dense than anywhere 21 else in the State of New Mexico. 22 And that's my comment. 23 24 25 MR. GRANTHAM: Thank you, Mr. Silfer. Are there questions from the Board? Are there any other witnesses

-- excuse me,

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 any other members of the public who have signed up to 2 give testimony? 3 Come down to the pOdium. 4 ROBERT MAH 5 after having been first duly sworn under oath, 6 testified as follows: 7 DIRECT TESTIMONY 52

8 MR. MAH: I certainly hope that I have not 9 10 totally misinterpreted everything. statement. My name is Robert Mah. I have a prepared I live in 11 California, but I spend three or four months each year 12 in Albuquerque. I own property in the North Valley. 13 A week ago, I attended a continuation of a 14 public hearing regarding the permit requested by

-- 15 MR. GRANTHAM: Excuse me, Mr. Mah. I'm sorry 16 to interrupt, but is this relating to the American 17 Cement case? 18 19 

### MR. MAH: Yes. MR. GRANTHAM: Again, this hearing is limited 20 to the subject matter of the proposed amendments to the 21 rule, and there will be other forums to bring those 22 concerns, including possibly to this Board in the 23 future, but I'd ask you to limit your comments to the 24 rulemaking, in general, and not in reference to this 25 particular case.

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### MR. MAH: I had a whole paragraph of 53

2 details. My second paragraph started "I mention all 3 this detail because if you approve the" -- "if you 4 approve two of the changes to the rules and regulations 5 governing the permitting process that the Air Quality 6 Division has requested -- the items in question are 7 items 4a and 4b -- Grupo Chihuahua would not have had 8 to apply for the permits that generated those public 9 hearings. They could have run 24 hours a day, 10 quadrupling their air pollution through increased 11 production without seeking any input from the 12 neighborhood around them. In fact, the neighborhood 13 would not be notified at all. Our neighborhood does 14 not benefit in any way from Grupo Chihuahua's cement, 15 but they have to live with its consequences, as do the 16 two elementary schools" -- 17 

### MS. KEARNY: Excuse me, Mr. Hearing Officer. 18 I understand his desire to speak to the Board, and I 19 think a lot of people are confused and think that it's 20 the Air Board that makes the decision about permit 21 issuance and permit modification, and it does not. 22 The Board sits as a judge. If the Division 23 makes a decision -- or when the Board makes a decision 24 one way or the other about post modification to a 25 permit and then it is appealed to the Board, the Board

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 sits as judges, and they cannot be lobbied in advance 2 of that hearing. 3 And the notice that's regarding the hearing 4 today relates to amendments to -- proposed amendments 5 to Part 1 and Part 8, and I think the staff have 6 already addressed the fact that if the permit limits 7 the hours of operation, given the proposed wording, and 8 they want to increase the hours of operation, as that 9 increases the emissions, you do have to have a complete 10 process of amendment and permit, notice, opportunity 11 for public hearing, and decision. 54

12 MR. GRANTHAM: Yes, Mr. Mah, as has been 13 correctly observed, and the objection, so to speak, is 14 sustained, that this testimony is not strictly relevant 15 to the proceeding on the rulemaking, itself, and for 16 the reasons that Counsel for the City gave, we cannot 17 discuss that in this forum here tonight, the 18 particulars of that case. 19 20 That will be coming before the Board in the future. it may be coming So, again, if you 21 could please comment on the rules, in general, and we 22 have heard a lot of testimony about this issue of the 23 hours of operation, that's been well vetted by the 24 Board, but if you have any additional comments. 25 MR. MAH: Well, apparently, I do not.

KATHY TOWNSEND COURT REPORTERS 505-243-5018 I was

### 1 just wanting to urge the Board not to adopt items 4a 2 and 4b of the rule governing the permitting processes, 3 essentially summing up what I had put together. 55

4 

### 5 comments. MR. GRANTHAM: Well, I appreciate your

6 Are there questions from the Board for Mr. 7 Mah? I don't see any, Mr. Mah. 8 9 it brief. Ms. Richards has another, if you could keep

10 MS. RICHARDS: Kitty Richards. I just want 11 to make sure I am clear on this based on the responses 12 that I have heard so far. 13 So it sounds like change in ownership is not 14 addressed anywhere else, should the permit applicant 15 decide to sell to somebody else, as long as the 16 emissions do not change, as long as the emission 17 limitations don't change; and then, secondly, if 18 somebody was issued a permit, say, from 7:00 a.m. to 19 5:00 p.m., and that was a condition of the permit, and 20 if they then decided to increase their hours to 12:00 21 to 12:00, so around the clock, 24 hours, but there are 22 no emissions that have been increased as a result, they 23 would not be required to get a permit modification; is 24 that correct? 25 MR. GRANTHAM: I believe with regard to

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### 1 ownership that the testimony of Mr. Tavarez was that, 2 to his knowledge, that to your immediate knowledge, 3 there are no prohibitions, but you're going to check on 4 that? 56

5 

### 6 7 8 

### 9 10 11 MR. TAVAREZ: Yes. MR. GRANTHAM: Okay. Mr. Rocha? DARIO ROCHA after having been first duly sworn under oath,

testified as follows: DIRECT TESTIMONY MR. ROCHA: Chairman Deichmann, Members of 12 the Board, in response to Ms. Richards' comments 13 regarding change of ownership, we do have a provision 14 under our existing Part 41 regulation. 15 Part 41 is our construction permit 16 regulation. The citation for this change of ownership 17 provision can be found under 20.11.41.20, "Permittees' 18 Notification Obligations to a Department." Under 19 capital "B" -- I'm sorry, under capital 

### "C," "The 20 owner/operator is required to notify the Department 21 within fifteen days of change of ownership of a 22 source." 23 Now, currently, we don't have a permitting 24 mechanism under Part 41 to allow that change, so we do 25 handle it through what's called an "administrative

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 permit modification." Whenever a source changes 2 ownership, they send us notification of that change. 3 The new owner/operator would have to submit 4 an application to us to reflect that change in 5 ownership. Now, regarding the question on 6 "Modification" and hours of operation, since this 7 seems to be the center of a lot of discussion, the 8 definition of "Modification" that would apply for minor 9 sources is under Part 41, and that's the prevailing 10 definition that would be used, not the definition under 11 Part 1. 12 The definition under Part 41 clearly states 13 that "A modification is not triggered unless previously 14 limited by an enforceable permit condition, an increase 15 in the production rate, and such increase does not 16 exceed the operating design capacity of the source." 17 Also, "An increase in the hours of operation 18 or use of an alternative fuel or raw material prior to 19 January 6th, 1975, the source was capable of 20 accommodating such fuel or raw material," and that 21 definition keeps going on, but it is covered under our 22 current Part 41 permit regulation. 23 That's the modification

-- that's the 24 definition we would use when making a determination of 25 if a source triggers a modification.

KATHY TOWNSEND COURT REPORTERS 505-243-5018 571 

### MS. RICHARDS: I just have a question for 58

2 you. Since I don't have Part 41, is that for 3 construction permits, or is that for minor source? 4 

### MR. ROCHA: This is the minor source 5 construction permit regulation. 6 

### MS. RICHARDS: So does it include other than 7 construction? 8 

### MR. ROCHA: Every construction permit that we 9 issue under Part 41 has operating restrictions in it. 10 11 

### MS. RICHARDS: Never mind. MR. ROCHA: Well, in order to -- well, to 12 address your question regarding operating hours, if 13 there is 14 MS. RICHARDS: No. Never mind. I am just 15 not

-- I know under some in the State, they have 16 different sections for different types of permits, and 17 I am just wondering if this just applies to 18 construction. 19 MR. ROCHA: Okay. This is a construction 20 permit regulation. What Ms. Richards may be referring 21 to, and I am not sure, is our Part 42 regulation, which 22 is "Operating Permits." That is not a construction 23 permit regulation. 24 MS. RICHARDS: So I guess my question is does 25 this apply to operating permits?

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 2 MS. KEARNY: Could I answer that? MR. GRANTHAM: Ms. Richards, if you would 59

3 address your comments to the Board. 4 

### 5 

### MS. RICHARDS: I'm sorry. MS. KEARNY: Do you want to respond, Daria? 6 

### MR. ROCHA: In 20.11.42 NMAC, that is for 7 major sources, and it's covered under the operating 8 permit regulation. 9 

### 10 MS. KEARNY: Mr. Hearing Officer, Mr. Chairman, Members of the Board, Adelia Kearny. I think 11 the confusion arises under federal law and under the 12 State Air Quality Control Act. 13 74-2-7 specifically talks about permits, 14 permit regulations, permit applications, hearings, and 15 appeals, and it divides all of the air permits into two 16 categories: One is called "Construction," and I used 17 to think that was confusing, too, but that's really 18 minor source, and, for whatever reason, they call the 19 other one, because the feds do also, "Operating 20 Permits," and that's major. That's the 100 tons or 21 more or certain tonnage of hazardous air pollutants and 22 so on. 23 So it doesn't matter as a -- it doesn't make 24 a practical difference. You can call one an "A Permit" 25 and one a "B Permit," but, in fact, the A Permit, which

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 is the minor source permit, which is called the 2 "construction permit," isn't just regarding 3 construction. 4 It really includes, and always does

-- under 5 federal law and under State Act and under EIB 6 regulation and under local regulation, it not only 7 allows you to begin construction of a minor source 8 permit, but it establishes, in great detail, the 9 equipment, the configuration, the throughput, the fuel, 10 and all those other things that Mr. Tavarez is talking 11 about, and that's what it operates under. 60

12 So to that extent, it is an operating permit, 13 but it's called a "construction permit." And the major 14 source permit is called, under the State Act, an 15 "operating permit," and I am not sure that made it any 16 clearer, but that's the statutory scheme and that's the 17 terminology that's used. 18 And so yes to Ms. Richards' question, a Part 19 41 minor source construction permit is also an 20 operating permit forever, until the term of the permit 21 ends or the business closes down. 22 On the issue of change in ownership, there is 23 nothing in the local Air Board regulations that 24 authorizes the Division to refuse a change in ownership 25 of a permit, unlike, say, liquor licenses, where you

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 cannot transfer a liquor license if the proposed 2 purchaser has felony convictions, there is nothing like 3 that in the local air regs. 4 So the Air Division keeps track of the 5 changes through notification. 61



### 6 MR. GRANTHAM: Thank you, Ms. Kearny, for 7 that clarification. 8 Mr. Deichmann has a statement. 9 MR. DEICHMANN: Since you are in the 10 business, going back to the same dead horse, with 11 respect to 4c, "Use of alternative fuel" -- no, 4a, 12 "Increase in production rate," if such increase does 13 not exceed the operating design capacity of the source, 14 Mr. Rocha referred to that just a minute ago, and I 15 thought I was getting this straight, but that seems to 16 contradict what we talked about earlier, because in my 17 mind, the plant could have an operating design capacity 18 that's greater than what's permitted; is that correct? 19 MR. ROCHA: Yes, that's possible. 20 MR. DEICHMANN: Does that create a problem? 21 MR. ROCHA: However, regarding the increased 22 production rate, we would evaluate this on a 23 case-by-case basis. If a facility were to, let's say, 24 change their operation, and in doing so, they were able 25 to find a different process in accomplishing the

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 manufacturing of a product, say, and it bottlenecks the 2 process without increasing the pollution rate, then 3 that would not be a modification because you are simply 4 finding a more efficient way of manufacturing the 5 product. 6 They have eliminated some inefficiencies, 7 streamlined the process, and they have been able to 8 increase their production rate without increasing their 62

9 pollution rate. If they do increase their pollution 10 rate, that's an automatic modification. 11 MR. DEICHMANN: Sure. But that's not what 12 that says. It doesn't refer to pollution rate. It 13 just refers to exceeding the operating design. 14 So if you had a 100-widget-per-hour operating 15 design, you had a permit for 40, and they wanted to 16 move to 100, then could they do that? 17 MR. ROCHA: If they wish to go to 100, then 18 they would submit an application to us for 19 modification, because they would have to remodel 20 because that would probably result in an increase in 21 emissions and they would have to remodel their facility 22 to account for the increased emissions from the 23 facility. 24 MR. DEICHMANN: Okay. So that goes back to 25 my earlier conversation with Mr. Tavarez.

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 And so the sense I am getting is that this is 2 kind of old language that comes out of the State Act, 3 with respect to it, anyway, and so there are ways to 4 deal with that, but it's not clear from this language, 5 which is statutory? 63

6 

### MR. ROCHA: Right. But the definition that 7 you are looking at is under Part 1. The definition I'm 8 looking at is under Part 41. We would do our 9 evaluation based on the definition under Part 41. 10 11 MR. DEICHMANN: Okay. MS. KEARNY: And, if I may, Mr. Hearing 12 Officer, Mr. Chairman, Members of the Board, the 13 "Definitions" section of Part 41, so you are talking 14 about potential minor source construction, and, 15 actually, an operating permit, and the lead-in to the 16 definition says very clearly "This part," Part 1, "60, 17 61, 64, use terms with exclusive meanings applicable to 18 construction or modification permits throughout these 19 parts. These terms herein defined shall have the 20 following meaning. If there is any apparent conflict 21 among the use of said terms, Part 1 definition of 22 'Modification' versus Part 41 definition of 23 'Modification,' the meaning specified in this part, 24 Part 41, shall prevail." 25 So I think what Mr. Butt was saying is Part 1

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 is a fall-back if there is no other general definitions 2 section, but if it's specific and it's in the permit 3 that you are using to determine whether or not there is 4 a modification or what conditions you have to apply to, 5 you look at the applicable definitions in the 6 applicable regulation. 64

7 

### MR. DEICHMANN: Thank you. After all this 8 time, do I have to conclude that it doesn't really 9 matter? 10 MS. KEARNY: Well, it might in some other 11 ways, I guess, but I would point out that I personally 12 have encountered situations in which people say "Well, 13 the federal reg is this and the State reg is that," 14 "Part 41 says this," and, you know, "Isn't federal 15 more important, higher on the food chain, than your 16 reg?" 17 So, you know -- and then the EPA does review 18 our reg changes and amendments and they are 19 incorporated. So we do try to maintain consistency 20 with the fed and State definitions. 21 22 23 everybody. MR. DEICHMANN: Okay. MR. GRANTHAM: I believe we have heard from If there are no more questions from the 24 Board for any -- or witnesses, I'd ask if there are any 25 objections to closing the hearing at this point.

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 Hearing none, the hearing is adjourned at 7:02 p.m. 2 Thank you. 65

3 

### MR. DEICHMANN: We begin this regular monthly 4 meeting of the Air Quality Control Board at 7:04 p.m. 5 We have Members Upson and Grace missing. 6 And the first thing I'd like to do is ask if 7 there are any objections to approval of the agenda as 8 is. Any changes? 9 

### 10 11 

### 12 13 Is there a motion to approve? DR. MENACHE: Motion to approve. MR. DEICHMANN: There is a motion to approve. MR. SHARPE: Second. MR. DEICHMANN: There is motion to approve by 14 Member Menache, second by Mr. Sharpe. All in favor say 15 aye. Opposed? The motion passes unanimously. 16 Has everyone had an opportunity to review the 17 draft minutes from July 8th, 2009? 18 Are there any suggested changes, comments, 19 corrections? Hearing none, is there a motion to 20 approve? 21 22 23 24 25 MR. SULLIVAN: Motion to approve. MR. DEICHMANN: There is a motion to approve by Mr. Sullivan. MR. BRINKMAN: Second. MR. DEICHMANN: There is a second by Mr.

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### Brinkman. All in favor say aye. Opposed? No. The 2 motion passes unanimously. 3 With regard to our first action item, number 4 three, a decision on the matter that we just heard in 5 the hearing to amend the General Provisions and the 6 Ambient Air Quality Standards, is there

-- well, I 7 would -- we pretty well exhausted that subject, and so 8 what I would like to do is propose -- or I would move 9 that we accept this First Amended Resolution Number 10 2009-5, which I will read into the record, and then if 11 we have a second, we can have a further discussion 12 about it in terms of any changes. 13 So I move for adoption of the First Amended 14 Resolution 2009-5 adopting amendments to the 15 Albuquerque-Bernalillo County Air Quality Control Board 16 Regulations 20.11.1 NMAC, General Provisions, and 17 20.11.8 NMAC, Ambient Air Quality Standards, and submit 18 an amendment to EPA as a revision to the SIP. 66

19 "Whereas, the New Mexico Air Quality Control 20 Act, NMSA 74-2-5, requires the Albuquerque-Bernalillo 21 County Air Quality Control Board," known as the "Air 22 Board," "to adopt, promulgate, publish, amend, and 23 repeal regulations consistent with the Air Quality 24 Control Act to attain and maintain National Ambient Air 25 Quality Standards and prevent or abate air pollution,

KATHY TOWNSEND COURT REPORTERS 505-243-5018

### 1 including regulations prescribing air standards within 2 Bernalillo County, and to meet requirements of the 3 United States Clean Air Act, the City of Albuquerque 4 and Bernalillo County Joint Air Quality Control Board 5 Ordinances, and the Albuquerque-Bernalillo County Air 6 Quality Control Board Regulations"; and "Whereas, on 7 August 12, 2009, the Air Board held a public hearing in 8 the Vincent E. 

### Griego Chambers in the basement of the 9 Albuquerque-Bernalillo County Government Center, One 10 Civic Plaza, Northwest, in Albuquerque, New Mexico, and 11 the hearing was held consistent with the notice 12 requirements of the New Mexico Air Quality Control Act, 13 and 20.11.82 NMAC, Rulemaking Procedures, AQCB"; and 14 "Whereas, on August 12, 2009, the Air Board met and 15 determined that updating the local Air Quality Control 16 Board regulation by deleting Section 20.11.1.14 NMAC, 17 Interpretation, which will be placed in 20.11.8.14, 18 Interpretation, to align language in 20.11.1.7 NMAC 19 with the language in 40 CFR Part 51.100(s), the New 20 Mexico Air Quality Control Act, and the proposed 21 20.11.49 NMAC, Excess Emissions, to align language in 22 20.11.8.13 NMAC with federal standards and to correct 23 style and formatting is necessary"; and "Whereas, the 24 August 12th, 2009, public hearing testimony was 25 presented to establish a present need or a reasonably

KATHY TOWNSEND COURT REPORTERS 505-243-5018 67

### 1 anticipated future need which exists to warrant taking 2 the following actions to help prevent or abate air 3 pollution: Now, therefore, be it resolved by the Board 4 that: One, Regarding 20.11.1 NMAC, General Provisions, 5 and 20.11.8 NMAC, Ambient Air Quality Standards, the 6 Board hereby adopts the amendments to 20.11.1 NMAC, 7 General Provisions, and to 20.11.8 NMAC, Ambient Air 8 Quality Standards, as proposed in AQD Exhibit la, and" 9

-- small 

### "a"

-- "and lb respectively, which 10 were admitted at the August 12, 2009, hearing as 11 amended by Staff's Proposed Floor Amendments for 12 20.11.1 NMAC and 20.11.8 NMAC, which is AQD Exhibit 13 Number 10." 14 "Number two, The Board hereby directs**~taff** 

### 15 to take all actions necessary to submit amended 16 regulations to EPA as a revision to the SIP." 17 "Number three, The effective date of the 18 amendments to 20.11.1 NMAC, General Provisions, and 19 20.11.8 NMAC, Ambient Air Quality Standards, shall be 20 September 14, 2009." 68

21 "Number four, staff is directed to submit 22 the amendments to 20.11.1 NMAC, General Provisions, and 23 20.11.8 NMAC, Ambient Air Quality Standards, to the 24 State Records Center in the format currently required 25 by the State Records Center without changing the

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### 1 substance of the amendments as adopted by the Air Board 2 on August 12. 2009." 3 Is there a second? 69



### 4 MR. SHARPE: Second. 5 

### MR. DEICHMANN: There is a second by Member 6 Sharpe. Any discussion? 7 Member Sullivan? 8 9 changes? MR. SULLIVAN: Is this here where we propose

10 11 MR. DEICHMANN: Yes. MR. SULLIVAN: Okay. Part 1, page two, line 12 43, I think we should, as suggested. eliminate the word 13 "Malfunction." In that definition where it says 14 "Breakdown" should now read "Breakdown or upset or 15 modification," I think would be better "Malfunction" 16 is the word. I already crossed it out. 17 MR. DEICHMANN: Okay. Member Sullivan. I 18 have a question on that, and I don't object offhand, 19 but I'd like I have not really had a chance to go 20 back and try to understand why it's a problem or why it 21 was there to begin with. 22 Could you explain that. or should we ask 23 someone else? 24 MR. SULLIVAN: Well, just as was mentioned, 25 there is a -- page three, line 47, there is a

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### 1 definition of "Malfunction," and it's a little bit 2 different than line 

### "L." So let's just go with 3 "Malfunction." 

### 4 And then line 43 on page two is "Breakdown or 5 upset." 70



### 6 7 MR. DEICHMANN: Okay. MR. SULLIVAN: Can I ask staff if there is 8 any reason why that "malfunction" is in that definition 9 or phrase, or is that just kind of an artifact of the 10 past? 11 MR. DEICHMANN: Mr. Butt? 12 MR. BUTT: Thank you, Chairman Deichmann, 13 Members of the Board. Yes, that's an artifact from the 14 previous, I believe -- I couldn't say without research, 15 but your current excess emissions rule, which is in 16 

### Part 90. It's a section within Part 90. And this 17 probably refers to that, and that's no longer adequate 18 and that's why we are going to propose an adequate 19 excess emissions rule this fall. 20 MR. DEICHMANN: Okay. 21 MR. BUTT: If it were me, I wouldn't 22 necessarily change it because it may need to be struck 23 altogether, but it's up to you. It might be more 24 efficient for us to research it, and then when we 25 propose the excess emissions rule this fall, we might

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### 1 have a better answer to Part 1 and see if that whole 2 paragraph, subsection "L," 

### needs to be taken out 3 altogether, but it's up to you. 4 So yes, I believe without a lot of research, 71

5 

### I couldn't tell you for sure. I don't know whether it 6 

### would be confusing or helpful to change it. In the old 7 days, that meant something, "Breakdown or upset." 8 "Upset" was referring to excess emissions, 9 and the way I understand it, those are the three things 10 that can happen to a manufacturing facility that will 11 cause excess emissions and cause a problem and are the 12 genesis of why you need an excess emissions rule, and 13 they all go together, it's like salt and pepper, it's 14 just a phrase that goes together with all three of 15 those together, but it's your -- it's up to you what 16 you do. 17 MR. DEICHMANN: 

### I guess my concern would be 18 that

-- I mean, one, I don't like tinkering without 19 knowing for sure does it have some intended 20 consequence; and, on the other hand, I wonder if it 21 creates some sort of a legal bind without knowing, you 22 know, ahead of time, but with the new language, if we 23 approve that, you know, does that create some sort of a 24 legal problem if something were to be appealed? 25 MR. BUTT: 

### I couldn't say.

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### 505-243-5018

### 1 MR. SULLIVAN: The fact that these are 72

2 general provisions and that if you're talking about 3 whatever rule that you were talking about, where this 4 definition

-- where this phrase, "Breakdown, 5 malfunction, or upset," mayor may not come, it's in 6 that section. 7 So if we have a definition of "Malfunction," 8 let's use it. This is "Breakdown and upset." The 9 other one is "Malfunction." 10 MR. GRANTHAM: I have to caution the Board 11 and remind the Board that deliberations are to be on 12 the record of the hearing and not based on further 13 questioning of the staff here. It's kind of an 14 artificial distinction, given that we just finished the 15 hearing, but the hearing was closed, and people may 16 have left who would have liked to comment. 17 So we really need to limit it to what you 18 heard during the hearing, and if additional evidence or 19 deliberations are needed on this particular matter, 20 perhaps that would be the subject of another hearing 21 with additional changes through the definitions. 22 23 corrected. MR. DEICHMANN: Thank you. I didn't think about that. I stand

24 So would that be a fair question to ask you, 25 as our attorney, whether there is some inherent danger

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### 1 in doing this without a hearing? 73

2 MR. GRANTHAM: Well, I guess my gut instinct 3 would be the danger is rather small, but I would have 

### 4 to do the research to determine whether there could be 5 implications for making that change. 

### 6 MR. DEICHMANN: Okay. Thank you. Okay. I'm 7 not going to ask Mr. Butt anything more. Thank you. 8 

### Okay. Well, thank you, Mr. Sullivan. I appreciate the 9 question. And I don't have a real strong feeling one 10 way or another myself. 11 Did you have some other suggestions? 12 13 MR. SULLIVAN: No. MR. DEICHMANN: Okay. Did you want to 14 propose that as an amendment to a motion? 15 MR. SULLIVAN: I would like to propose that 16 we delete, on Part 1, page two, line 43, subparagraph 17 

### "L," that the word "Malfunction" be deleted from 18 "Breakdown, malfunction, or upset" to now read 19 "Breakdown or upset." 20 MR. DEICHMANN: Is there a second? 21 MR. SHARPE: I second that. 22 MR. DEICHMANN: There is a second by Member 23 Sharpe. Any other discussion on the amendment? 24 All right. We will have a vote on that. All 25 in favor of the motion say aye. Raise your hand so I

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### 1 can see. We have got five votes. So it's unanimous. 74

2 3 

### 4 5 6 7 

### Okay. So we have an amendment to the initial motion. Is there any other discussion? Any other motions for amendments? DR. MENACHE: Yes. MR. DEICHMANN: Dr. Menache? DR. MENACHE: I move that we incorporate the 8 definition of "Environmental Justice" into the 20.11.1 9 definitions, and I move that we take the definition 10 from 20.11.82 NMAC and that definition read: 11 "Environmental Justice means the fair treatment of all 12 residents (in the City of Albuquerque and Bernalillo 13 County) including communities of color and low income 14 communities and their meaningful involvement in the 15 development, implementation, and enforcement of 16 environmental laws, regulations, and policies 17 regardless of race, color, ethnicity, religion, income, 18 or education level." 19 

### MR. DEICHMANN: Is there a second? 20 MS. KEARNY: Mr. Chairman, Members of the 21 Board, I don't think the Air Division -- and I know I 22 

### don't have a problem with the definitions. The concern 23 is technical, and that wasn't within the notice that 24 was given to the public at all. 25 So, technically, it shouldn't be included in

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### 1 the resolution amending either Part 1 or Part 8. That 2 can be done differently or at a different time, and 3 it's awkward to sort of object to it, but as a legal 4 matter, it's not proper. You might ask your Air Board 5 attorney for an interpretation of that. 75



### 6 MR. DEICHMANN: Thank you. I was first going 7 to see if there was a second on that and then we could 8 have sort of a discussion. 9 Is there a second? 10 11 MR. BRINKMAN: There is a second. MR. DEICHMANN: There is a second by Member 12 Brinkman. Going to Ms. Kearny's observation, I was 13 reflecting back on earlier testimony that we had to 14 that effect, I am concerned about that. So that's one 15 objection that I would have of doing it tonight. 16 Secondly, I have a practical question with 17 respect to the use of the

-- or applying a definition 18 to this Part 1. 19 Is there any use of that term in the actual 20 part here that requires a definition? 21 DR. MENACHE: My understanding is that this 22 is nothing but definitions. It's kind of like a 23 dictionary. 24 25 MR. DEICHMANN: Okay. DR. MENACHE: And so this would be sort of

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### 1 like a -- not overriding, but just like an overarching 2 set of definitions so that if the term were used and 3 defined elsewhere, there would be a fall-back place to 4 look for the definition. 76

5 6 7 8 9 

### 10 11 

### 12 MR. DEICHMANN: Okay. But it 

### is in Part 82? DR. MENACHE: Yes. MR. DEICHMANN: So it 

### would be DR. MENACHE: So it 

### would mean that you wouldn't have to put it 

### in every single regulation that

came through. MR. DEICHMANN: Okay. Member Sharpe? MR. SHARPE: Yes. I am not sure I understood 13 the City Counsel's comment about the fact that it 14 wasn't advertised -- or, you know, public notice in 15 advance and all that stuff. 16 What difference does that make? 17 How could anybody object to that? 18 MR. DEICHMANN: Well, I don't know that it's 19 objectionable, I mean, to anyone. 20 MR. SHARPE: Yes. 21 MR. DEICHMANN: I think it's more a question 22 of proper notice and such as that of the subjects. So 23 I would ask Bill Grantham for his perspective on it. 24 MR. GRANTHAM: Yes. As I noted earlier in 25 the hearing, I agree with Ms. Kearny that there is a

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### 1 problem with notice on that. The notice for this 2 hearing did not mention "Environmental Justice" in any 3 way. There is really no way for the public to have 4 known that if they wanted to make input on 5 environmental justice issues, they should be at the 6 hearing and testify. 77

7 

### You know, perhaps somebody would have wanted 8 a different or more progressive, if you will, or less 9 progressive definition of "Environmental Justice," and 10 that's why the notice provisions exist. 11 So I do think that it would be problematic to 12 make a change to add "Environmental Justice" to the 13 definitions when it's completely different than 14 anything that was in the notice and there have been no 15 parties given a chance to submit Notices of Intent to 16 testify and to testify. 17 Generally, the standard in administrative law 18 for making changes that differ from what was noticed is 19 whether they are a logical outgrowth of what was the 20 content of the notice, and I think it would be a far 21 stretch to say that environmental justice concerns or 22 definitions are sufficiently logically related to the 23 things that were noticed that the public would have had 24 that notice. 25 Whether anybody is going to challenge it is

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### 1 kind of a calculation for the Board to make, but I 2 think it would be -- it would likely be vacated by a 3 court if it did go to a court. 78

4 

### MR. DEICHMANN: Thank you. So per what you 5 were saying then, the logical outgrowth, this 6 modification we made to the definition of "Breakdown, 7 malfunction, or upset," that was a logical outgrowth of 8 the discussion that we had and what was noticed? 9 

### 10 11 was not? 12 13 MR. GRANTHAM: Yes. MR. DEICHMANN: But "Environmental Justice"

MR. GRANTHAM: Correct. DR. MENACHE: May I ask where the proper 14 place would be if I wanted to encourage such language 15 to be included in future versions of the definition? 16 MR. DEICHMANN: It would have to be a 17 rulemaking, I believe. 18 MR. GRANTHAM: There would have to be a 19 rulemaking and somebody would have to bring that 20 somebody would have to petition the Board for a 21 rulemaking. So I guess I will leave it at that and let 22 you think about how such a petition might corne about. 23 MR. BRINKMAN: Could it be as simple as us 24 requesting it in the next changes to the Air Board, for 25 Mr. Butt to include it in the next set of changes? We

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### 1 have done that. 79

2 MR. GRANTHAM: You could recommend to the 3 Division that they make

-- they come back to the Board 

### 4 with revisions to the "Definitions" section. The 5 Division would not be compelled to do that, but you 6 could encourage it. 7 MR. DEICHMANN: Any other questions, 8 comments? We have a motion to amend, and I will vote 9 against it for the reasons that we have stated, not 10 because I don't agree with the language, but I am 11 pretty conservative about how we go about our 12 rulemaking and prefer to keep it where it's not subject 13 to overturning at some point or having a question. 14 Any other comments or advocacy? 15 Mr. Sharpe? 16 MR. SHARPE: It just seems to me that 17 environmental justice ought to be part of the American 18 way and that it doesn't seem to me to be a stretch at 19 all to include it in this document. I just don't 20 understand that reasoning, but, I mean, I am not a 21 lawyer. I will yield to the pros, but it just seems 22 like baloney to me, frankly, and that's all I have got 23 to say. 24 MR. DEICHMANN: Well, I guess my response to 25 that would be that yes, there are a lot of things that

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### 1 we think are logical and we, ourselves -- which I don't 2 think there is any argument in this particular case. 80

3 

### 4 MR. SHARPE: Right. MR. DEICHMANN: But you might come up with 5 something that you think is perfectly logical that 6 nobody else does. 7 8 

### MR. SHARPE: Yes. MR. DEICHMANN: And then you start, you know, 9 going down that slippery slope. 10 MR. SHARPE: Oh, yes. 11 MR. DEICHMANN: That's why I try to be 12 conservative about that. So we will have a vote. 13 All in favor of the motion to amend say aye. 14 There is one. 15 16 17 18 19 

### DR. MENACHE: I would like to abstain. Is that an option? MR. DEICHMANN: That is an option. MR. SHARPE: Me, too. I will abstain. MR. DEICHMANN: So we have one in favor. 20 Opposed? Two opposed and two abstaining. The motion 21 fails. We are back to the original motion that was 22 amende9' 23 Are there any other proposed amendments? 24 Okay. We will have a vote on the amended motion. All 25 in favor say aye. Opposed?

KATHY TOWNSEND COURT REPORTERS 505-243-50181 

### 2 DR. MENACHE: I want to abstain again. MR. DEICHMANN: Do we have any opposed? One 81

3 abstention. So four in favor of and one abstention on 4 the vote. Thank 

### you. 5 

### 6 Thank 

### you, for the Division. Are there any questions of the staff? I 7 think we are concluded then. 8 (Proceedings concluded at 7:30 p.m.) 

### 9 10 11 12 13 14 15 16 17 18 19 

### 20 21 22 23 24 25

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### 1 STATE OF NEW MEXICO 2 3 COUNTY OF BERNALILLO 4 I, the undersigned Court Reporter, HEREBY 5 CERTIFY that the foregoing hearing was recorded by me 6 by machine shorthand; that I later caused my notes to 7 be transcribed under my personal supervision; and that 8 the foregoing is a true and accurate record, to the 9 best of my ability, of said proceedings. 10 I FURTHER CERTIFY that I am not a relative or 11 employee of any of the parties or attorneys involved in 12 this matter and that I have no personal interest in the 13 final disposition of this matter. 14 DATED this 17th day of August, 2009. 15 16 

### 82

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KATHY TOWNSEND COURT REPORTERS 505-243-5018