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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

Dear Dr. 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, Ambient Air Quality Standards, which applies to Bernalillo County,

New Mexico.

The Albuquerque-Bernalillo County Air Quality Control Board (Air Board) 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.

To facilitate your review and processing, the following materials are enclosed:

I) SIP Completeness Checklist pursuant to 40 CPR 51

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2) Hearing record, including transcript and exhibits ~~

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3) Comments and responses <: en

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4) The amended regulation adopted by the Air Board I (..0

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5) Other supporting documentation c· u:> rn

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State Capitol • Room 400 • Santa Fe, New Mexico 87501 • 505-476-2200 • www.govemor.stale.nm.us
Page 2

Your favorable consideration of this request is appreciated. If you have any questions, please

contact John Soladay, Director of the 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, Ambient AirQlIali!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 a request for their approval by way of publication in the Federal Register.

The Albuquerque-Bernalillo County Air Quality Control Board (Air Board) 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 - November 2, 2009

To facilitate your review and processing, the following materials are enclosed:

1) SIP Completeness Checklist pursuant to 40 CFR 51, Appendix V

2) Hearing record, including transcripts and exhibits

3) Public comments and responses

4) The proposed SIP revision for 20.11.8 NMAC, Ambient AirQuafity Standards

adopted by the Air Board.

5) Other supporting documentation

Thank you 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

Margaret Nieto, 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, AMBIENTAIR 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

for regular processing

(per 40 CFR 51 Appendix V)

2.1 Administrative Materials

(a) A formal letter of submittal from the Governor or his designee, requesting EPA

approval ofthe plan or revision thereof(hereafter "the plan").

X YES NO N/A

This package is being sent to EPA with a formal submittaii'letter from the

Governor ofthe State ofNew Mexico.

(b) Evidence that the State has adopted the plan in the State code orbody ofregulations;

or issued the permit, order, consent agreement (hereafter "document") in final form.

This evidence shall include the date of adoption or final issuance as well as the

effective date ofthe plan, if different from the adoption/issuance date.

X YES NO N/A

The amended regulation, 20.11.8 NMAC, Ambient Air Quality Standards,

was adopted August 12,2009 at the regular meeting ofthe Albuquerque-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

Center on August 14,2009 and became effective on September 14, 2009. The first

page ofAttachment A is a transmittal ofthe regulations to the State Records Center

signed by AQCB Chairman Jens Deichmann. The date stamp at the top ofthe page

indicates the date offiling.

(c) Evidence that the State has the necessarylegal authority under State law to adopt and

implement the plan.

X YES NO N/A

The New Mexico Air Quality Control Act provides for the regulation at

74-2-5.1 NMSA 1978, Duties and Powers OfThe Department And The

Local Agency; and for plan revisions at 74-2-5.2 NMSA 1978, State Air

1
Pollution Control Agency; Specific Duties and Powers ofthe Department.

(d) A copy of the actual regulation, or document submitted for approval and

incorporation by reference into the plan, including indication ofthe changes made to

the existing approved plan, where applicable. The submittal shall be a copy ofthe

official State regulation/document signed, stamped, dated by the appropriate State

official indicating that it is fully enforceable by the State. The effective date ofthe

regulation/document shall, whenever possible, be indicated in the document itself.

X YES NO N/A

AttachmentB contains a copy ofthe amendmentsto 20.11.8 NMAC, Ambient

Air Quality Standards, as filed with the NMSRC on 8/14/09, with an effective date of

9/14/09. The date stamp in the upper right-hand comer ofthe regulation 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

Attachment C.

(e) Evidence that the State followed all ofthe procedural requirements ofthe State'slaws

and constitution in conducting and completing the adoption/issuance ofthe plan.

X YES NO N/A

See NMAC Transmittal Form in Attachment A. This certifies that this rule

has been properly filed with the New Mexico State Records Center.

(f) Evidence that public notice was given of the proposed change consistent with

procedures approved by EPA; including the date ofpublication ofsuch 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, notice was also provided in the form ofan e-mail sent to the air

quality listserve and mailed when appropriate. The New Mexico Air QualityControl

Act at 74-2-6C NMSA 1978, Adoption ofregulations; notice andhearingsrequires a

30-day notice.

(g) Certification that public hearing(s) were held in accordance with the information

provided in the public notice and the State's laws and constitution, if applicable.

X YES NO - - N/A

2
,

The opening statement for the 8/12/09 public hearing includes information on

the notice of public hearing and instructions on how the hearing will be conducted.

See certified hearing record transcript in Attachment E.

(h) Compilation of public comments and the State's response thereto.

X YES NO N/A

See hearing exhibit #7 in Attachment D, and for public comment see the

hearing transcript in Attachment E for State's response thereto.

2.2 Technical Support

(a) Identification of all regulated pollutants affected by the plan.

X YES NO N/A

The regulated pollutants affected by this plan are listed in Section 20.11.8.13

NMAC, Summary ofFederal and State Ambient Air Quality Standards, found in

Exhibit #Ib in Attachment D. The objective of 20.11.8 NMAC 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 adopt

applicable State Ambient Air Quality Standards codified at 20.2.3 NMAC.

(b) Identification ofthe locations of affected sources including the EPA attainment!

non- attainment designation ofthe locations and the status ofthe attainment plan for

the affected area(s).

X YES NO _N/A

Essentially all sources in Bernalillo County could be affected, including

stationary, area, and mobile sources. Bernalillo County is currently designated as an

attainment area for CO under a Limited Maintenance Plan (LMP). This designation

was published in the Federal Register on July21, 2005 [Vol. 70, No. 139]. 20.11.8

NMAC, Ambient Air Quality Standards is not expected to negatively affect the

maintenance status for Bernalillo County. Bernalillo County is in attainment for all

other regulated pollutants.

(c) Quantification ofthe changes in plan-allowable emissions from the affected sources;

estimates of changes in current actual emissions from affected sources or, where

appropriate, quantification of changes in actual emissions from affected sources

through calculations ofthe differences between certain baseline levels and allowable

3
emissions anticipated as a result 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 standards that must not be violated. The changes that were made from the

prior regulation are including section 20.11.8.14 NMAC, Interpretation, and aligning

local ambient air quality standards codified at 20.11.8.13 NMAC, with federal

standards. These changes are not anticipated to change actual emissions since these

standards were already enforceable at the federal level, and are simply being

incorporated at the local level.

(d) The State's demonstration that the national ambient air quality standards, prevention

of significant deterioration (PSD) increments, reasonable further progress

demonstration, and visibility, as applicable, are protected iftheplan is approved and

implemented. For all requests to redesignate an area to attainment for a national

primary ambient air quality standard, under section 107 ofthe Act, a revision must be

submitted to provide for the maintenance ofthe national primary ambient air quality

standards for at least 10 years as required by section 175A ofthe Act.

YES NO X N/A

This plan revision does not pertain to redesignating an area to attainment for a

national primary ambient air quality standard. Nor does it pertain to PSD

increments and demonstrations ofreasonable further progress.

(e) Modeling information required to support the proposed revision, including input

data, output data, models used, justification ofmodel selections, ambient monitoring

data used, meteorological data used, justification for use ofoffsite data (where used),

modes ofmodels used, assumptions, and other information relevant to the

determination of adequacy ofthe modeling 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

record keeping/reporting requirements, where necessary, to ensure emission levels.

YES NO X N/A

(h) Compliance/enforcement strategies, including how compliancewill be detennined in

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

emissions monitoring (CEMs), pennit review, facility inspections, etc. to ensure that

air quality standards are not violated.

(i) Special economic and technical justification required by any applicable EPA policies,

or an explanation ofwhy such justifications are not necessary.

YES NO X N/A

No special economic and technical justifications required by other applicable

EPA policies are necessary because no such policies are relevant in this case.

5
ATTACHMENT A

Attachment A is a copy of the transmittal form required by the New Mexico State

Records Center to file a regulation or an amendment. The form is signed by the

AQCB Chair, Jens Deichmann. The date stamp at the top of the 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 list attachments

and Internet sire(s) if

applicable

1.

2

Public domain D

Name: Mr. Jens Deichmann Check if delegated

authority c:!J

~(}-L o te S gned
ATTACHMENT B

Attachment B is a copy of the amended sections of the current rule, with changes

indicated by redline-strikeout, as published in the New Mexico Register on

August 31,2009, Volume XX, Issue Number 16.
, ..

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1'. nr-!,': 1

~"-'l' , .. j .,r'-0t. . 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 C6unty Air 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 within Bernalillo county, which are located

on Indian lands over which the Albuquerque - Bernalillo county air quality control board lacks jurisdiction.

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

20,11.8.5 EFFECTIVE DATE: [Th••ffoeti.,. date of Part 8 i6,] July I, 2004, unless a later date is cited at

the end of a section. The effective date of a specific section is located at the end of each 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 under the State Rules Act, Chapter 14, Article 4 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 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 adopt applicable state Ambient Air Quality 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 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 permit 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

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 state Ambient Air Quality Standards of the environmental improvement board 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-hour average 40 CFR 50.8 I 9[,{l] oom I none I 8,7oom

i-hour average 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 NMAC
Annual 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-hour average 40 CFR 50.5 none 0.5 ppm none

Annual (arithmetic 40 CFR 50.4 0.03Q ppm none 0.02 ppm

mean)

Particulate Matler (PM,.)

-J

24-hour average 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

Particulate Matler (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 after date of area 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-hour average 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 of the rule amendments as published in the New Mexico

Register on 8/31/09 (Volume XX, Issue 16).

\..,~j - "

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..

1970 New Mexico Register / Volume XX, Number 16/ August 31,2009

ALBUQUERQUEBERNALILLO COUNTY

AIR QUALITY 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) pIC yidcd 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 ICsh icti oC 01 sh ingcnt

.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 of Albuque,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 effeeli Ie date of Pal I 8 i.,] July I,

2004, unless a later date is cited at the end

of a section. The effective date of a specific

section is located at the end of each 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 of a 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

available control 11.01.1.9, 10/1/02; A, 9114/09]

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 of mercury 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; 20.11.1.10 NMAC - Rn, 20 NMAC

MRCOG-mid-region council of SAE-socicty of automotive 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 Efficient Transportation 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 of units

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 of nitrogen U.S.-United States

No-number UV-ultraviolet

NOV-notice of violation 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 adopt applicable slate Ambient Air Quality

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

Standards ofthe environmental 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 summary mthe federal and state

standards incorporated in 20.11.8 NMAC.

[20.11.8.12 NMAC· N, 7/1/04; A, 9/14/09]

[Continued on page 1072]

1071
'.

11172

20.11.8.13

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

SUMMARY OF FEDERAL AND STATE AMBIENT AIR QUALITY STANDARDS:

Pollutant Standards

I Reference Federal Primary Federal Secondary New Mexico State

Carbon Monoxide (CO)

8-hour average I 40 CFR 50.8 9[06] ppm none I 8.7 ppm

I-hour average I 40 CFR 50.8 35 ppm none 113.1 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/m1 O.15ug/m;I none

(Effective I year after date of area attainment designation)

Hydrogen Solfide

I-hr average 20.2.3.110 NMAC none none 0.010 ppm

Total Reduced Sulfur

lIZ-hour average 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 of the Notice of Intent to 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 of Albuquerque, Petitioner

CITY OF ALBUQUERQUE'S NOTICE OF INTENT TO PRESENT TECHNICAL

TESTIMONY

,"

,-

Pursuant to 20.11.82 NMAC, Rulemaking Procedures - Air Quality Control Board, The

City ofAlbuquerque Environmental Health Department, Air Quality Division ("the Division")

hereby submits its Notice of Intent (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 of each 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 of Albuquerque's Environmental Health Department for 12 + years; the last eight of which

have been with the Air Quality Division. Chief responsibility is the promulgation of air quality

regulations for implementation within the County of Bernalillo.

Fabian Macias. Air Quality Assurance Manager, Air Quality Division. B.S. Chemistry,

New Mexico Highlands University. Employed by the City of Albuquerque's Environmental

Health Department, Air Quality Division for 8 years. Previously employed by the State of New

Mexico's, Air Quality Bureau (1995-200 I), as Ambient Air Monitoring Network Manager.

Chief responsibility is to manage the resources of the Air Quality Assurance Program within the

Air Quality Division, including both the Ambient Air Monitoring and Quality Assurance

Notice of Intent Page I of 5
Sections. Air Quality Assurance Program operations include data acquisition and validation of

ambient air pollution measurements within Bernalillo County.

Ken Lienemann. Air Monitoring Supervisor, Air Quality Division. M.S. Remote Sensing, B.S.

Mechanical Engineering. Employed by the City of Albuquerque's Environmental Health

Department, Air Quality Division for 3 years. Previously employed by the State of New

Mexico's Air Quality Bureau (200 I - 2006). Responsible for the operation ofthe Albuquerque

Bernalillo County air monitoring network, which consists of approximately 100 instruments at

10 distributed sites.

3. Summary and Estimated Duration of Testimony

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, General Provisions, and

20.1 1.8 NMAC, Ambient Air Quality Standards for the following reasons:

# I. The currently effective version of 20.11.1 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 Draft for 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 of Federal and State Ambient Air Quality 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 of Intent Page 2 of 5
It is anticipated that the hearing will take approximately I hour or less.

4. Text of Recommended 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, Ambient Air 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 of Exhibits

The Division has attached the following exhibits to this Notice of Intent:

Exhibit Number Title of Exhibit

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, Ambient Air Quality Standards;

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 air quality standard tor lead [Electronic];

AQD Exhibit 6 albic Public notices of hearing, including the legal advertisement ofthis hearing

in the Albuquerque Journal {6a} and the New Mexico Register {6b}, as

well as the 'Notice of Availability ofthe Public Review Draft' which was

Notice of Intent Page 3 of 5
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 of Rights

This Notice ofIntent to Present Technical 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 or public comment filed in this matter or to any

testimony or exhibit offered at the public hearing. The Division also reserves the right to call

any person as a rebuttal witness and to present any exhibit in support thereof.

Notice of Intent Page 4 of 5
Vevt.ijLl1J

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

I hereby 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 I Hearing 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 of Intent Page 5 of 5
'"

'"

ALBUQUERQUE-BERNALILLO COUNTY

AIR QUALITY CONTROL BOARD

PUBLIC HEARING

Proposal 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

August 12, 2009

Exhibits

",

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AQD Ex. # 1- Petition and PRD of20.11.1 NMAC,

General Provisions and 20.11.8 NMAC, Ambient

Air Quality Standards (5-22-09) , #1 a-PRD for

20.11.1 NMAC, General Provisions, #1b-PRD for

20.11.8 NMAC, Ambient Air Quality Standards

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

QUALITY STANDARDS, 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 of Albuquerque, Petitioner

.'.

'1

,'0

'.' J

I '

. -~ . - ,._--

.'

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

The Environmental Health Department ofthe City of Albuquerque, by and through the

Air Quality Division (AQD), asks the Albuquerque-Bernalillo County Air Quality

Control Board (Board) for a hearing at which the Board will hear AQD's request that the

Board adopt amendments to 20.1 L1 NMAC, General Provisions, and 20.1 1.8 NMAC,

Ambient Air Quality Standards, and submit these amendments to EPA as a revision to the

State Implementation Plan (SIP), This Petition includes a request for a hearing on these

matters and permission to provide a court reporter and hearing officer for 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) under NMSA 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, Ambient Air Quality Standards are attached as AQD Exhibit # Ia and

# Ib respectively.

2
Respectfully submitted,

, Isreal Tavarez

Environmental Engineering Manager

Air Quality Division

Environmental Health Department

City of Albuquerque

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 a hearing was delivered to the following

person on May 22, 2009.

Janice Amend

Air Quality Control Board Liaison

Air Quality Division

Environmental Health Department

City of Albuquerque

One Civic Plaza, NW, Room 3023

Albuquerque, New Mexico 87103

~~Isreal Tavarez-1 d~

3
20.11.1.4 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_ sf Paft I is,] December I, 1995, unless a later date is

cited at the end of a section. The effective date of a specific section is located at the end of that 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 or emisslon 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 of Albuquerque 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 of air pollution control

device(s) or process equipment.

B. ~'Administrator" means the administrator of the United States environmental protection agency

or his or her designee.

C. "Affected source" or "facility" means any stationary source, or any other source of air pollutants,

that must comply with an applicable requirement.

D. "Air agency", "department" or "EHD" means the environmental health department (EHD) of

the city of Albuquerque. The EHD, or its successor agency or authority, as represented by the department director

or his/her designee, is the lead air quality planning agency for the Albuquerque/Bernalillo county

nonattainmentlmaintenance area. The EHD serves as staff to 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 air pollution agent or combination ofsuch

agents, including any physical, 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 of any air pollutant; to the extent the EPA has identified such precursor or

precursors for the purpose for which the tenn "air pollutant" is used. This excludes water vapor, nitrogen (N2),

carbon dioxide (CO,), oxygen (a,), methane and ethane.

I

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20.11.1 NMAC Public Review Draft 5/22/09 I
F. ·~Air pollution" means the ~mission. except as such emission occurs in nature, imo the outdoor

2 atmosphere of one 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 of New 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 lacks jurisdiction.

11 I." Allowable emissions" means:

12 (I) Any dcpartment or federally enforceable pcrtnit term or condition which limits the quantity, rate,

] 3 or concentration of emissions of air pollutants on a continuous basis, including any requirements which limits the

14 level of opacity, 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 of issuance or r~newal of a permit 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 of the 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, of the federal

25 act.

26 (2) Any term or condition of any 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) of the 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 of the federal act;

33 (d) for consumcr and commercial products under Section 183(e) of the federal act;

34 (e) of the regulations promulgated to protect stratospheric ozone under Title VI of the 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) of the federal act.

37 (5) Any national or state ambient air quality standard.

38 (6) Any increment or visibility requirement under Part C of Title I of the federal act applicable to

39 temporary sources pertnitted pursuant to Section 504(e) of the 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 of air pollution ipment, or process equipment, which causes a process to not operate

45 in a normal manner. Failures that are 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 a single atom of carbon and a single atom of oxygen with a molecular weight of 28.0 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 of coal for the primary

52 purpose of producing heat or power by indirect heat transfer in which the products of combustion do not come into

53 direct contact with other materials.

54 P. "Commenced" means that an owner or operator has undertaken a continuous program of

55 construction or that an owner or operator has entered into a binding agreement or contractual obligation to undertake

56 and complete, within a reasonable time, a continuous program of construction or modification.

20.11.1 NMAC Public Review Draft 5/22/09 2
1 Q. ""Construction" means fabrication. ereetion. or installation of an 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 of the Albuquerque/Bernalillo county air quality control board.

7 T. '''Director'' means the administrative head of the 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, of emissions ofregulated air pollutants on a

12 continuous basis, including any requirements relating to the operation or maintenance of a 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 sf aft air J3slhttaflt 1ft eJESeSS sf aft emissisfl limit ar

17 !ltaftaara.] the emission of an air contaminant. including a fugitive emission. in excess of the 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 of the

20 department in 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 of the two states of matter, 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 of weight, which is equivalent to 0.0648 grams.

32 DD. "Hazardous air pollutant" means an air contaminant which has been classified pursuant to the

33 federal act, the Air Quality Control Act, or laws and regulations in effect pursuant to the act.

34 EE. ·'Hydrocarbons" or "HC" means any chemical compound of a class of aliphatic, cyclic, or

35 aromatic chemical compounds containing mostly hydrogen and carbon. Hydrocarbons are highly reactive in the

36 presence of nitrogen oxides and sunlight. All are precursors to more serious air pollutants such as ozone and

37 nitrogen dioxide.

38 FF. "'Hydrogen sulfide" or "'HzS" means the chemical compound containing two atoms of hydrogen

39 and one of .ulfur with a molecular weight of34.07 glmole.

40 GG. "Incinerator" means any furnace used in the process of burning 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/or concentrating of animal 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 weight of 207.19 glmole that is

46 hazardou. to health if breathed or swallowed.

47 KK. "'Malfunction" means any sudden and unavoidable failure of air pollution control equipment or

48 process equipment beyond the control ofthe owner or operator. including malfunction during startup or shutdown.

49 A failure that is caused entirely or in part by poor maintenance. 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 of operation of a

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 of any regulated

54 air contaminant not previously emitted. but does not include:

55 (I) a change in ownership of the source:

56 (2) routine maintenance. repair or replacement;

20,11.1 ~MAC Publie Review Draft 5/22/09 3
1 (3) installation of air pollution control equipment. and all related process equipment and materials

2 necessary for its operation. undertaken for the purpose of complying with regulations adopted by the environmental

3 improvement board 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. if such increase does not exceed the operating design

6 capacity of the source:

7 ......... Cb) an increase in the hours of operation; or

8 ec) use of an alternative fuel or raw material if. prior to January 6.1975. the source was capable

9 of accommodating such fuel or raw material. or if use of an alternate fuel or raw material is caused by any natural

10 gas curtailment or emergency allocation or any other lack ofsupply of natural gas. {N~1 AOCA1

II [1:,.b1MM,. "New source" means any stationary source, the construction or modification of which is

12 commenced after the filing of a 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 of nitrogen and two of oxygen with a molecular weight of 46.0 glmole.

15 [NNIOO. ~·Nitrogen oxides or NOx" is a class of chemicals 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 of nitrogen oxides are

18 NO, NOz, N03• N20 z, and NzOj. Nitrogen oxides are also referred to as oxides of nitrogen.

19 [()QIPP. "NMAC" means New Mexico administrative code, which contains the rules adopted by

20 all rulemaking agencies of the state of New Mexico and the rules adopted by the A-BC AQCB.

21 [IIPJQQ. "Open burning" means the combustion of any material without the following

22 characteristics:

23 (I) control of combustion air to maintain adequate temperature for efficient combustion;

24 (2) containment of the 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 of a source.

29 (SS)TT. ··Ozone or 0 3" means a pungent, colorless gas composed of molecules containing three atoms of

30 oxygen with a molecular weight of 48.0 g/mole.

31 ll+jUU. "Part" means [IRO .0g"lalioa ""meo. ia IRO ~IMAC]. the required NMAC designation

32 for the normal division of a chapter. A part cOruiists of a 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 of pathological

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 of permits, modifications, renewals or revisions authorizing

45 the construction or operation of a 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 of nitrogen 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 CFR Part 50, Appendix L, approved by the EPA.

20,11.1 NMAC Public Review Draft 5/22/09 4
1 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, or equivalent 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 of which may limit. capture, reduce, confine, or otherwise control

6 regulated air pollutants or convert for the purposes of control any regulated air pollutant to another form, another

7 chemical or another physical state. This includes, but is not limited to, sulfur recovery 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 of changing 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 of a

13 stationary source to emit any air contaminant under its physical and operational design. Any physical or operational

14 limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and

15 restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be

16 treated as part of its design if the 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 of nitrogen.

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 of all materials introduced into any specific process,

22 which causes any discharge of air 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 of hours in one complete operation from the beginning of any given process to the completion thereof, or

26 from the beginning to the completion of a 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 of the federal act; or

35 (4) any pollutant subject to a standard promulgated under Section 112 or any other requirements

36 established under Section 112 of the federal act.

37 000. "Responsible official" means one of the following:

38 (1) For a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge

39 of a principal business function, or any other person who performs similar policy or decision-making functions for

40 the corporation, or a duly authorized representative ofsuch person if the representative is responsible for the overall

41 operation of one or more 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 of authority 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 other public agency: either a principal executive officer or

49 ranking elected official. For the purposes ofthis regulation, a principal executive officer of a federal agency

50 includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of

51 the agency (e.g., a regional administrator of EPA).

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 under Title IV of the federal act or the

54 regulations promulgated thereunder are concerned, and for any other purposes under 40 CFR. Part 70.

55 PPP. ~'Shutdown" means the cessation of operation of any air pollution control equipment, or process

56 equipment [er presess fer eR)' pH",ese].

20.11.1 NMAC Public Review Draft 5/22109 5
I QQQ. [Reservcd]

2 RRR. [Reservcdl

3 SSS. "Smoke" means small gas-borne particles resulting from incomplete combustion, consisting

4 predominantly, but not exclusively, of carbon, 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 of the

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 of the volume of one cubic foot of gas at standard

19 conditions.

20 YYY. ~'Startup" means [the] setting into operation [ef] any air pollution control equipment, Q!..process

21 equipment reF ~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) of the 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 if they belong to the same industrial grouping, are located on one or more

27 contiguous or adjacent properties, and are under the control of the 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 of an applicable standard industrial classification (SIC) code as described in the standard industrial

30 classification manual. or if they have the same tirst three digits of an applicable north american industry

31 classification system fNAICSl code. {AQD:

32 AAAA. "Sulfur dioxide" or ~~S02" means a pungent, colorless, poisonous gas composed of molecules

33 containing a single atom ofsulfur and two atoms of oxygen with a molecular weight of 64.07 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 of a 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 of vision.

43 FFFF. ~'Volatile organic compounds" or hVOC" means any compound of carbon, [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 ne gligible 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 linear completely 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 6
1 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 sulfur bonds 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) or 40 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 if the 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 or operator to provide monitoring or testing methods and results

27 demonstrating, to the satisfaction of the enforcement authority, the amount of negligibly-reactive compounds in the

28 source's emiSSIOns.

29 (4) For purposes of federal 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 of the Act. or under 40 CFR Part 51, Subpart I or Appendix S. or under 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 if such determination is not reflected in any of the above provisions.

34 (5) The following compound(s) are VOC for purposes of all 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 of VOC emissions limitations or VOC content

37 requirements: t-butyl acetate.

38 (6) For the purposes of determining 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 of an aerosol coating is counted towards that product's

41 reactivity-based limit. Therefore, the compounds identified in Subsection FFFF of 20, II, I.7 NMAC as negligibly

42 reactive and excluded H·om EPA's definition of VOCs are to be counted towards a product's reactivity limit for the

43 purposes of determining compliance with California's aerosol coatings reactivity-based regulation.

44 (7) For the purposes of determining compliance with EPA's aerosol coatings reactivity based

45 regulation (as described in 40 CFR Part 59 - National Volatile Organic Compound Emission Standards fOr

46 Consumer and Commercial Products) any organic compound in the volatile portion of an 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 of 20, II, 1,7 NMAC as

49 negligibly reactive and excluded from EPA's definition of VOC are to be counted towards a product's reactivity

50 limit for the purposes of determining compliance with EPA's aerosol coatings reactivity-based national regulation.

51 as prOVIded in 40 CFR Part 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 7
I APCD-Air Pollution Control 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 Air Act (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 of Federal Regulations

19 CO,-carbon dioxide.

20 CO-carbon monoxide.

21 COG-Mid-Region Council of Governments

22 CMAQ-Congestion Mitigation and Air Quality

23 cu. In.-cubic inch(es)

24 DER-Discrete Emission Rcductlon

25 DOE-Department of Energy

26 DOT-U.S. Department of Transportation

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)

20.1 J.I NMAC Public Review Draft 5/22/09

8
1 km-kilometer(s)

2 kPa-kilopascal(s)

3 Ib.-pound(s)

4 [b/day-pounds per day

5 Ib-ft-pound-feet

6 Ib/br-pounds per hour

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 of Origin

16 "g-microgram

17 ,..g/m3-microgram per cubic meter

18 mg-milligram(s)

19 mgim'-milligram per cubic meter

20 mi.-mile(s)

21 min-minute(s)

22 ml-milliliter(s)

23 mm-millimeter(s)

24 MMBtu-million Btu

25 mmHg-millimeters of Mercury

26 mph-miles per hour

27 MPO-Metropolitan Planning Organization

28 MRCOG-Mid-Region Council of Governments

29 MSERC-Mobile Source Emission Reduction Credits

30 MSMTC-Mobile Source Modeling Technical Committee

31 MTBE-methyl tertiary butyl ether

32 MVD-Motor Vehicle 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 of Standards 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 of nitrogen

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 9
I OMTR-Open Market Trading Rule

2 OTAG-Ozone Transport Assessment Group

3 OTe-Ozone Transport Commission

4 Pb-Iead

5 PIC-Public Involvement Committee

6 PM-Particulate Matter

7 PM,.,-Particulate Matter Less Than 2.5 microns

8 PMIO-Particulate Matter Less Than 10 microns

9 ppm-parts per million by volume

10 ppm C-parts per million, carbon

II PSD-Prevention of Significant 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 vapor pressure

28 s-second(s)

29 SAE-Society of Automotive 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 of units

34 SIP-State Implementation Plan

35 SLAMS-State and Local Air Monitoring Station

36 SMOG-SMoke + tDG

37 SO,-Sulfur Dioxide

38 State DOT-New Mexico Department of Transportation

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 Task Group

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 10
1 VPMD-Vchicle Pollution Management Division

2 %-percent

3 "-degree(s)

4 [3121/77. . .111I2/X I, I I121/X I, 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 of a 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: If any 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 I 1,0l.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 11.0 I,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 af mafe 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 L I NMAC was derived from that previously filed with the

39 commission of public records - state records center and archives.

40 Resolution No. I, Air Pollution Control Regulations of The 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 Pollution Control Regulations, 3/24/82;

46 Regulation No. I, Resolution - Air Pollution Regulations, 6118/86;

47 Resolution No.2, Ambient Air Quality Standards of The Albuquerque Bernalillo County Air Quality Control Board,

48 8/6171;

49 Resolution No.2, Ambient Arr Quality Standards of The 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 11
Regulation No. 26, Interpretation, 3/24/82.

2

3 History of Repealed 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 of the 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 12
20.11.8.4 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 of the 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: If any 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 of 20.11.8 NMAC.

l20.11.8.9 NMAC - N, 7/1/04]

20.11.8.8 SAVINGS CLAlISE: Any amendment to Ambient Air Quality Standards. 20.11.8 NMAC, that 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 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 at 40 CFR

Part 50. and to adopt applicable state Ambient Air 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 lacks jurisdiction. -<

-, )

[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 of Albuquerque 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 of a section. The efTective date of a specific section is located at the end of each 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 under the State Rules Act. Chapter 14, Article 4 NMSA 1978.

[20.11.8.5 NMAC - N, 711/04]

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20.11.8 NMAC Public Review Draft 5/22/09 I
8-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 Amhient Air Quality Standards of the 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 of the 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, I L8, 13 NMAC is a summary of the federal and state standards incorporated in 20, I 1.8 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-hour average 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

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20,11.8 NMAC Public Review Draft 5/22/09 2
HISTORY 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 of these regulations limit, control or regulate the emissions of a particular air

contaminant, the more restrictive or stringent shall govern.

[20.11.8.14 NMAC - N, 7/1/04]

150 ~g1m' none

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 of area attainment designation)

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20.11.8 NMAC Public Review Draft 5/22109 3
AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

Daled: July 22. ~()05.

Stephen P. Metruck,

Captaill. u.s. Coast Cuurd, Cap/Hili ofrhe

Port. Puget Sound.

[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 of its 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 of Ozone Areas for

Which the 1-Hour Stsndard Has Been

Revoked snd Technical Correction to

Phase 1 Rule

~t.oD EXHIBIT f'""

.4_4,.4,.7,.O,....,,....,_F_.....d_...r..a_I..R....:g;.i...st,.....r.../...V,.o...I.....7...0.....N...... o=1..4...B../,.W....'"..jn...e...s..·d_a~y,....A=1l~gU.....SI.....:1....,.Z..O...IJ...5.../_R..I..11..e..S,.a...n..d=R_,~,g:'1l..I... al..i... o...nll 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 of emergency

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 of Form :\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 of Ihe

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 of the 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) of this [CGD13-05-029J The Captain of the 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) of this chapter). ACTION: Notice of enforcement. Pacific daylight time. All persons and ---- vessels are authorized to enter, move (2) Scope limitations. Any limitations SUMMARY: The Captain of the 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 Sea fair Unlimited 7, 2005 at B p.m. Pacific daylight time

taxpayer seeking 10 change its method of Hydroplane Race Special Local unless a new notice of enforcement is

accounting to comply with this section Regulation (SLR) and Sea fair 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) Audit protection. A taxpayer that through Sunday, August 7, 2005.

changes its method of accounting 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 if its method of accounting

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 of the Port Puget Sound,

Coast Guard Sector Seattle. 1519

(4) Section 481(a) adjustment. A Alaskan Way South, Seattle WA 98134

change in method of accounting to at (206) 217~232 to obtain information

conform to these temporary regulations concerning enforcement of this 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 of the Seattle Sea fair

temporary regulations. Unlimited Hydroplane races on the

waters of Lake 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 Sea fair Blue Angels Air

Show Performance.
Federal Register / Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations 44471

1 If 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 

44472 Federal Register / Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations 

of designation for the 8-hour standard 

(69 FR 23984, column 1). We 

erroneously neglected to change the 

regulatory text in this section. The 

purpose of the tables is to identify the 

areas subject to the anti-backsliding 

provisions. Since the anti-backsliding 

provisions apply based on an area’s 

status as of the time of designation for 

the 8-hour standard, this regulatory 

provision should indicate that the 

modified tables in subpart C of part 81 

will reflect each area’s status as of that 

date. 

III. What Happens to Subparts C and E 

of Part 81? 

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 available 

without 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. 

Federal Register / Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations 44473

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 and adopt the least costly, 

most cost-effective 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 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, enabling 

officials of 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 governments on compliance with 

the regulatory requirements. 

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. 

44474 Federal Register / Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations 

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 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:

Federal Register / Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations 44475

§ 81.302 Alaska.

* * * * *

Alaska—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 in 

Colorado 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:

44476 Federal Register / Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations 

§ 81.317 Kansas.

* * * * *

Kansas—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:

Federal Register / Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations 44477

§ 81.331 New Jersey.

* * * * *

New Jersey—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.

44478 Federal Register / Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations 

■ 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 Frederick 

County) 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 


pwalker on PROD1PC61 with RULES2

Tuesday, 

October 17, 2006 

Part II 

Environmental 

Protection Agency 

40 CFR Part 50 

National Ambient Air Quality Standards 

for Particulate Matter; Final Rule 

pwalker 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.gov Web 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.gov or 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 Carolina 

27711, 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 

Transition 

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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 

0.9 for 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 

1 The 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)]. 

2 Welfare 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 electronic form 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/

or from the EPA Region 6 office by contacting the person listed in the FOR FURTHER

INFORMATION CONTACT section of the New Mexico Federal Register(s) for this action.

pwalker 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 Rule 

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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.gov index. 

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.gov or 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 entities 

Industry ................................................................. 334513, 541380 Manufacturer, supplier, distributor, or vendor of ambient air monitoring instruments; analytical laboratories or other monitoring organizations that 

elect 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 their 

monitoring 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 elect 

to 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. 

1 North 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 (General 

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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 Stations 


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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 electronic form 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/

or from the EPA Region 6 office by contacting the person listed in the FOR FURTHER

INFORMATION CONTACT section of the New Mexico Federal Register(s) for this 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 '±:

Subpart Oo-Rhode Islan-.I _

• 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 of judicial 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 of Suhjects 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, VarneyI

RI!ginrHl! Administrator. EPA Now En.t:!nnd.

• Part 52 of chApter I, Litle 40 of the

Code of Federal Kegulations is amended

as follows:

report containing this rule Hnd other

required informution to !he U.S. Senate,

the u.s. House of Kepresentrdives, find

the Comptroller General of thfl United

States prior to publication of the 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) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

Stlltes Court of Appeals 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 of this final rule does

not affect Ihe finality of this rule for the

EPA 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-hour Ozone 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

of a 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 of this rule is

April 28. 2008.

FOR FURTHER INFORMATION CONTACT:

General questions concerning this

notice sbould be addressed to Mr. Larry

D. Wallace, PbD, Office of Air 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 of the 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 of failure to submit SIPs, or

elements of SIPs, 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:

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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 

1 EPA 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). 

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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 

2 It 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 that 

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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). 

3 While 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. 

4 The 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. 

5 The 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 the 

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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 and 

adopt 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 by 

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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 this 

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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 vessels 
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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 Rule 

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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.gov Web 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.gov or 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 

4:30 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 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 Data 
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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 rolling 

3-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 

1 The 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 electronic form 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/

or from the EPA Region 6 office by contacting the person listed in the FOR FURTHER

INFORMATION CONTACT section of the New Mexico Federal Register(s) for this 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 a pUblic 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:

I

Proposal to am and 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

I

SIP.

The AQO IS proposing to amend

20.11.1 NMAC, General Provisions, and 20.11.8 NMAC, Ambi- ent Air Quality Standards, for the

I

follOwing 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~ hold ns regular mon\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 Is the federaJly-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.?rally or '" 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 present teen-

"'-I testimony at tills hearing is I li:ed by 20.11.82.20 NMAC 0

! nil a written 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 a deSCription 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. or allaCh,

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 at the "Environmental Heatth Department Office. or by contactJng Ms. aAlce

Amend electronically at ja· mendOcabq.gov or by phone

(505) 768-260for by 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 of Rulemaking 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, 130 I 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 of NMED'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'airqual ity,:aqcb,'public~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 of the 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 of the direct testimony of each technical witness and state the

anticipated duration of the testimony of that

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 of reasons for adoptio~

of rules.

The AQD is proposing to amend 20.11.1

NMAC, General Provisions, and 20.11.8

NMAC, Ambienf Air 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 al ign

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 the Air Board to administer and enforce

the Clean Air Act 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 the basement level of

the Albuquerque-Bernalillo County Government Center, 400 Marquette Avenue NW, Albuquerque,

NM. The hearing will address:

Proposal 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.

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 of 20.11.1 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, 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 the Air Board to

administer and enforce the 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 a reasonable opportunity to submit relevant evidence, data, views,

and arguments, orally or in 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, Rulemaking Procedures -- Air Quality Control

Board.

Anyone intending to present technical testimony at this hearing is required by 20.11.82.20 NMAC to

submit a written Notice Of Intent to 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 deliver your 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 work background; 3.

summarize or include a copy ofthe direct testimony of each 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. list and describe, or attach, all exhibits anticipated to be offered by

that person at the hearing, including any proposed statement ofreasons for adoption ofrules.

In addition, written comments to be incorporated into the public record for this hearing 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 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, or by contacting Ms. Janice

Amend electronically at jamJ;nd@mbq.gov or by phone (505) 768-2601 or by downloading a copy

from the City of Albuquerque Air Quality Division website

http://'i'/Yiw.cabq.gov1air'lu'!hty!~b/p\lhli(;cIevie}\'_-drafts .

NOTICE FOR PERSON WITH DISABILITIES: If you have a disability andlor require 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

1
fmacias@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

2
aldaz@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

3
phalajian@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

4
jennifer.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

5
UNITED 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

Dear Mr. Butt:

Thank you for the opportunity to review and comment on proposed revisions to the New

Mexico Administrative Code, Title 20, Chaptcr 1 I, 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 air quality 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

Air Planning 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 of the Board. My name is

Neal Butt, and I work in the Control Strategies Section of the 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 of my

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, Ambient Air Quality

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 of hearing, including the legal advertisement ofthis

hearing in the Albuquerque Journal {6a} and the New Mexico

Register {6b}, as well as the 'Notice of Availability ofthe Public

Review Draft' which was sent to the Air Quality Announce List

Serve as well as a list of those individuals' e-mail addresses {6c}

AQD Exhibit 7 Comments received from EPA

AQD Exhibit 8 Direct Testimony 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 of 20.11.1 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, General Provisions. and

20.11.8 NMAC, Ambient Air 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

3
HEARING

TO AMEND

20.11.1 NMAC, GENERAL

PROVISIONS, AND 20.11.8 NMAC,

AMBIENTAIR QUALITY STANDARDS

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

'OD t::dr.bll 'Pee..... 10 AmCllt;1" ftllld N ~Ur

AlJI)EUft II PublJl:RC'Y'fo'Dratt latQCbcdk'.\QDE.d1lbn I: ........ rn~~10

10.111 mu.c.C1'#:twrrJj'rovu,",u:

/VJDI:1hbI lbPubbt:RC\K:W IlRft '.r1kbcd't' \QDJ:..\bibct ')me-...., ~alZJl:DdmaItJi'"

~l 11 Ii mi.-\C. JI",bm,1 A,r """lrr. Sk*lrrrLY

.o\QDExIlibll2 IlpJtl. FcdcD1Rq~No.I:...."C .. !ul1a~~N lK l«uamtnC'ut&JrqlA!Jry s~RJr(lmDe;

AOD£UibIt] 0Ct0bc:t"17._ Fe..knlR.ep1a'Nol:""'.dsllpJ1lksdlzl.&o~l)tbercdcnJ

ambdt•• ~hty3f.l:llda1:bGY"M U IFlearolllcl.

~~~~=i-.O=-~::'tS~~"'1IJdlaJpllmadluJtOmaklOlhc:kdenl

\00 tihilnl!' ~'mlbCJ I:!.. ~8 "eden! Rttl:Jk'J NrtlCt ... 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 Draft AaCllda..Au alty {"''CIt",t Bt"n:t. fl'of Au,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 cadi fled 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 of the City of Albuquerque, 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, Ambient Air Quality

Standards, and submit these amendments to

FPA as a revision to the Stale Implementation

Plan (SIP).

3
ALBUQUERQUE-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.:lcd to 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 of Petition to amend 20.11.1 NMAC, General Provisions and 20.11.8 NMAC,

Ambient Air Quality Standards

Regular Monthly Meeting Drart Agenda

CALL TO ORDER

Item #1

Item #2

Approval of Agenda (Chair)

Approval ofJuly 8, 2009 Meeting Minutes (Chair)

PUBLIC COMMENT

ACTION ITEMS

Item #3 Decision on matter of Petition to amend 20.11.1 NMAC, General Prol'isions and

20.11.8 NMAC, Ambient Air 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 of Air 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 of the 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 of each item. Each person will be given up to two minutes to speak.

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

pn)('t!ss, please cull J II (Voice) und ,pedal as.\'islunce will he made uvuiluhle to you to receil,t! uny pub/h' meeting

tlot.'umems, induding agenda." and mimlles. 'TTy usen' may request "pedal ussistunce by calling 1-8(){)-65Y1iJ3 L ••
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 between definitions in other parts, io which case the definition found io the applicable part shall govern. The

8 definitions include the measurements, abbreviations, and acronyms in Subsection GGGG, of 20.11.1. 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 of animal 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 of a principal business function, or any other person who performs similar policy or decision-making functions for

16 the corporation, or a duly authorized representative ofsuch person ifthe representative is responsible for the overall

17 operation of one or more manufacturing, production, or operating facilities applying for, or subject to a pennit and

18 either:

19 (a) the facilities employ more than 250 persons or have gross annual sales or expenditures

20 exceediog $25 million (in second quarter 1980 dollars); or

21 (b) the delegation of authority to such representativcs 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: either a principal executive officer or

25 ranking elected official; for the purposes of [tais reg!!latisH] 20.11.1 NMAC, a principal executive officer of a

26 federal agency includes the chief executive officer haviog responsibility for the overall operations of a priocipal

27 geographic unit ofthe agency (e.g., a regional administrator of EPA); or

28 (4) for an acid rain source:

29 i.!!L-the designated representative (as deflned in Section 402(26) of the federal act) io so far as

30 actions, standards, requirements, or prohibitions under Title IV ofthe federal act or the regulations promulgated

31 thereunder are concerned; and

32 (b) the designated representative for any other purposes under 40 CFR Part 70.

33

34 GGGG. "Measurements, abbreviations. and acronyms"

35 [APel> Air PslMis!! CSHlrsl Di>'isisH]

Staff Proposed Floor Amendments for 20.11.1 NMAC & 20.11.8 NMAC
Staff's Proposed Floor Amendments for 20.11.8 NMAC

20.11.8.8 SAVINGS CLAUSE: Any amendment to AmbientAir Quality Standards, 20.11.8 NMAC, [t!>atJ

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 permit 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]

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

20.11.8.13 SUMMARY OF FEDERAL AND STATE AMBIENT AIR QUALITY STANDARDS:

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

Staff Proposed Floor Amendments for 20.11.1 NMAC & 20.11.8 NMAC 2
Public 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, Ambient Air Quality

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 of the 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 of the "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 a facility'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, Ambient Air Quality Standards) into City's rule,

20.11.8.

1
ATTACHMENT E

Attachment E is a copy of the Hearing Record Transcript for the August 12. 2009

hearing.

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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 S ILFER

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

505-243-5018
1 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

505-243-5018
1 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

9
1 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

505-243-5018
1

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

505-243-5018
1 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

KATHY TOWNSEND COURT REPORTERS

505-243-5018
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

505-243-5018
1 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.

KATHY TOWNSEND COURT REPORTERS

505-243-5018
1 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

KATHY TOWNSEND COURT REPORTERS

505-243-5018
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

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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,

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1 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

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1 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

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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?

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1 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

KATHY TOWNSEND COURT REPORTERS

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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

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1 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

KATHY TOWNSEND COURT REPORTERS

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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

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1 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

KATHY TOWNSEND COURT REPORTERS

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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

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1 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

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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

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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

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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

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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

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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

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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

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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

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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

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1 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

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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

KATHY TOWNSEND COURT REPORTERS

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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

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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

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57
1 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

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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

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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

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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

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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

505-243-5018
1 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

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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

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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."

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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?

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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."

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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,

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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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1 MR. SULLIVAN: The fact that these are

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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.

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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.

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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.

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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.

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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.

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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?

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1

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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.)

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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.

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iAJi.JIJLm (\. <./ )~N"V'- ~ISE KOPAN, NM CCR #124 ~---- License Expiration: 12/31/09

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