State of New Mexico

Office ofthe Governor

Bill Richardson

Governor

December 26,2003

Mr. Richard E. Greene, Regional Administrator

U.S. Environmental Protection Agency, Region VI

1445 Ross Avenue, Suite 1200

Dallas, TX 75202-2733

SUBJECT: REQUEST FOR APPROVAL OF REVISION TO THE STATE

IMPLEMENTATION PLAN FOR AIR QUALITY

Dear Mr. Greene,

As provided by 40 CFR Part 51, Appendix V and 40 CFR Part 51, Subpart P, I am writing

to request approval 0 f t he attached documentation, which w ill serve as the basis for a

revision to the State Implementation Plan (SIP) for New Mexico. Specifically, I am

submitting documentation that will serve to fulfill requirements of 40 CFR 51.309,

known as the "Section 309 Regional Haze SIP element". Two companion regulations are

also being submitted. These are 20.11.21 NMAC, Open Burning and 20.11.46 NMAC,

Sulfur Dioxide Emissions Inventory Requirements; Western Backstop Sulfur Dioxide

Trading Program. The attached proposed SIP revision is applicable to Bernalillo County,

New Mexico.

The Albuquerque/Bernalillo County Air Quality Control Board (AQCB) approved these

proposed revisions to the SIP on November 12, 2003, after a public review period and

corresponding public hearings held on October 8, 2003 and November 12,2003. The two

regulations, 20.11.21 NMAC and 20.11.46 NMAC were filed at the New Mexiw Sfllf,e

Records Center. The effective date for these regulations is December 31, 20@.

believe that the submitted materials provide adequate documentation to sup~rtul,'e

requested SIP revision. ,,~

<..':) :' ,

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

I) SIP Completeness Checklists pursuant to 40 CFR 51, Appendix V

- -(J 7

(.")

"-, )

..-:-..,:

u,

0 r'0

'.:":

m

c

State Capitol • Room 400 • Santa Fe, New Mexico 87501 • 5°5-476-2200 • www.govemor.state.nm.us
-2-

2) Hearing records, including transcripts and exhibits

3) Comments received

December 24,2003

4) The final AQCB-approved SIP revision for Regional Haze, including the

two companion regulations.

5) Other supporting documentation

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

please contact Alfredo Santistevan, Director 0 f t he Albuquerque Environmental Health

Department, at (505) 768-2600.

Sincerely,

Bill Richardson

Governor

State ofNew Mexico

cc: Alfredo Santistevan, Director, Albuquerque Environmental Health Department

Sandra Ely, Chief, Air Quality Bureau, New Mexico Environment Department

Enclosures
SUBMITTAL LETTER FROM EHD DIRECTOR TO

GOVERNOR
,

I

Cily 0'tJl.l6'IUJ.uerque

P.O. BOX 1293 ALBUQUERQUE. NEW MEXICO B7103

November 28, 2003

Honorable Bill Richardson

Governor

State ofNew Mexico

Governor's Office

Capitol Building, 41h Floor

Santa Fe, NM 87503

SUBJECT: REQUEST TO SUBMIT TO THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY (EPA) A PROPOSED REVISION

TO THE STATE IMPLEMENTATION PLAN' (SIP) FOR AIR QUALI1Y,

INCORPORATING THE "SECTION 309 REGIONAL HAZE STATE

IMPLEMENTATION PLAN ELEMENT" AND REQUEST FOR EPA APPROVAL

Dear Governor Richardson,

I am writing to you to request your assistance in submitting the attached documentation to

the U. S. Environmental Protection Agency to serve as the basis for a revision to the air

quality State Implementation Plan (SIP) for New Mexico as provided by 40 CFR Part 51,

Appendix V and 40 CFR Part 51, Subpart P. Specifically, I am asking for you to submit

the attached documentation as a proposed SIP revision to satisfy federal Regional Haze

requirements found at Section 51.309 ofTitle 40 ofthe Code ofFederal Regulations. It is

imperative that this proposed SIP revision be received at the Region 6 U. S.

Environmental Protection Agency offices in Dallas, Texas no later than December 31,

2003. If you agree to submission of the proposed SIP revision, the request should be

forwarded to the Environmental Protection Agency with a request for their approval.

The New Mexico Air Quality Control Act delegated air quality jurisdiction within the City

of Albuquerque and Bernalillo County to the AlbuquerquelBernalillo County Air Quality

Control Board (AQCB). The AQCB approved the proposed revisions to the SIP on

November 12, 2003, after a public review period and corresponding public hearings held

on October 8, 2003 and November 12, 2003. The AQCB regulations and proposed SIP

= THE CITY OF ALBUQUERQUE IS AN EQUAL OPPORTUNITYI REASONABLE ACCOMMODATION EMPLOYER =
revision parallels the New Mexico Environmental Improvement Board (Em) Regional

Haze regulations and proposed SIP revisions that have been approved by the Em. The

two AQCB regulations, 20.11.21 NMAC and 20.11.46 NMAC were filed at the New

Mexico State Records Center. The effective date for these regulations is December 31,

2003. We believe that the submitted materials provide adequate documentation to support

the requested SIP revision.

The Section 309 Regional Haze State Implementation Plan Element will put in place a

long-term strategy that is intended to improve the visibility in federal Class 1 Areas. Class

1 Areas include national parks, national monuments, larger federal wilderness areas and

some wildlife refuges. The goal is to greatly improve visibility in Class 1Areas such as

Grand Canyon National Park, Mesa Verde National Monument, San Pedro Parks

Wilderness, and Bandelier National Monument by the year 2064. The attached

documentation applies to the time period between December 31, 2003 and December 31,

2018 and addresses only the 16 federal Class 1 Areas on the Colorado Plateau. Additional

SIP revisions will be needed in the future to address other federal Class 1 Areas and later

time periods.

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 transcript and exhibits

3) Public comments and responses

4) The final AQCB-approved SIP revision for Regional Haze, including the

companion regulations.

5) Other supporting documentation
I

•

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

please contact me or Dan Warren ofmy staff at (505) 768-2600.

Sincerely,

Alfredo

2-

Santistevan

Director

Albuquerque Environmental Health Department

cc: ~tephen Pilon, M.D., Chairman, AQCB

Isreal Tavarez, Manager, Air Quality Division

Enclosures
REVISION TO THE NEW MEXICO STATE IMPLEMENTATION PLAN (SIP)

PERTAINING TO 20.11.46 NMAC, SULFUR DIOXIDE EMISSIONS INVENTORY

REOUIREMENTS; WESTERN BACKSTOP SULFUR DIOXIDE TRADING PROGRAM

December 2003

SIP COMPLETENESS CHECKLIST

for regular processing

(per 40 CFR 51 Appendix V)

2.1 Administrative Materials

(a) A fonnal 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

The package is being sent to EPA with a formal submittal letter from the

Governor ofthe state ofNew Mexico.

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

issued the pennit, order, consent agreement (hereafter "document") in final form. That

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 Albuquerque/Bernalillo County Air Quality Control Board (AQCB) adopted

the regulation 20.]].46 NMAC Sulfur Dioxide Emissions Inventory Requirements:

Western Backstop Sulfur Dioxide Trading Program at a regular meeting on

NovemberI2/h

, 2003, following a public hearing held on the same date. Attachment A

contains a copy ofthe regulation.

The abovementioned regulation was filed with the New Mexico State Records

Center on December 1st, 2003 and will become effective on December 31", 2003. The

date stamp at the top of the page indicates the date of transmittal. Attachment B

contains a copy ofthe NMAC Transmittal Form signed by AQCB Chairman Dr.

Stephen Pilon.

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

implement the plan.

X YES NO NfA

See Attachment C. The New Mexico Air Quality Control Act provides for

Regulation in 74-2-5.1 andfor Plan Revisions in 74-2-5.2.

Page I of5
(d) A copy ofthe 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 of the official State

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

that it is fully enforceable by the State. The effective date of the regulation/document

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

X YES NO N/A

Attachment B contains a copy of the NMAC Transmittal Form pertaining to

20.11.46 NMAC Sultur Dioxide Emissions Inventory Requirements: Western Backstop

Sulfur Dioxide Trading Program. The date stamp in the upper right-hand corner of the

regulation indicates that the regulation is fully enforceable by the state. A copy of the

actual regulation can be found in Attachment A. This new regulation will be published on

December I5, 2003 in the New Mexico Register, Volume XlV, Issue Number 23.

(e) Evidence that the State followed all of the procedural requirements of the State's laws

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

X YES NO N/A

See Hearing Exhibits #4, 5 and 6 in Attachment D. These provide evidence that

notices were published in the local newspapers and the New Mexico Register. The New

Mexico Air Quality Control Act 74-2-6C requires a 3D-day notice.

(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 Hearing Exhibits #4, 5 and 6 in Attachment D. These provide evidence that

notices were published in the local newspaper and the New Mexico Register. The New

Mexico Air Quality Control Act 74-2-6C requires a 3D-day notice.

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

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

X YES NO N/A

See transcriber's certification at the end of the hearing record transcripts in

AttachmentE.

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

X YES NO N/A

No public comments were received.

Page 2 of5
2.2 Technical Support

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

.-2LYES NO N/A

The goal ofthe federal Regional Haze mandate is to restore natural visibility

conditions in federal Class I Areas by 2064. Visibility impairment is caused primarily

by emissions of sulfur dioxide (S02), oxides of nitrogen (NOx), volatile organic

compounds (VOCs) and particulate matter (PM). Molecules from these pollutants and

others combine to form regional haze.

The regulation 20.11.46 NMAC, Sulfur Dioxide Emissions Inventory

Requirements: Western Backstop Sulfur Dioxide Trading Program. which addresses

S02. is the backbone of the regional haze program. The regulation establishes a

program to track and control S02 emissions from stationary sources that emit 100 tons

per year or more ofS02.

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

nonattainment designation ofthe locations and the status of the attainment plan for the

affected area(s).

---.2L YES NO N/A

The regulation 20.11.46 NMAC, Sulfur Dioxide Emissions Inventory

Requirements: Western Backstop Sulfur Dioxide Trading Program does not pertain to

carbon monoxide (CO), the pollutant for which Albuquerque/Bernalillo County has

been classified as a maintenance area. Because this regulation pertains to S02, it does

not affect the Bernalillo County CO maintenance area. Bernalillo County is designated

as attainmentfor S02.

Should it ever be triggered, the Western Backstop Sulfur Dioxide Trading

Program could potentially affect two stationary sources in Bernalillo County, which is

the jurisdiction of the Albuquerque/Bernalillo County Air Quality Control Board

(AQCB). The two sources are the GCC Portland Cement plant in Tijeras Canyon and

the City ofAlbuquerque's Liquid Waste Treatment Plant, located at 4210 Second St. SW

in Albuquerque's South Valley.

(c) Quantification of the 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 of the differences between certain baseline levels and allowable emissions

anticipated as a result ofthe revision.

X YES NO _N/A

This plan revision for the regulation 20.11.46 NMAC, Sulfur Dioxide Emissions

Inventory Requirements: Western Backstop Sulfur Dioxide Trading Program does not

Page 3 of5
apply to identified plan-allowable emissions for sources in Bernalillo County at the

individual source level, though it does specifY allowable actual S02 emissions on a total

regional basis should the Western Backstop Sulfur Dioxide Trading Program ever be

triggered. Therefore, quantification ofthe changes in plan-allowable emissionsfrom the

potentially affected sources is not applicable here.

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

significant deterioration increments, reasonable further progress demonstration, and

visibility, as applicable, are protected if the plan is approved and implemented. For all

requests to redesignate an area to attainment for a national primary ambient air quality

standard, under section 107 of the Act, a revision must be submitted to provide for the

maintenance of the national primary ambient air quality standards for at least 10 years

as required by section 175A ofthe Act.

NO __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 prevention of

significant deterioration (PSD) increments and demonstrations ofreasonable further

progress. If ever triggered, the regulation 20.11.46 NMAC, SulfUr Dioxide Emissions

Inventory Requirements: Western Backstop Sulfur Dioxide Trading Program will

establish a program to work toward meeting the goal ofthe regional haze mandate-to

restore the federal Class I Areas to natural visibility conditions by 2064.

The technical informqtion regarding demonstrating visibility conditions is

contained in Chapter 4 of the document Section 309 Regional Haze State

Implementation Plan (SIP) Element: Albuquerque/Bernalillo County. New Mexico.

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

output data, models used, justification of model selections, ambient monitoring data

used, meteorological data used, justification for use of offsite data (where used), modes

of models used, assumptions, and other information relevant to the determination of

adequacy ofthe modeling analysis.

--X-.YES NO N/A

The Western Regional Air Partnership (WRAP) has produced and compiled

technical information to support the goal ofthe regional haze mandate. In cooperation

with the EPA, the WRAP has conducted air quality modeling for the various pollutants

which interact to form regional haze"S02, NOx, VOCs and PM. The results of these

analyses demonstrate that, with the control programs in place, visibility is expected to

improve during the first planning period of2003-2018. The WRAP's Technical Support

Document (TSD) is accessible online to the public at http:// www. wrapair.org. The

basic summary of the WRAP work is contained in the Appendices to the document

Section 309 Regional Haze State Implementation Plan (SIP) Element:

Albuquerque/Bernalillo County. New Mexico.

Page 4 0[5
(f) Evidence, where necessary, that emission limitations are based on continuous emission

reduction technology.

YES NO ---.2LN/A

The S02 emission milestones specified in the Regional Haze Rule will serve as

emissions limitations should the Western Backstop Sulfur Dioxide Trading Program

ever be triggered. Since these emissions limitations are regional totals that all

participants must meet together, evidence to demonstrate that emission limitations at

the individual source level are based on continuous emission reduction technology is

unnecessary here.

(g) Evidence that the plan contains emission limitations, work practice standards and record

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

---.2LYES NO _N/A

To ensure emission levels, the regulation 20.11.46 NMAC, Sulfur Dioxide

Emissions 1nventorv Requirements: Western Backstop Sulfur Dioxide Trading Program

contains specific emission reporting and tracking requirementsfor S02 emissions. Jfthe

Western Backstop Sulfur Dioxide Trading Program is ever triggered, the emission

reporting and tracking requirements become more complex and stringent than in the

pre-trigger phase ofthe program.

(h) Compliance/enforcement strategies, including how compliance will be determined in

practice.

---.2LYES NO N/A

The regulation 20.11.46 NMAC, Sulfur Dioxide Emissions Inventory

Requirements: Western Backstop Sulfur Dioxide Trading Program contains provisions

for compliance and enforcement. Refer to 20.11.46.9 NMAC.

Jf ever triggered, compliance with the Western Backstop S02 Trading Program

will be determined on a regional basis by comparing actual regional S02 emissions

from the participating states and tribes to the emissions milestones established in the

Regional Haze Rule.

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

an explanation ofwhy such justifications are not necessary.

YES NO ---.2LN/A

No special economic and technical justifications required by other applicable

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

Page 5 of 5
ATTACHMENT A
Albuquerque I Bernalillo County Air Quality Control Board

,

I

".

l

1.24.10 NMAC

NMAC TRANSMITTAL FORM

20D3 DEI - I pr,; 3: [ I

New W Amendment D Renumber D

Title

Environmental Protection

Repeal CJ Emergency D

C"""";;"..--,-,.".--..,..",,...,,..,,....,,..,.,.,.,,..------

'-""'C.!:ll=~~~"""'-'--"'---'--____:.... II!~<:!J.;:·'~ff~ttt~jJ~~:j12/31/03

Reference / Internet site

No Yes X

Please list atuchments

and Internet sire(s) If

appliCiJble

1. Section 309 Regional Haze State Implementation Plan

Element: Albuquerque / Bernalillo County, NM

2

3.

NoD vesD Public domain 0

.16::Cegal c1tatl"h(sftfiat aHow, .t"e#$Y!!JiJ'~gerlqo re '

r;t"ul~tJc;ns;on:thi$iLllf~c:t' "rp\il~ttall,thilta"': I'" • New Mexico Air Quality Control Act, NMSA 1978 Section 74-2-4, 74-2-5.C, the Joint Air Quality

Control Board Ordinance, Bernalillo County Ordinance 94-5 Section 4; and the Joint Air Quality

Control Board Ordinance Revised Ordinances of Albu uer ue 1994 Section 9-5-1-4.
•

I

Name:

Title:

Dr. Stephen Pilon

Signatu}'e

Check If delegated

authority0

11/12/03

Date Signed
ATTACHMENTB
A copy of the sections of the New Mexico Air Quality Control Act with this

submittal is available for public inspection in this Regulations.gov web site

in the following documents:

Docket ID Document ID Pages

EPA-R06-OAR-2005-NM-0001 EPA-R06-OAR-2005-NM-0001-0001 16 to 41

EPA-R06-OAR-2005-NM-0001 EPA-R06-OAR-2005-NM-0001-0003 18 to 43

EPA-R06-OAR-2005-NM-0001 EPA-R06-OAR-2005-NM-0001-0004 14 to 39

EPA-R06-OAR-2005-NM-0001 EPA-R06-OAR-2005-NM-0001-0005 12 to 37

EPA-R06-OAR-2005-NM-0003 EPA-R06-OAR-2005-NM-0003-0003 15 to 40

EPA-R06-OAR-2005-NM-0003 EPA-R06-OAR-2005-NM-0003-0004 14 to 49
ATTACHMENT C
FILED WITH

STATE R[COR.OS CENTER

zn03 DEC - I PH 3: I I

TITLE 20 ENVIRONMENTAL PROTECTION

CHAPTER 11 ALBUQUERQUEIBERNALILLO COUNTY AIR QUALITY CONTROL BOARD

PART 46 SULFUR DIOXIDE EMISSIONS INVENTORY REQUIREMENTS; WESTERN

BACKSTOP SULFUR DIOXIDE TRADING PROGRAM

20.11.46.1 ISSUING AGENCY: Albuquerque/Bemalillo County Air Quality Control Board, P.O. Box

1293, Albuquerque, New Mexico 87103.

[20.11.46.1 NMAC-N, 12/31/03]

20.11.46.2 SCOPE:

A. This Part is applicable to all geographic areas within BernalillO county, New Mexico and within

the jurisdiction ofthe Albuquerque/Bernalillo county air quality control board.

B. Exempt: This Part does not apply to sources within Bernalillo county that are located on Indian

lands over which the Albuquerque/Bemalillo county air quality control board lacks jurisdiction.

[20.11.46.2 NMAC - N, 12/31/03]

20.11.46.3 STATUTORY AUTHORITY: This part is adopted pursuant to the authority provided in the

New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4, 74-2-5; the Joint Air Quality Control Board

Ordinance; Bernalillo County Ordinance No. 94-5, Sections 4 and 5; and the Joint Air Quality Control Board

Ordinance, Revised Ordinances ofAlbuquerque 1994 Sections 9-5-1-3 and 9-5-1-4.

[20.11.46.3 NMAC - N, 12/31/03]

20.11.46.4 DURATION: Permanent, except as provided in Section 20.11.46.5 NMAC.

[20.11.46.4 NMAC - N, 12/31/03]

20.11.46.5 EFFECTIVE DATE: December 31, 2003, except where a later date is cited at the end of a

section, or as provided in 20.11.46.10 NMAC. However, if the EPA disapproves the Section 309 Regional Haze

State Implementation Plan Element: Albuquerque/Bernalillo County, New Mexico this entire Part will no longer be

effective on the date of official notification by the EPA to the Governor ofNew Mexico that the Section 309

Regional Haze State Implementation Plan Element: Albuquerque/Bernalillo County, New Mexico has been

disapproved.

[20.11.46.5 NMAC - N, 12/31/03]

20.11.46.6 OBJECTIVE:

A. 20.11.46 NMAC implements the western backstop SO, trading program ("WEB trading

program") provisions required under the federal Regional Haze Regulation, 40 CFR 51.309, the

Albuquerque/Bemalillo county element ofthe state ofNew Mexico's regional haze implementation plan and related

requirements associated with the time period prior to the WEB trading program trigger date.

B. Nothing in 20.11.46 NMAC waives any requirement otherwise in effect or subsequently required

under another program, including regulations governing new sources.

[20.11.46.6 NMAC - N, 12/31/03]

20.11.46.7 DEFINITIONS: In addition to the defmitions in 20.11.46.7 NMAC, the definitions in 20.11.1

NMAC apply unless there is a conflict between definitions, in which case the definition in this part shall govern.

A. "Account certificate of representation" means the completed and signed submission required to

designate an account representative for a WEB source or an account representative for a general account.

B. "Account representative" means the individual who is authorized through an account certificate

ofrepresentation to represent owners and operators ofthe WEB source with regard to matters under the WEB

trading program or, for a general account, who is authorized through an account certificate ofrepresentation to

represent the persons having an ownership interest in allowances in the general account with regard to matters

concerning the general account.

C. "Act" means the federal Clean Air Act, as amended, 42 V.S.c. 7401, et seq.

D. "Actual emissions" means the total annual sulfur dioxide emissions determined in accordance

with 20.11.46.16 NMAC, or detennined in accordance with 20.11.46.9 NMAC for sources that are not subject to

20.11.46.16 NMAC.

20.11.46 NMAC
E. "Air quality control board" or"AQCB" means the Albuquerque/Bernalillo county air quality

control board.

F. "Allocate" means to assign allowances to a WEB source through Section F(I) ofChapter VI of

the SO, milestones and backstop trading program implementation plan element.

G. "Allowance" means the limited authorization under the WEB trading program to emit one ton of

SO, during a specified control period or any control period thereafter subject to the terms and conditions for use of

unused allowances as established by 20.11.46 NMAC.

H. "Allowance limitation" means the tonnage ofS02 emissions authorized by the allowances

available for compliance deduction for a WEB source for a control period under 20.11.46.19 NMAC on the

allowance transfer deadline for that control period.

I. "Allowance tracking system" means the system developed by the department where allowances

under the WEB trading program are recorded, held, transferred and deducted.

J. "Allowance tracking system account" means an account in the allowance tracking system

established for purposes ofrecording, holding, transferring, and deducting allowances.

K. "Allowance transfer deadline" means the deadline established in Subsection B of 20.11.46.17

NMAC when allowances must be submitted for recording in a WEB source's compliance account in order to

demonstrate compliance for that control period.

L. "Compliance account" means an account established in the allowance tracking system under

Subsection A of 20.11.46.15 NMAC for the purpose ofrecording allowances that a WEB source might hold to

demonstrate compliance with its allowance limitation.

M. "Compliance certification" means a submission to the department by the account representative

as required under Subsection B of 20.11.46.19 NMAC to report a WEB source's compliance or noncompliance with

20.11.46 NMAC.

N. "Control period" means the period beginning January I of each year and ending on December 31

of the same year, inclusive.

O. "Emission report" or "inventory" means a listing, by source, ofthe amount of air pollutants

discharged into the atmosphere.

P. "Emissions tracking database" means the central database where SOl emissions for WEB

sources as recorded and reported in accordance with 20.11.46 NMAC are tracked to determine compliance with

allowance limitations.

Q. "Emission unit" or "unit" means any part of a stationary source that emits or would have the

potential to emit any pollutant regulated pursuant to the Clean Air Act.

R. "Existing source" means, a stationary source that commenced operation before the program

trigger date.

S. "Fugitive emissions" are those emissions that could not reasonably pass through a stack,

chinmey, vent, Or other functionally equivalent opening.

T. "General account" means an account established in the allowance tracking system under

20.11.46.15 NMAC for the purpose ofrecording allowances held by a person that are not to be used to show

compliance with an allowance limitation.

U. "Milestone" means the maximwn level of stationary source regional sulfur dioxide emissions for

each year from 2003 to 2018, established according to the procedures in Section A of the SO, milestones and

backstop trading program implementation plan.

V. "New source set-aside" means a pool of allowances that are available for allocation to new

sources in accordance with the provisions of Section F(3) ofChapter VI of the SO, milestones and backstop trading

program implementation plan element.

W. "New WEB source" means a WEB source that commenced operation on or after the program

trigger date.

x. "Owner or operator" means any person who is an owner or who operates, controls or supervises

a WEB source, and includes but is not be limited to any holding company, utility system or plant manager.

Y. "Part" means an air quality control regulation under Title 20, Chapter II ofthe New Mexico

administrative code, unless otherwise noted, as adopted or amended by the AQCB.

Z. "Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant

under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit

an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or

amount of material combusted, stored or processed, shall be treated as part of its design if the limitation is

enforceable by the EPA administrator.

20.11.46 NMAC 2
".

AA. "Program trigger date" means the date that the department determines that the WEB trading

program has been triggered in accordance with the provisions ofSection D ofChapter VI ofthe SO, milestones and

backstop trading program implementation plan element.

BB. "Program trigger years" means the years shown in Table 3, column 3, ofthe SO, milestones and

backstop trading program implementation plan element for the applicable milestone ifthe WEB trading program is

triggered as described in Chapter V(D) ofthe SO, milestones and backstop trading program implementation plan

element.

ce. "Renewable energy resource" means a resource that generates electricity by non-nuclear and

non-fossil technologies that results in low or no air emissions. The term includes electricity generated by wind

energy technologies; solar photovoltaic and solar thermal technologies; geothermal technologies; technologies based

on landfill gas and biomass sources, and new low-impact hydropower that meets the low-impact hydropower

institute criteria. Biomass includes agricultural, food and wood wastes. The term does not include pumped storage

or biomass from municipal solid waste, black liquor, or treated wood.

DD. "Retired source" means aWEB source that has received a retired source exemption as provided

in Subsection E of 20.11.46.11 NMAC. Any retired SOurce resuming operations under Subsection E of 20.11.46.11

NMAC, must submit its exemption as part ofits registration materials.

EE. "Serial number" means, when referring to allowances, the unique identification number assigned

to each allowance by the tracking systems administrator, in accordance with Subsection B of 20.11.46.14 NMAC.

FF. "SO, emitting unit" means any equipment that is located at a WEB source and that emits SO,.

GG. "SO, milestones and backstop trading program implementation plan element" means Section

F ofChapter VI ofthe Section 309 Regional Haze State Implementation Plan Element: Albuquerque/Bernalillo

County. New Mexico adopted by the AQCB On November 12, 2003.

HH. "Stationary source" means any building, structure, fucility or installation that emits or may emit

any air pollutant subject to regulation under the Clean Air Act.

II. "Submit" means sent to the appropriate authority under the signature ofthe account

representative. For purposes of determining when something is submitted, an official U.S. postal service postmark,

or equivalent electronic time stamp, shall establish the date ofsubmittal.

JJ. "Ton" means 2000 pounds and, for any control period, any fraction ofa ton equaling 1000

pounds or more shall be treated as one ton and any fraction of a ton equaling less than 1000 pounds shall be treated

as zero tons.

KK. "Tracking system administrator" means the person designated by the department as the

administrator ofthe allowance tracking system and the emission-tracking database.

LL. "WEB source" means a stationary source that meets the applicability requirements of

20.11.46.11 NMAC.

MM. "Western backstop sulfur dioxide (SO,) trading program" or "WEB trading program"

means all sections of 20.11.46 NMAC, but not Section 20.11.46.9 NMAC, triggered as a backstop in accordance

with the provisions in the SO, milestones and backstop trading program implementation plan element to ensure that

regional S02 emissions are reduced.

[20.11.46.7NMAC-N,12/31/03]

20.11.46.8 VARIANCES: No variances will be granted from requirements ofthis part.

[20.11.46.8 NMAC - N, 12/31/03]

20.11.46.9 EMISSION TRACKING REQUIREMENTS FOR SULFUR DIOXIDE EMISSION

INVENTORIES: Begimting with the 2003 emission inventory, all stationary sources with actual emissions of one

hundred (100) tons per year or more ofsulfur dioxide in the year 2000, or in any subsequent year, shall submit an

annual inventory ofsulfur dioxide emissions. A source that meets these criteria, and then emits less than 100 tons

per year in a later year shall submit a sulfur dioxide inventory for tracking compliance with the regional sulfur

dioxide milestones until the western backstop sulfur dioxide trading program has been fully implemented and

emission tracking has occurred under 20.11.46.16 NMAC.

A. All sources meeting the criteria inunediately above in 20.11.46.9 NMAC will be subject to the

following federally enforceable provisions:

(1) submit an annual inventory of sulfur dioxide emissions;

(2) document the emissions monitoring/estimation methodology used, and demonstrate that the

selected methodology is acceptable under the inventory program;

(3) include emissions from start up, shut down, and upset conditions in the annual total inventory;

20.11.46 NMAC 3
(4) use 40 CFR Part 75 methodology for reporting emissions for all sources subject to the federal acid

rain program;

(5) maintain all records used in the calculation ofthe emissions, including but not limited to the

following:

(a) amount offuel consumed;

(b) percent sulfur content offuel and how the content was determined;

(c) quantity ofproduct produced;

(d) emissions monitoring data;

(e) operating data; and

(I) how the emissions are calculated.

(6) maintain records of any physical changes to facility operations or equipment, or any other

changes that may affect the emissions projections; and

(7) retain records for a minimum of 10 years from the date of establislunent, or ifthe record was the

basis for an adjustment to the milestone, five years after the date of an implementation plan revision, whichever is

longer.

B. Reporting Requirements.

(1) Except as provided in Paragraph (2) of Subsection B of20.11.46.9 NMAC, the owner or operator

shall submit the emission report by April I each year immediately following the year for which the source is

required to report emissions data.

(1) Sources for which a date for submitting an annual emission report is specified in a current

operating permit issued under 20.11.42 NMAC, Operating Permits, shall submit such report on the date specified in

the permit. The Department shall provide a copy ofthe previous emissions report upon request by the owner or

operator ofsuch source.

C. Emissions report contents shall include.

(1) The name, address, and physical location ofthe stationary source;

(2) The name and telephone number ofthe person to contact regarding the emissions report;

(3) A certification signed by the owner, or operator, or a responsible official as defmed in 20.11.42

NMAC attesting that the statements and information contained in the emissions report are true and accurate to the

best knowledge and belief ofthe certifying official, and including the full name, title, signature, date ofsignature,

and telephone number ofthe certifying official. For sources subject to 20.11.42 NMAC, the certification shall be

made as required under 20.11.42 NMAC;

(4) smelters shall submit an annual report ofsulfur input, in tons/year;

(5) for each emission point additional information may be required by the department:

(a) stack and exhaust gas parameters;

(b) type of control equipment and estimated control efficiency;

(c) schedule ofoperation;

(d) estimated actual emissions, including fugitive emissions and emissions occurring during

maintenance, start-ups, shutdowns, upsets, and downtime, ofsulfur oxides, in tons per year, and a description ofthe

methods utilized to make such estimates, including calculations;

(e) the annual process or fuel combustion rates; and

(I) the fuel heat, sulfur, and ash content.

D. The department shall retain emission inventory records for non-utilities for 1996 and 1998 until

the year 2018 to ensure that changes in emissions monitoring techniques can be tracked.

[20.11.46.9 NMAC " N, 12/31/03]

20.11.46.10 WEB TRADING PROGRAM TRIGGER:

A. Except as provided in Subsection B of 20.11.46.1 0 NMAC, Sections 20.11.46.11 NMAC through

20.11.46.22 NMAC shall become effective on the program trigger date that is established in accordance with the

procedures outlined in the SO, milestones and backstop trading program implementation plan element.

E. 20.11.46.20 NMAC, Special Penalty Provisions for the Year 2018 Milestone, shall become

effective on January 1,2018 and shall remain effective until the provisions of20.11.46.20 NMAC have been fully

implemented.

[20.11.46.lONMAC-N,12/31/03]

20.11.46.11 WEB TRADING PROGRAM APPLICABILITY

20.11.46 NMAC 4

,"
taconite ore processing plants;

glass fiber processing plants;

charcoal production plants;

fossil-fuel-fired steam electric plants of more than 250 million British thermal units per

-,

A. General applicability: 20.11.46 NMAC applies to any stationary source or group ofstationary

sources that are located on one or more contiguous or adjacent properties and which are under the control ofthe

same person or persons under common control, belonging to the same industrial grouping, and that are described in

Paragraphs (I) through (4) of Subsection B of 20.11.46.10 NMAC. A stationary source or group ofstationary

sources shall be considered part of a single industrial grouping if all ofthe pollutant emitting activities at such

source or group ofsources on contiguous or adjacent properties belong to the same major group (i.e., all have the

same two-digit code) as described in the standard industrial classification manual, 1987.

B. The following are WEB sources.

(1) All BART-eligible sources as defmed in 40 CFR 51.301 that are BART-eligible due to SO,

emissions.

(2) All stationary sources not meeting the criteria ofParagraph (I) of Subsection B of20.11.46.ll

NMAC, that have actual SO, emissions of 100 tons or more per year in the program trigger years or any subsequent

year. The fugitive emissions of a stationary source shall not be considered in determining whether it is a WEB

source unless the source belongs to One ofthe following categories ofstationary sOurce:

(a) coal cleaning plants (with thermal dryers);

(b) kraft pulp mills;

(c) portland cement plants;

(d) primary zinc smelters;

(e) iron and steel mills;

(I) primary aluminum ore reduction plants;

(g) primary copper smelters;

(h) municipal incinerators capable of charging more than 250 tons ofrefuse per day;

(i) hydrofluoric, sulfuric, or nitric acid plants;

(j) petroleum refineries;

(k) lime plants;

(I) phosphate rock processing plants;

(m) coke oven batteries;

(n) sulfur recovery plants;

(0) carbon black plants (furnace process);

(p) primary lead smelters;

(q) fuel conversion plants;

(r) sintering plants;

(s) secondary metal production plants;

(t) chemical process plants;

(u) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal

units per hour heat input;

(v) petroleum storage and transfer units with a total storage capacity exceeding 300,000

barrels;

(w)

(x)

(y)

(z)

hour heat input; or

(aa) any other stationary source category, which as of August 7, 1980 is being regulated under

Section III or 112 ofthe Clean Air Act.

(3) A new source that begins operation after the program trigger date and has the potential to emit

100 tons or more of SO, per year.

(4) The department may determine on a case-by-case basis, with concurrence from the EPA

administrator, that a source defined in Paragraph (2) of Subsection B of20.11.46.ll NMAC is not a WEB sourceif

the source:

(a) in each ofthe previous five years had actual SO, emissions ofless than 100 tons per year,

and

(b) had actual SO, emissions of 100 tons or more in a single year due to a temporary emission

increase that was caused by a sudden, infrequent, and not reasonably preventable failure of air pollution control

equipment. failure ofprocess equipment, or a failure to operate in a normal or usual manner;

(c) took timely and reasonable action to minimize the temporary emission increase; and

20.11.46 NMAC 5
(d) has corrected the failure of air pollution control equipment, process equipment, or process

by the time ofthe department's determination under 20.11.46.11 NMAC; or

(e) had to switch fuels or feedstocks on a temporary basis and as a result of an emergency

situation or unique and unusual circumstances besides cost ofsuch fuels or feedstocks.

(5) A temporary emission increase due to poor maintenance or careless operation does not meet the

criteria ofthis section.

C. Duration of program participation: Except as provided for in Subsection D of 20.11.46.11

NMAC, once a source is subject to the WEB trading program, it will remain in the program every year thereafter.

D. Application for retired source exemption:

(1) Any WEB source that is retired shall apply for a retired source exemption. The WEB source may

only be considered retired if all SO, emitting units at the source are retired. The application shall contain the

following information:

(a) identification ofthe WEB source, including plant name and an appropriate identification

code in a format specified by the department;

(b) name of account representative;

(c) description ofthe status ofthe WEB source, including the date that the WEB source was

retired;

(d) signed certification that the WEB source is retired and will comply with the requirements of

Subsection D of 20.11.46.11 NMAC; and

(e) verification that the WEB source has a general account where any unused allowances or

future allocations will be recorded.

(2) Responsibilities of retired sources: The retired source exemption becomes effective when the

department notifies the source that the retired source exemption has been granted.

(3) A retired source shall be exempt from 20.11.46.16 NMAC and 20.11.46.19 NMAC, except as

provided below.

(a) A retired source shall not emit any SO, after the date the retired source exemption is

effective.

(b) A WEB source shall submit SO, emissions reports, as required by Subsection 0 of

20.11.46.16 NMAC for any time period the source was operating prior to the effective date ofthe retired source

exemption. The retired source shall be subject to the compliance provisions of20.11.46.19 NMAC, including the

requirement to hold allowances in the source's compliance account to cover all SO, emissions prior to the date the

source was permanently retired.

(c) A retired source that is still in existence but no longer emitting SO, shall, for a period of

five years from the date the records are created, retain records demonstrating the effective date ofthe retired source

exemption for purposes ofthis part.

(4) Resumption of operations.

(a) Should a retired source desire to resume operation, the retired source shall submit

registration materials as follows:

(1) ifthe source is required to obtain a new source review pennit or operating pennit

under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC prior to resuming operation, then the

source shall submit registration information as described in 20.11.46.13 NMAC and a copy ofthe retired source

exemption with the application required under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61

NMAC;

(il) ifthe source is not required to obtain a new source review pennit or operating pennit

under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC prior to resuming operation, then the

source shall submit registration information as described in Subsection A of 20.11.46.13 NMAC and a copy ofthe

retired source exemption to the department at least ninety days prior to resumption of operation.

(b) The retired source exemption shall automatically expire on the day the source resumes

operation.

(5) Loss of Future Allowances: A WEB source that is retired and that does not apply to the

department for a retired source exemption within 90 days ofthe date that the source is retired shall forfeit any

unused and future allowances. The abandoned allowances shall be retired by the tracking system administrator.

[20.11.46.11 NMAC-N, 12/31/03]

20.11.46.12 ACCOUNT REPRESENTATIVE FOR WEB SOURCES: Each WEB source must identify

one account representative and may also identify an alternate account representative who may act on behalf ofthe

,"

20.11.46 NMAC 6
account representative. Any representation, action, inaction or submission by the alternate account representative

will be deemed to be a representation, action, inaction or submission by the account representative.

A. Identification and certification of an account representative.

(1) The account representative and any alternate account representative shall be appointed by an

written agreement that rnakes the representations, actions, inactions or submissions ofthe account representative and

any alternate account representative binding on the owners and operators ofthe WEB SOurce. A copy ofthe

agreement shall be provided to the department.

(2) The account representative shall submit to the department and the tracking system administrator a

signed and dated account certificate ofrepresentation (certificate) that contains the following elements:

(a) identification ofthe WEB source by plant name, state, and an appropriate identification

code in a format specified by the department;

(b) the name, address, e-mail (if available), telephone and facsimile number ofthe account

representative and any alternate;

(c) a list of owners and operators ofthe WEB source;

(d) information to be part ofthe emission tracking system database in accordance with the SO,

milestones and backstop trading program implementation plan element; and the specific data elements shall be as

specified by the department to be consistent with the data system structure, and may include basic facility

information that may appear in other reports and notices submitted by the WEB source, such as county location,

industrial classification codes, and similar general facility infonnation; and

(e) the following certification statement: "I certify that \ was selected as the account

representative or alternate account representative, as applicable, by an agreement binding on the owners and

operators ofthe WEB source. I certify that \ have all the necessary authority to carry out my duties and

responsibilities under the WEB trading program on behalf ofthe owners and operators ofthe WEB source and that

each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by

any decision or order issued to me by the department regarding the WEB trading program."

(3) Upon receipt by the department ofthe complete certificate, the account representative and any

alternate account representative represents and, by his or her representations, actions, inactions, or submissions,

legally binds each owner and operator ofthe WEB source in all matters pertaining to the WEB trading program The

owners and operators shall be bound by any decision or order issued by the department regarding the WEB trading

program.

(4) No WEB allowance tracking system account shall be established for the WEB source until the

tracking system administrator has received a complete certificate. Once the account is established, the account

representative shall make all submissions concerning the account, including the deduction or transfer of allowances.

B. Requirements and responsibilities.

(1) The responsibilities ofthe account representative include, but are not limited to, the transferring

of allowances, and the submission of monitoring plans, registrations, certification applications, 802 emissions data

and compliance reports as required by 20.11.46 NMAC, and representing the source in all matters pertaining to the

WEB trading program.

(2) Each submission under this program shall be signed and certified by the account representative

for the WEB source. Each submission shall include the following truth and accuracy certification statement by the

account representative: "\ am authorized to make this submission on behalf ofthe owners and operators ofthe WEB

source for which the submission is made. \ certify under penalty oflaw that \ have personally examined, and am

familiar with, the statements and information submitted in this document and all its attachments. Based on my

inquiry ofthose individuals with primary responsibility for obtaining the information, \ certify that the statements

and information are to the best ofmy koowledge and belieftrue, accurate, and complete. I am aware that there are

significant penalties for submitting false statements and information or omirting required statements and

infonnation, including the possibility offme or imprisonment."

C. Changing the account representative or owners and operators.

(1) Changes to the account representative or the alternate account representative. The account

representative or alternate account representative may be changed at any time by sending a complete superseding

certificate to the department and the tracking system administrator under Paragraph (3) of Subsection A of

20.11.46.12 NMAC, with the change taking effect upon receipt ofsuch certificate by the department.

Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous account

representative or alternate prior to the time and date when the tracking system administrator receives the superseding

certificate shall be binding on the new account representative and the owners and operators ofthe WEB source.

(2) Changes in owners and operators.

20.\ 1.46 NMAC 7
20.11.46.13

A.

(a) Within 30 days of any change in the owners and operators ofthe WEB source, including

the addition of a new owner or operator, the account representative shall submit a revised certificate amending the

list of owners and operators to include such change.

(b) In the event a new owner or operator of a WEB source is not included in the list of owners

and operators submitted in the certificate, such new owner or operator shall be deemed to be subject to and bound by

the certificate, the representations, actions, inactions, and submissions ofthe account representative ofthe WEB

source, and the decisions, orders, actions, and inactions ofthe department as ifthe new owner or operator were

included in such list.

[20.11.46.12 NMAC - N, 12/31103]

REGISTRATION:

Deadlines.

(I) Each source that is a WEB source on or before the program trigger date shall register by

submitting the initial certificate required in Subsection A of 20.11.46.12 NMAC to the department no later than 180

days after the program trigger date.

(2) Any existing source that becomes a WEB source after the program trigger date shall register by

submitting the initial certificate required in Subsection A of20.11.46.12 NMAC to the department no later than

September 30 ofthe year following the inventory year in which the source exceeded the emission threshold.

(3) Any new WEB source shall register by submitting the initial certificate required in Subsection A

of 20.11.46.12 NMAC to the department prior to the commencement of operation.

B. Integration into Permits.

(I) Any allocation, transfer or deduction of allowance to or from the compliance account of a WEB

source shall not require revision ofthe WEB source's operating permit under 20.11.42 NMAC.

(2) After 20.11.46 NMAC is effective, a WEB source that is not required to have a permit under

20.11.41 NMAC, 20.11.60 NMAC or 20.11.61 NMAC, must at all times possess a valid 20.11.42 NMAC permit

that includes the requirements of20.11.46 NMAC. Ifthe WEB source does not possess a Title V permit under

20.11.42 NMAC, it may satisfy the requirements of paragraph (2) of Subsection B of 20.11.46.13 NMAC by

obtaining or modifying a permit under 20.11.41 NMAC, 20.11.60 NMAC or 20.11.61 NMAC that incorporates the

requirements of 20.11.46 NMAC. The source must at all times possess a valid permit that includes these

requirements.

[20.11.46.13NMAC-N,12/31/03]

20.11.46.14 ALLOWANCE ALLOCATIONS:

A. The tracking system administrator shall record the allowances for each WEB source in the

compliance account for a WEB source once the allowances are allocated by the department under Section F I of

Chapter VI ofthe SO, milestones and backstop trading program implementation plan element. If applicable, the

tracking system administrator shall also record a portion ofthe SO, allowances in a WEB source's special reserve

compliance account for any allowances held in accordance with Subsection B of 20.11.46.16 NMAC.

B. The tracking system administrator shall assign a serial number to each allowance in accordance

with Section F2 ofthe SO, milestones and backstop trading program implementation plan element.

C. All allowances shall be allocated, recorded, transferred, or used as whole allowances. To

determine the number of whole allowances, the number of allowances shall be rounded down for decimals less than

0.50 and rounded up for decimals of 0.50 or greater.

D. An allowance is not a property right, and is a limited authorization to emit one ton of SO, valid

only for the purpose ofmeeting the requirements of 20.11.46 NMAC. No provision ofthis WEB trading program or

other law should be construed to limit the authority ofthe United States or the department to terminate or limit such

authorization.

E. Early reduction bonus allocation: Any WEB source that, between 2003 and the program trigger

year, reduces permitted annual SO, emissions to a level that is below the floor level allocation established for that

source in Section F I ofChapter VI ofthe SO, milestones and backstop trading program implementation plan

element may apply to the department for an early reduction bonus allocation. The application shall be submitted no

later than 90 days after the program trigger date. Any WEB source that applies and receives early reduction bonus

allocations shall retain the records referenced below for a minimum offive years after the early reduction bonus

allowance is certified in accordance with Section F I(d) ofChapter VI ofthe SO, milestones and backstop trading

program implementation plan element. The application for an early reduction bonus allocation shall contain the

following information:

20.11.46 NMAC 8
.,

(1) copies of all pennits or other enforceable docwnents that include annual SO, emissions limits for

the WEB source during the period the WEB source was generating the early reductions; and such pennits or

enforceable documents shall require monitoring for SO, emissions that meets the requirements in Subsection A and

Subsection C of 20.11.46.16 NMAC and monitoring provisions that were in effect One year prior to the begirrning of

the credit generating period;

(2) copies of emissions monitoring reports, for one year prior to the beginning ofthe credit generating

period and for the period the WEB source was generating the early reductions, that docwnent the actual annual SO,

emissions; and the emissions monitoring reports during the credit generating period must demonstrate that the actual

annual SO, emissions were below the floor level allocation established for that source in Section F I ofChapter VI

ofthe SO, milestones and backstop trading program implementation plan element;

(3) demonstration that the floor level established for the source in accordance with Section FI of

Chapter VI ofthe SO, milestones and backstop trading program implementation plan element was calculated using

data that are consistent with the new monitoring methodology under Subsection A of 20.11.46.16 NMAC; and if

new monitoring techniques change the floor level for the source, then a demonstration ofthe new floor level based

on new monitoring techniques shall be included in the application.

F. Request for allowances for new WEB sources or modified WEB Sources.

(1) A new WEB source or an existing WEB source that has increased production capacity through a

pennitted change in operations under 20.11.41 NMAC, 20.11.60 NMAC or 20.11.61 NMAC may apply to the

departtnent for an allocation from the new source set-aside, as outlined in Section F3 ofChapter VI ofthe SO,

milestones and backstop trading program implementation plan element.

(a) A new WEB source is eligible to apply for an annual allocation equal to the pennitted

annual SO, emission limit for that source after the source has commenced operation.

(b) An existing WEB source is eligible to apply for an annual allocation equal to the pennitted

annual SO, emission limit for that source that is attributable to any amount of production capacity that is greater

than the pennitted production capacity for that source as ofJanuary 1,2003.

(c) A source that has received a retired source exemption under Subsection D of20.11.46.11

NMAC is not eligible to apply for an allocation from the new source set-aside.

(2) The application for an allocation from the new source set-aside shall contain the following

information:

(a) for existing WEB sources, documentation that shows the pennitted production capacity of

the source before and after the new pennit;

(b) for new WEB sources, documentation ofthe actual date ofthe commencement of operation

and a copy ofthe pennit.

[20.11.46.14 NMAC - N, 12/31/03]

20.11.46.15 ESTABLISHMENT OF ACCOUNTS:

A. Allowance tracking system accounts: All WEB sources shall open a compliance account. Any

person may open a general account for holding and transferring allowances. In addition, if a WEB source conducts

monitoring under Subsection B of 20.11.46.16 NMAC, the WEB source shall open a special reserve compliance

account for allowances associated with units monitored Wlder those provisions. The WEB source and account

representative shall have no rights to transfer allowances in or out ofsuch special reserve compliance account. The

departtnent shall allocate allowances to the account in accordance with Paragraph (5) of Subsection B of 20.11.46.16

NMAC and all such allowances for each control period shall be retired each year to comply with 20.11.46.19

NMAC. To open either type of account, an application that contains the following information shall be submitted:

(1) the name, mailing address, e-mail address, telephone number, and facsimile number ofthe

aCcoWlt representative; for a compliance account, include a copy ofthe aCcoWlt certificate ofrepresentation ofthe

account representative and any alternate as required in Paragraph (2) of Subsection A of 20.11.46.12 NMAC; and

for a general account, include the account certificate ofrepresentation of the account representative and any alternate

as required in Paragraph (2) of Subsection C of 20.11.46.15 NMAC;

(2) the WEB source or organization name;

(3) the type of account to be opened; and

(4) a signed certification oftruth and accuracy by the account representative according to Paragraph

(2) of Subsection A of 20.11.46.12 NMAC and for compliance accounts and for general accounts, a certification of

truth and accuracy by the account representative according to Subsection D of 20.11.46.15 NMAC.

B. Account representative for general accounts: For a general aCcoWlt, one account representative

shall be identified and an alternate account representative may be identified and may act on behalf ofthe account

20.11.46 NMAC 9
representative. Any representation, action, inaction or submission by the altemate account representative shall be

deemed to be a representation, action, inaction or submission by the account representative.

C. Identification and certification of an account representative for general accounts.

(I) The account representative and any alternate account representative shall be appointed by a

written agreement that makes the representations, actions, inactions or submissions ofthe account representative and

any alternate account representative binding on all persons who have an ownership interest with respect to

allowances held in the general account. A copy ofthe sigoed agreement shall be provided to the department.

(2) The account representative shall submit to the department and the tracking system administrator a

sigoed and dated account certificate ofrepresentation (certificate) that contains the following elements:

(a) the name, address, e-mail (if available), telephone and facsimile number ofthe account

representative and any alternate;

(b) the organization name;

(c) the following certification statement: "I certilY that I was selected as the account

representative or alternate account representative, as applicable, by an agreement binding on all persons who have

an ownership interest in allowances in the general account with regard to matters concerning the general account. I

certilY that I have all the necessary authority to carry out my duties and responsibilities under the WEB trading

program on behalf ofsaid persons and that each such person shall be fully bound by my representations, actions,

inactions, or submissions and by any decision or order issued to me by the department regarding the general

account."

(3) Upon receipt by the department ofthe complete certificate, the account representative represents

and, by his or her representations, actions, inactions, or submissions, legally binds each person who has an

ownership interest in allowances held in the general account with regard to all matters concerning the general

account. Such persons shall be bound by any decision or order issued by the department.

(4) No WEB allowance tracking system general account shall be established until the tracking system

administrator has received a complete certificate. Once the account is established, the account representative shall

make all submissions concerning the account, including the deduction or transfer of allowances.

D. Requirements and responsibilities: Each submission for the general account shall be sigoed and

certified by the account representative for the general account. Each submission shall include the following truth

and accuracy certification statement by the account representative: "I am authorized to make this submission on

behalfof all person who have an ownership interest in allowances held in the general account. I certilY under

penalty oflaw that I have personally examined, and am familiar with, the statements and information submitted in

this document and all its attachments. Based on my inquiry ofthose individuals with primary responsibility for

obtaining the information, I certilY that the statements and information are to the best ofmy knowledge and belief

true, accurate, and complete. I am aware that there are sigoificant penalties for submitting false statements and

information or omitting required statements and information, including the possibility offme or imprisonment."

E. Changing the account representative: The account representative or alternate account

representative may be changed at any time by sending a complete superseding certificate to the department and the

tracking system administrator under Paragraph (2) of Subsection C of 20.11.46.15 NMAC, with the change taking

effect upon receipt ofsuch certificate by the department. Notwithstanding any such change, all representations,

actions, inactions, and submissions by the previous account representative or alternate prior to the time and date

when the department receives the superseding certificate shall be binding on the new account representative and all

persons having ownership interest with respect to allowances held in the general account.

F. Changes to the account: Any change to the information required in the application for an

existing account under Subsection A of 20.11.46.15 NMAC shall require a revision ofthe application.

[20.11.46.15 NMAC - N, 12/31103]

20.11.46.16 MONITORING, RECORD KEEPING AND REPORTING - GENERAL REQillREMENTS

FOR MONITORING METHODS:

A. Each SO, emitting unit at a WEB source shall comply with the following, as applicable, to

monitor and record S02 mass emissions:

(I) if a unit is subject to 40 CFR Part 75 under a requirement separate from the WEB trading

program, the unit shall meet the requirements contained in 40 CFR Part 75 with respect to monitoring, recording and

reporting S02 mass emissions;

(2) if a unit is not subject to 40 CFR Part 75 under a requirement separate from the WEB trading

program, a unit shall use one ofthe following monitoring methods, as applicable:

.-

20.11.46 NMAC 10
(a) a continuous emission monitoring system (CEMS) for SO, and flow that complies with all

applicable monitoring provisions in 40 CFR Part 75;

(b) ifthe unit is a gas- or oil-fired combustion device, the excepted monitoring methodology in

appendix D to 40 CFR Part 75, or, if applicable, the low mass emissions (LME) provisions (with respect to SO,

mass emissions only) of Section 75.19 of 40 CFR Part 75;

(c) one of the optional WEB protocols, if applicable, in 20.11.46.21 NMAC or 20.11.46.22

NMAC;or

(d) a petition for site-specific monitoring that the source submits for approval by the

department and approval by the EPA in accordance with Paragraph (5) of Subsection 0 of20.11.46.16 NMAC;

(3) a permanently retired unit shall not be required to monitor under Section 20.11.46.15 NMAC if

such unit was permanently retired and had no emissions for the entire period for which the WEB source implements

Paragraph (3) of Subsection A of 20.11.46.16, and the account representative certifies in accordance with Subsection

B of 20.11.46.19 NMAC that these conditions were met; and in the event that a permanently retired unit

recommences operation, the WEB source shall meet the requirements of 20.11.46.16 NMAC in the same manner as

ifthe unit was a new unit.

B. Notwithstanding Subsection A of 20.11.46.16 NMAC, the WEB source with a unit that meets one

of the conditions of Paragraph (I) of Subsection B of 20.11.46.16 NMAC may elect to have the provisions of

Paragraph (I) of Subsection B of20.11.46.16 NMAC apply to that unit.

(1) Any of the following units may implement Subsection B of 20.11.46.16 NMAC:

(a) any smelting operation where all of the emissions from the operation are not dueted to a

stack; or

(b) any flare, except to the extent such flares are used as a fuel gas combustion device at a

petroleum refinery;

(c) any other type of unit without add-on SO, control equipment, if no control level was

assumed for the WEB source in establishing the floor level (and reducible allocation) provided in Section FI of

Chapter VI ofthe SO, milestones and backstop trading program implementation plan element.

(2) For each unit covered by Subsection B of 20.11.46.16 NMAC, the account representative shall

submit a notice to request that Subsection B of 20.11.46.16 NMAC applies to one or more SO, emitting units at a

WEB source. The notice shall be submitted in accordance with the compliance dates specified in Paragraph (I) of

Subsection M of 20.11.46.16 NMAC, and shall include the following information (in a format specified by the

department with such additional, related information as may be requested):

(a) a notice of all units at the applicable source, specifying which ofthe units are to be covered

by SubsectionB of 20.11.46.16 NMAC; and

(b) consistent with the emission estimation methodology used to determine the floor level (and

reducible allocation) for the source in accordance with Section F I ofChapter VI ofthe SO, milestones and backstop

trading program implementation plan element, the portion of the WEB source's overall allowance allocation that is

attributable to any unit(s) covered by Paragraph (2) of Subsection B of20.11.46.16; and

(c) an identification of any such units that are permanently retired.

(3) For each new unit at an existing WEB source for which the WEB source seeks to comply with

this Subsection B of 20.11.46.16 NMAC, and for which the account representative applies for an allocation under

the new source set-aside provisions of Subsection F of 20.11.46.14 NMAC, the account representative shall submit a

modified notice under Paragraph (2) of Subsection B of20.11.46.16 NMAC, that includes such new SO, emitting

unit(s). The modified notice shall be submitted in accordance with the compliance dates in Paragraph (I) of

Subsection M of 20.11.46.16 NMAC, but no later than the date on which a request must be submitted under

Paragraph (I) of Subsection F of 20.11.46.14 NMAC for allocations from the set-aside.

(4) The department shall evaluate the information submitted by the WEB source in Paragraphs (2)

and (3) of Subsection B of 20.11.46.16 NMAC, and may issue a notice to the source to exclude any units that do not

qualify under this Subsection B of 20.11.46.16 NMAC or to adjust the portion of allowances attributable to units

that do qualify to be consistent with the emission estimation methodology used to establish the floor level (and

reducible allocation) for the source.

(5) The department shall allocate allowances equal to the adjusted portion of the WEB source's

allowances under Paragraphs (2), (3), and (4) of Subsection B of20.11.46.16 NMAC in a special reserve

compliance account provided that no such treatment ofthe WEB source's allocation will be required for any unit

that is permanently retired and had no emissions for the entire period for which the WEB source implements

Subsection B of 20.11.46.16 NMAC and the account representative certifies in accordance with 20.11.46.19 NMAC

20.11.46 NMAC Il
that these conditions are met. In the event that a permanently retired unit recommences operation, the WEB source

shall meet the requirements of Section 20.11.46.16 NMAC in the same manner as if the unit was a new unit.

(6) For each unit under this Subsection B of20.11.46.16 NMAC, the account representative for a

WEB source shall submit an annual emissions statement in accordance with Subsection a of 20.11.46.16 NMAC.

The WEB source shall maintain operating records sufficient to estimate annual emissions in a manner consistent

with the emission estimation methodology used to establish the floor level (and reducible allocation) for the source.

In addition, if the estimated emissions from all such units at the WEB source are greater than the allowances for the

current control year held in the special reserve compliance account under Paragraph (5) of Subsection B of

20.11.46.16 NMAC for the WEB source, the account representative shall report the excess amount as part ofthe

annual report for the WEB source under 20.11.46.19 NMAC and the WEB source shall use other allowances in the

standard compliance account for the WEB source to account for such emissions, in accordance with 20.11.46.19

NMAC.

(7) The remaining provisions of 20.11.46.16 NMAC shall not apply to units covered by Subsection B

of20.11.46.16 NMAC except where otherwise noted.

(8) A WEB source may opt to modify the monitoring for an SO, emitting unit to use monitoring

under Subsection A of 20.11.46.16 NMAC, but any such monitoring change shall take effect on January I ofthe

next compliance year. In addition, the account representative shall submit an initial monitoring plan at least 180

days prior to the date on which the new monitoring wil\ take effect and a detailed monitoring plan in accordance

with Subsection D of 20.11.46.16 NMAC. The account representative shall also submit a revised notice under

Subsection B of 20.11.46.16 NMAC at the same time that the initial monitoring plan is submitted.

C. For any monitoring that the WEB source uses under 20.11.46.16 NMAC (including Paragraph B

of Section 20.11.46.16 NMAC), the WEB source (and, as applicable, the account representative) shall implement,

certify, and use such monitoring in accordance with 20.11.46.16 NMAC, and shall record and report the data from

such monitoring as required in 20.11.46.16 NMAC. In addition, the WEB source (and, as applicable, the account

representative) shall not:

(I) except for an alternative approved by the EPA administrator for a WEB source that implements

monitoring under Paragraph (I) of Subsection A of20.11.46.16 NMAC, use an alternative monitoring system,

alternative reference method or another alternative for the required monitoring method without having obtained

prior written approval in accordance with Paragraph (5) of Subsection a of 20.11.46.16 NMAC;

(2) operate an SO, emitting unit so as to discharge, or allow to be discharged, SO, emissions to the

abuosphere without accounting for these emissions in accordance with the applicable provisions of20.11.46.16

NMAC;

(3) disrupt the approved monitoring method or any portion thereof, and thereby avoid monitoring and

recording SO, mass emissions discharged into the abuosphere, except for periods ofrecertification or periods when

calibration, quality assurance testing or maintenance is perfonned in accordance with the applicable provisions of

20.11.46.16 NMAC; or

(4) retire or permanently discontinue use of an approved monitoring method, except under one ofthe

following circumstances:

(a) during a period when the unit is exempt from the requirements of 20.11.46.16 NMAC ,

including retirement of a unit as addressed in Paragraph (3) of Subsection A of 20.11.46.16 NMAC;

(b) the WEB source is monitoring emissions from the unit with another certified monitoring

method approved under 20.11.46.16 NMAC for use at the unit that provides data for the same parameter as the

retired or discontinued monitoring method; or

(c) the account representative submits notification ofthe date of certification testing of a

replacement monitoring system in accordance with 20.11.46.16 NMAC, and the WEB source recertifies thereafter a

replacement monitoring system in accordance with the applicable provisions of 20.11.46.16 NMAC.

D. Monitoring plan general provisions: The WEB source of an SO, emitting unit that uses a

monitoring method under Paragraph (2) of Subsection A of 20.11.46.16 NMAC shall meet the following

requirements:

(I) prepare and submit to the department an initial monitoring plan for each monitoring method that

the WEB source uses to comply with 20.11.46.16 NMAC; and in accordance with Subsection F of20.11.46.16

NMAC, the plan shall contain sufficient infonnation on the units involved, the applicable method, and the USe of

data derived from that method to demonstrate that all unit SO, emissions are monitored and reported; and the plan

shall be submitted in accordance with the compliance deadlines specified in Subsection M of 20.11.46.16 NMAC;

(2) prepare, maintain and submit to the department a detailed monitoring plan prior to the frrst day of

certification testing in accordance with the compliance deadline specified in Subsection M of20.11.46.16 NMAC;

20.11.46 NMAC 12
the plan shall contain the applicable information required by Subsection D of20.11.46.16 NMAC; the department

may require that the monitoring plan (or portions thereof) be submitted electronically; and the department also may

require that the plan be submitted on an ongoing basis in electronic format as part ofthe quarterly report submitted

under Paragraph (I) of Subsection a of 20.11.46.16 NMAC or resubmitted separately after any change is made to

the plan in accordance with the following Paragraph (3) of Subsection D of 20.11.46.16 NMAC;

(3) whenever the WEB source makes a replacement, modification, or change in one ofthe systems or

methodologies provided for in Paragraph (2) of Subsection A of 20.11.46.16 NMAC, including a change in the

automated data acquisition and handling system or in the flue gas handling system, that affects information reported

in the monitoring plan (e.g., a change to serial number for a component of a monitoring system), then the WEB

source shall update the monitoring plan in accordance with the compliance deadline specified in Subsection M of

20.11.46.16 NMAC.

E. A WEB source with an SO, emittiog unit that uses a method under Paragraph (I) ofSubsection A

of20.11.46.16 NMAC (a unit subject to 40 CPR Part 75 under a program other than this WEB trading program)

shall meet the requirements of Subsection D through Subsection I of 20.11.46.16 NMAC by preparing, maintaining

and submitting a monitoring plan in accordance with the requirements of 40 CFR Part 75, provided that the WEB

source also shall submit the entire monitoring plan to the department upon request.

F. Initial monitoring plan: The account representative shall submit an initial monitoring plan for

each SO, emitting unit (or group of units sharing a common methodology) that, except as otherwise specified in an

applicable provision in 20.11.46.21 NMAC, contains the following information:

(1) for all SO, emittiog units involved in the monitoring plan:

(a) plant name and location;

(b) plant and unit identification numbers assigned by the department;

(e) type of unit (or units for a group of units using a common monitoring methodology);

(d) identification of all stacks or pipes associated with the monitoring plan;

(e) types offuel(s) fired (or sulfur containing process materials used in the SO, emittiog unit),

and the fuel classification ofthe unit ifcombusting mOre than one type offuel and using a 40 CPR Part 75

methodology;

(I) type(s) of emissions controls for SO, installed or to be installed, including specifications of

whether such controls are pre-combustion, post-combustion, or integral to the combustion process;

(g) maximum hourly heat input capacity, or process throughput capacity, if applicable;

(h) identification of all units using a common stack; and

(i) indicator ofwhether any stack identified in the plan is a bypass stack;

(2) for each unit and parameter required to be monitored, identification ofmonitoring methodology

information, consisting ofmonitoring methodology, monitor locations, substitute data approach for the

methodology, and general identification of quality assurance procedures; and ifthe proposed methodology is a sitespecific methodology submitted pursuant to Subparagraph (d) ofParagraph (2) of Subsection A of20.11.46.16

NMAC, the description under Paragraph (2) of Subsection D of 20.11.46.16 NMAC shall describe fully all aspects

ofthe monitoring equipment, installation locations, operating characteristics, certification testing, ongoing quality

assurance and maintenance procedures, and substitute data procedures;

(3) ifthe WEB source intends to petition for a change to any specific monitoring requirement

otherwise required under 20.11.46.16 NMAC , such petition may be submitted as part ofthe initial monitoring plan;

(4) the department may issue a notice of approval or disapproval ofthe initial monitoring plan based

on the compliance ofthe proposed methodology with the requirements for monitoring in 20.11.46.16 NMAC.

G. Detailed monitoring plan: The account representative shall submit a detailed monitoring plan

that. except as otherwise specified in an applicable provisions in 20.11.46.21 NMAC or 20.11.46.22 NMAC, shall

contain the following information:

(1) identification and description of each monitoring component (including each monitor and its

identifiable components, such as analyzer or probe) in a CEMS (e.g., SO, pollutant concentration munitor, flow

monitor, moisture monitor), a 40 CFR Part 75, appendix D monitoring system (e.g., fuel flowmeter, data acquisition

and handling system), or a protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC, including:

(a) manufacturer, model number and serial number;

(b) component or system identification code assigned by the facility to each identifiable

monitoring component, such as the analyzer or probe;

(e) designation ofthe component type and method ofsample acquisition or operation (e.g., in

situ pollutant concentration monitor or thermal flow monitor);

(d) designation ofthe system as a primary or backup system;

20.11.46 NMAC 13
(e) first and last dates the system reported data;

(I) status ofthe monitoring component; and

(g) parameter monitored;

(2) identification and description of all major hardware and software components ofthe automated

data acquisition and handling system, including:

(a) hardware components that perform emission calculations or store data for quarterly

reporting purposes (provide the manufacturer and model number); and

(b) software components (provide the identification ofthe provider and model or version

number);

(3) explicit formulas for each measured emissions parameter, using component or system

identification codes for the monitoring system used to measure the parameter that links the system observations with

the reported concentrations and mass emissions; the formulas shall contain all constants and factors required to

derive mass emissions from component or system code observations and an indication of whether the fonnula is

being added, corrected, deleted, or is unchanged; and the WEB source with a low mass emissions unit for which the

WEB source is using the optional low mass emissions excepted methodology in Section 75.19(c) of 40 CFR Part 75

is not required to report such formulas;

(4) inside cross-sectional area (square feet) at flow monitoring location (for units with flow monitors,

only);

(5) if using CEMS for SO, and flow, for each parameter monitored: scale, maximum potential

concentration (and method of calculation), maximum expected concentration (if applicable, and method of

calculation), maximum potential flow rate (and method of calculations), span value, full-scale range, daily

calibration units ofmeasure, span effective date and hour, span inactivation date and hour, indication of whether

dual spans are required, default high range value, flow rate span, and flow rate span value and full scale value in

standard cubic feet per hour (scth) for each unit or stack using SO, or flow component monitors;

(6) ifthe monitoring system or excepted methodology provides for use ofa constant, assumed, or

default value for a parameter under specific circumstances, then the following information for each value ofsuch

parameter shall be included:

(a) identification ofthe parameter;

(b) default, maximwn, minirnwn, or constant value, and units of measure for the value;

(c) purpose ofthe value;

(d) indicator of use during controlled and uncontrolled hours;

(e) types offuel;

(I) source ofthe value;

(g) value effective date and hour;

(h) date and hour value is no longer effective (if applicable); and

(I) for units using the excepted methodology under Section 75.19 of 40 CFR Part 75, the

applicable SO, emission factor;

(7) unless otherwise specified in Section 6.5.2.1 of appendix A to 40 CFR Part 75, for each unit or

common stack on which hardware CEMS are installed:

(a) the upper and lower boundaries ofthe range of operation (as defmed in Section 6.5.2.1 of

appendix A to 40 CFR Part 75), or thousands oflblhr ofsteam, or filsec (as applicable);

(b) the load or operating level(s) designated as normal in section 6.5.2.1 of appendix A to 40

CFR Part 75, or thousands of pounds per hour Iblhr ofsteam, or feet per second filsec (as applicable);

(c) the two load or operating levels (i.e., low, mid, or high) identified in section 6.5.2.1 of

appendix A to 40 CFR Part 75 as the most frequently used;

(d) the date ofthe data analysis used to determine the normal load (or operating) level(s) and

the two most frequently-used load (or operating) levels; and

(e) activation and deactivation dates when the normal load or operating level(s) change and are

updated.

(8) for each unit that is complying with 40 CFR Part 75 for which the optional fuel flow-to-load test

in Section 2.1.7 of appendix D to 40 CFR Part 75 is used:

(a) the upper and lower boundaries ofthe range of operation (as defmed in Section 6.5.2.1 of

appendix A to 40 CFR Part 75), expressed in thousands oflblhr ofsteam;

(b) the load level designated as normal, pursuant to Section 6.5.2.1 of appendix A to 40 CFR

Part 75, expressed in thousands oflblhr ofsteam; and

(c) the date ofthe load analysis used to determine the normal load level.

20.11.46 NMAC 14
(9) information related to quality assurance testing, including (as applicable): identification ofthe

test strategy; protocol for the relative accuracy test audit; other relevant test information; calibration gas levels

(percent ofspan) for the calibration error test and linearity check; calculations for determining maximum potential

concentration, maximum expected concentration (if applicable), maximum potential flow rate, and span;

(10) if applicable, apportionment strategies under Sections 75.10 through 75.18 of 40 CFR Part 75;

(11) description ofsite locations for each monitoring component in a monitoring system, including

schematic diagrams and engineering drawings and any other documentation that demonstrates each monitor location

meets the appropriate siting criteria; and for units monitored by a continuous emission monitoring system, diagrams

shall include:

(8) a schematic diagram identifying entire gas handling system from unit to stack for all units,

using identification numbers for units, monitor components, and stacks corresponding to the identification numbers

provided in the initial monitoring plan and Paragraphs (I) and (3) of Subsection G of20.11.46.16 NMAC; the

schematic diagram must depict the height of any monitor locations; and comprehensive or separate schematic

diagrams shall be used to describe groups of units using a common stack;

(b) stack and duct engineering diagrams showing the dimensions and locations offans, turning

vanes, air preheaters, monitor components, probes, reference method sampling ports, and other equipment that

affects the monitoring system location, performance, or quality control checks;

(12) a data flow diagram denoting the complete information-handling path from output signals of

CEMS components to final reports.

H. In addition to supplying the information in Subsections F and G of20.11.46.16 NMAC above, the

WEB source with an SO, emitring unit using either ofthe methodologies in Subparagraph (b) ofParagraph (2) of

Subsection A of 20.11.46.16 NMAC shall include the following information in its monitoring plan for the specific

situations described:

(1) for each gas-fired or oil-fired SO, emitting unit for which the WEB source uses the optional

protocol in appendix D to 40 CFR Part 75 for SO, mass emissions, the WEB source shall include the following

information in the monitoring plan:

(8) parameter monitored;

(b) type offuel measured, maximum fuel flow rate, units ofmeasure, and basis ofmaximum

fuel flow rate (i.e., upper range value or unit maximum) for each fuel flowmeter;

(c) test method used to check the accuracy of each fuel flowmeter;

(d) submission status ofthe data;

(e) monitoring system identification code;

(I) the method used to demonstrate that the unit qualifies for monthly gross calorific value

(GCY) sampling or for daily or annual fuel sampling for sulfur conten~ as applicable;

(g) a schematic diagram identifying the relationship between the unit, all fuel supply lines, the

fuel flowmeter(s), and the stack(s); the schematic diagram must depict the installation location of each fuel

flowmeter and the fuel sampling location(s); and comprehensive and separate schematic diagrams shall be used to

describe groups of units using a common pipe;

(h) for units using the optional default SO, emission rate for "pipeline natural gas" or "natural

gas" in appendix D to 40 CFR Part 75, the information on the sulfur content ofthe gaseous fuel used to demonstrate

compliance with either Section 2.3.1.4 or 2.3.2.4 of appendix D to 40 CFR Part 75;

(i) for units using the 720 hour test under Section 2.3.6 of appendix D to 40 CFR Part 75 to

determine the required sulfur sampling requirements, report the procedures and results ofthe test; and

(j) for units using the 720 hour test under Section 2.3.5 of appendix D to 40 CFR Part 75 to

determine the appropriate fuel GCY sampling frequency, report the procedures used and the results ofthe test;

(2) for each SO, emitting unit for which the WEB source uses the low mass emission excepted

methodology ofsection 75.19 of 40 CFR Part 75, the WEB source shall include the following information in the

monitoring plan that accompanies the initial certification application:

(a) the results ofthe analysis performed to qualify as a low mass emissions unit under Section

75.19(c) of 40 CFR Part 75; this report shall include either the previous three years actual or projected emissions;

and the following items shall be included: a) current calendar year of application; b) type of qualification; c) years

one, two, and three; d) annual measured, estimated or projected 802 mass emissions for years one. two, and three;

and e) annual operating hours for years one, two, and three;

(b) a schematic diagram identifying the relationship between the unit, all fuel supply lines and

tanks, any fuel flowmeter(s), and the stack(s); and comprehensive or separate schematic diagrams shall be used to

describe groups of units using a common pipe;

20.11.46 NMAC 15
(c) for units which use the long term fuel flow methodology under section 75.19(c)(3) to 40

CFR Part 75, a diagram ofthe fuel flow to each unit or group of units and a detailed description ofthe procedures

used to determine the long term fuel flow for a unit or group of units for each fuel combusted by the unit or group of

units;

(d) a statement that the unit burns only gaseous fuel(s) and/or fuel oil and a list ofthe fuels that

are burned or a statement that the unit is projected to burn only gaseous fuel(s) and/or fuel oil and a list ofthe fuels

that are projected to be burned;

(e) a statement that the unit meets the applicability requirements in Sections 75.19(a) and (b) of

40 CFR Part 75 with respect to SO, emissions; and

(I) any unit historical actual, estimated and projected SO, emissions data and calculated SO,

emissions data demonstrating that the unit qualifies as a low mass emissions unit under Sections 75.19(a) and (b) of

40 CFR Part 75.

(3) for each gas-frred unit the WEB source shall include the following in the monitoring plan: current

calendar year, fuel usage data as specified in the defmition of gas-frred in Section 72.2 of 40 CFR Part 72, and an

indication ofwhether the data are actual or projected data.

I. The specific elements of a monitoring plan under Subsection D of 20.11.46.16 NMAC shall not be

part of an operating permit for a WEB source issued in accordance with the Title V ofthe Clean Air Act, and

modifications to the elements ofthe plan shall not require a permit modification.

J. Certification and recertification:

(1) All monitoring systems are subject to initial certification and recertification testing as specified in

40 CFR Part 75, 20.11.46.21 NMAC or; 20.11.46.22 NMAC. Certification or recertification of a monitoring system

by the EPA for a WEB source that is subject to 40 CFR Part 75 under a requirement separate from 20.11.46 NMAC

shall constitute certification under the WEB Trading Program

(2) The WEB source with an SO, emitting unit not otherwise subject to 40 CFR Part 75 that monitors

SO, mass emissions in accordance with 40 CPR Part 75 to satisfy the requirements of 20.11.46.16 NMAC shall

perform all ofthe tests required by that regulation and shall submit the following:

(a) a test notice, not later than 21 days before the certification testing ofthe monitoring system,

provided that the department may establish additional requirements for adjusting test dates after this notice as part of

the approval ofthe initial monitoring plan under Subsection F of 20.11.46.16 NMAC;

(b) an initial certification application within 45 days after testing is complete;

(c) a monitoring system shall be considered provisionally certified while the application is

pending, and the system shall be deemed certified ifthe department does not approve or disapprove the system

within six months after the date on which the application is submitted;

(d) both at the time ofthe initial certification or recertification application submission and at

the time ofthe audit, if an audit of any monitoring certified under 20.11.46 NMAC, and a review ofthe initial

certification or recertification application, reveal that any system or component should not have been certified or

recertified because it did not meet a particular performance specification or other requirement of 20.11.46 NMAC,

the department will issue a notice ofdisapproval ofthe certification status ofsuch system or component; for the

purposes ofParagraph (2) of Subsection J of20.11.46.16 NMAC, an audit shall be either a field audit ofthe facility

or an audit of any information submitted to the department regarding the facility; by issuing the notice of

disapproval, the certification status is revoked prospectively, and the data measured and recorded shall not be

considered valid quality-assured data from the date ofissuance ofthe notification ofthe revoked certification status

until the date and time that the WEB source completes subsequently approved initial certification or recertification

tests in accordance with the procedures in Subsection J of 20.11.46.16 NMAC; and the WEB source shall apply the

substitute data procedures in Subsection L of 20.11.46.16 NMAC to replace, prospectively, all ofthe invalid,

non-quality-assured data for each disapproved system or component.

K. Ongoing quality assurance and quality control: The WEB source shall satisfy the applicable

quality assurance and quality control requirements of 40 CFR Part 75 or, ifthe WEB source is subject to a WEB

protocol in 20.11.46.21 NMAC, the applicable quality assurance and quality conrrol requirements in 20.11.46.21

NMAC on and after the date that certification testing commences.

L. Substitute data procedures:

(1) For any period after certification testing is complete in which quality assured, valid data are not

being recorded by a monitoring system certified and operating in accordance with 20.11.46 NMAC, missing or

invalid data shall be replaced with substitute data in accordance with 40 CPR Part 75 or, ifthe WEB source is

subject to a WEB protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC, with substitute data in accordance with

20.11.46.21 NMAC.

20.11.46 NMAC 16
".

(2) For an SO, emitting unit that does not have a certified or provisionally certified monitoring

system in place as of the beginning of the first control period for which the unit is subject to the WEB trading

program. the WEB source shall:

(a) if the WEB Source will use a CEMS to comply with 20.11.46.16 NMAC, substitute the

maximum potential concentration of SO, for the unit and the maximum potential flow rate, as determined in

accordance with 40 CFR Part 75; and the procedures for conditional data validation under Section 75.20(b)(3) may

be used for any monitoring system under 20.11.46 NMAC that uses these 40 CFR Part 75 procedures, as applicable;

(b) if the WEB source will use the 40 CFR Part 75 appendix D methodology, substitute the

maximum potential sulfur content, density or gross calorific value for the fuel and the maximum potential fuel flow

rate, in accordance with Section 2.4 of appendix D to 40 CFR Part 75;

(c) if the WEB source will use the 40 CFR Part 75 methodology for low mass emissions units,

substitute the SO, emission factor required for the unit as specified in 40 CFR 75.19 and the maximum rated hourly

heat input, as defmed in 40 CFR 72.2; or

(d) if using a protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC, follow the procedures in

the applicable protocol.

M. Compliance deadline:

(1) The initial monitoring plan shall be submitted by the following dates:

(a) for each source that is a WEB source on or before the program trigger date, the monitoring

plan shall be submitted 180 days afler such program trigger date;

(b) for any existing source that becomes a WEB source afler the program trigger date, the

monitoring plan shall be submitted by September 30 of the year following the inventory year in which the source

exceeded the emissions threshold;

(c) for any new WEB source, the monitoring plan shall be included with the permit application

under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC.

(2) A detailed monitoring plan under Subsection E of 20.11.46.16 NMAC shall be submitted no later

than 45 days prior to commencing certification as required by Paragraph (3) of Subsection M of 20.11.46.16

NMAC.

(3) Emission monitoring systems shall be installed, operational and shall have met all ofthe

certification testing requirements of this 20.11.46.16 NMAC (including any referenced in 20.11.46.21 NMAC or

20.11.46.22 NMAC ) by the following dates:

(a) for each source that is a WEB source on or before the program trigger date, two years prior

to the start ofthe first control period as described in 20.11.46.19 NMAC;

(b) for any existing SOurce that becomes a WEB source afler the program trigger date, one year

afler the due date for the monitoring plan under Subparagraph (b) of Paragraph (2) of Subsection M of 20.11.46.16

NMAC.

(c) for any new WEB source, or any new unit at a WEB source under Subparagraph (a) or (b)

of Paragraph (3) of Subsection M of 20.11.46.16 NMAC, the earlier of 90 unit operating days or 180 calendar days

after the date the new source commences operation.

(4) The WEB source shall submit test notices and certification applications in accordance with the

deadlines set forth in Paragraph (2) ofSubsection J of 20.11.46.16 NMAC.

(5) For each applicable control period, the WEB source shall submit each quarterly report under

Subsection a of 20.11.46.16 NMAC by no later than 30 days afler the end of each calendar quarter and shall submit

the annual report under Subsection a of 20.11.46.16 NMAC no later than 60 days afler the end of each calendar

year.

N. Record keeping:

(1) Except as provided in Paragraph (2) of Subsection N of 20.11.46.1 06 NMAC, the WEB source

shall keep copies of all reports, registration materials, compliance certifications, sulfur dioxide emissions data,

quality assurance data, and other submissions under 20.11.46 NMAC for a period offive years. In addition, the

WEB source shall keep a copy of all account certificates of representation for the duration ofthis program Unless

otherwise requested by the WEB source and approved by the department, the copies shall be kept on site at the

source.

(2) The WEB source shall keep records of all operating hours, quality aSSurance activities, fuel

sampling measurements, hourly averages for S02, stack flow, fuel flow, or other continuous measurements, as

applicable, and any other applicable data elements specified in 20.11.46.16 NMAC, 20.11.46.21 NMAC or in

20.11.46.22 NMAC. The WEB source shall maintain the applicable records specified in 40 CFR Part 75 for any

SO, emitting unit that uses a 40 CFR Part 75 monitoring method to meet the requirements of 20.11.46.16 NMAC.

20.11.46 NMAC 17
O. Reporting.

(1) Quarterly reports. For each S02 emitting unit, the account representative shall submit a

quarterly report within 30 days after the end of each calendar quarter. The report shall be in a fonnat specified by

the department to include hourly and quality assurance activity infonnation and shall be submitted in a manner

compatible with the emissions tracking database designed for the WEB trading program. Ifthe WEB source

submits a quarterly report under 40 CFR Part 75 to the EPA administrator, no additional report under Paragraph (I)

of Subsection°of 20.11.46.16 NMAC shall be required, provided, however, that the department may require that a

copy ofthat report (or a separate statement of quarterly and cumulative annual S02 mass emissions) be submitted

separately to the department.

(2) Annual report. Based on the quarterly reports, each WEB source shall submit an annual

statement oftotal annual S02 emissions for all S02 emitting units at the source. The annual report shall identify the

total emissions for all units monitored in accordance with Subsection A of 20.11.46.16 NMAC and the total

emissions for all units with emissions estimated in accordance with Subsection B of 20.11.46.16 NMAC. The

annual report shall be submitted within 60 days after the end of a control period.

(3) Ifthe department so directs, any monitoring plan, report, certification, recertification, or

emissions data required to be submitted under 20.11.46.16 NMAC shall be submitted to the tracking system

administrator.

(4) The department may review and reject any report submitted under Subsection

°of 20.11.46.16

NMAC that contains errors or fails to satisfy the requirements of 20.11.46.16 NMAC, and the account representative

shall resubmit the report 10 correct any deficiencies.

(5) A WEB source may petition for an alternative to any requirement specified in Paragraph (2) of

Subsection A of20.11.46.16 NMAC. The petition shall require approval of the department and the EPA

administrator. Any petition submitted under Paragraph (5) of Subsection°of 20.11.46.16 NMAC shall include

sufficient infonnation for the evaluation ofthe petition, including, at a minimwn, the following infonnation:

(a) identification ofthe WEB source and applicable S02 emitting unit(s);

(b) a detailed explanation ofwhy the proposed alternative is being suggested in lieu ofthe

requirement;

(c) a description and diagram of any equipment and procedures used in the proposed

alternative, if applicable;

(d) a demonstration that the proposed alternative is consistent with the pwposes ofthe

requirement for which the alternative is proposed and is consistent with the pwposes of 20.11.46 NMAC and that

any adverse effect of approving such alternative will be de minimis; and

(e) any other relevant infonnation that the department may require.

(6) For any monitoring plans, reports, or other infonnation submitted under 20.11.46.16 NMAC, the

WEB source shall ensure that, where applicable, identifying infonnation is consistent with the identifying

infonnation provided in the most recent certificate ofrepresentation for the WEB source submitted under

20.11.46.12 NMAC.

[20.11.46.16NMAC-N,12/31/03]

20.11.46.17 ALLOWANCE TRANSFERS:

A. Procedure: To transfer allowances, the account representative shall submit the following

infonnation to the tracking system administrator:

(1) the transfer account number(s) identifying the transferor account;

(2) the transfer account number(s) identifying the transferee account;

(3) the serial number of each allowance to be transferred; and

(4) the transferor's account representative's name and signature and date ofsubmission.

B. Deadline: The allowance transfer deadline is midnight pacific standard time March 1 of each year

(or ifthis date is not a business day, midnight ofthe first business day thereafter) following the end ofthe control

period. By this time, the transfer ofthe allowances into the WEB source's compliance account must be correctly

submitted to the tracking system administrator in order to demonstrate compliance under Subsection A of

20.11.46.19 NMAC for that control period.

C. Retirement of allowances: To transfer allowances for the purpose of retirement, the account

representative shall submit the following infonnation to the tracking system administrator:

(1) the transfer account number(s) identifying the transferor account;

(2) the serial number of each allowance to be retired; and

:

20.11.46 NMAC 18
•

(3) the transferor's account representative's name and signamre and date ofsubmission accompanied

by a signed statement acknowledging that each retired a\lowance as no longer available for furore transfers from or

to any accOlUlt.

[20.11.46.17 NMAC - N, 12/31/03]

20.11.46.18 USE OF ALLOWANCES FROM A PREVIOUS YEAR:

A. Any allowance that is held in a compliance account or general account shall remain in such an

account unless and until the a\lowance is deducted in conjunction with the compliance process, or transferred to

another account.

B. In order to demonstrate compliance under Subsection A of20.1 1.46.19 NMAC for a control

period, WEB sources sha\l only use allowances allocated for that current control period or any previous year.

Because all allowances held in a special reserve compliance accOlUlt for a WEB source that monitors certain units in

accordance with Subsection B of 20.11.46.16 NMAC will be deducted for compliance for each control period, no

banking ofsuch allowances for use in a subsequent year is permitted by 20.11.46 NMAC.

C. Ifflow control procedures for the current control period have been triggered as outlined in Section

F(9)(b) ofChapter VI ofthe SO, milestones and backstop trading program implementation plan element, then the

use of a\lowances that were a\located for any previous year sha\l be limited as fo\lows:

(1) the number ofa\lowances that are held in each compliance account and general account as ofthe

a\lowance transfer deadline for the immediately previous year and that were a\located for any previous year sha\l be

determined;

(2) the number determined in Paragraph (I) of Subsection C of20.1 1.46.18 NMAC sha\l be

multiplied by the flow control ratio established in accordance with Section F(9)(b) ofthe SO, milestones and

backstop trading program implementation plan element to determine the number of a\lowances that were a\located

for a previous year that can be used without restriction for the current control period;

(3) a\lowances that were a\located for a previous year in excess ofthe number determined in

Paragraph (2) of Subsection C of20.1 1.46.18 NMAC may also be used for the current control period; and ifsuch

a\lowances are used to make a deduction, two a\lowances shall be deducted for each deduction of one a\lowance

required under 20.1 1.46.19 NMAC.

D. Special provisions for the year 2018. After compliance with the 2017 a\lowance limitation has

been determined in accordance with Subsection A of 20.11.46.19 NMAC, allowances a\located for any year prior to

2018 shall not be used for determining compliance with the 2018 allowance limitation or any furore a\lowance

limitation.

[20.11.46.18 NMAC - N, 12/31/03]

20.11.46.19 COMPLIANCE:

A. Compliance with allowance limitations:

(1) In accordance with Paragraph (2) of Subsection A of20.11.46.19 NMAC and 20.11.46.18

NMAC, the WEB source shall hold allowances, as ofthe a\lowance transfer deadline in the WEB source's

compliance account (together with any current control year a\lowances held in the WEB source special reserve

compliance account under Subsection B of 20.11.46.16 NMAC) in an amount not less than the total SO, emissions

for the control period from the WEB source, as determined under the monitoring and reporting requirements of

20.11.46.16 NMAC.

(a) For each source that is a WEB source on or before the program trigger date, the fIrst control

period is the calendar year that is six years fo\lowing the calendar year for which SO, entissions exceeded the

milestone in accordance with procedures in Section A ofthe SO, milestones and backstop trading program

implementation plan element.

(b) For any existing source that becomes a WEB source after the program trigger date, the fIrst

control period is the calendar year that is four years fo\lowing the inventory year in which the source exceeded the

SO, emissions threshold.

(c) For any new WEB source after the program trigger date, the fIrst control period is the fIrst

fu\l calendar year that the source is in operation.

(d) Ifthe WEB trading program is triggered in accordance with the 2013 review procedures in

Section D(7) ofChapter VI of the SO, milestones and backstop trading program implementation plan element, the

fIrst control period for each source that is a WEB source on or before the program trigger date is the year 2018.

(2) A\lowance transfer deadline: An a\lowance may only be deducted from the WEB source's

compliance aCcOlUlt if:

20.11.46 NMAC 19
(a) the allowance was allocated for the current control period or meets the requirements in

20.11.46.18 NMAC for use of allowances from a previous control period, and

(b) the allowance was held in the WEB source's compliance account as ofthe allowance

transfer deadline for the current control period, or was transferred into the compliance account by an allowance

transfer correctly submitted for recording by the allowance transfer deadline for the current control period.

(3) Compliance with allowance limitations shall be determined as follows:

(a) the total annual SO, emissions for all SO, emitting units at the source that are monitored

under Subsection B of 20.11.46.16 NMAC, as reported by the source in Paragraph (2) and Paragraph (4) of

Subsection 0 of 20.11.46.16 NMAC, and recorded in the emissions tracking database, shall be compared to the

allowances held in the source's special reserve compliance account as ofthe allowance transfer deadline for the

current control period, adjusted in accordance with 20.11.46.18 NMAC; if the emissions are equal to or less than the

allowances in such account, all such allowances shall be retired to satisfy the obligation to hold allowances for such

emissions; and ifthe total emissions from such units exceeds the allowances in such special reserve account, the

WEB source shall account for such excess emissions in Subparagraph (b) ofParagraph (3) of Subsection A of

20.11.46.19 NMAC;

(b) the total annual SO, emissions for all SO, emitting units at the source that are monitored

under Subsection A of20.11.46.16 NMAC, as reported by the source as required by Paragraph (2) and Paragraph (4)

of Subsection 0 of 20.11.46.16 NMAC, and recorded in the emissions tracking database, together with any excess

emissions as calculated in the Subparagraph (a) of Paragraph (3) of Subsection A of 20.11.46.19, shall be compared

to the allowances held in the source's compliance account as ofthe allowance transfer deadline for the current

control period, adjusted in accordance with 20.11.46.18 NMAC.

(4) Other than allowances in a special reserve compliance account for units monitored under

Subsection B of 20.11.46.16 NMAC, to the extent consistent with 20.11.46.18 NMAC, allowances shall be deducted

for a WEB source for compliance with the allowance limitation as directed by the WEB source's account

representative. Deduction of any other allowances as necessary for compliance with the allowance limitation shall

be on a fIrst-in, fIrst-out accounting basis in the order ofthe date and time oftheir recording in the WEB source's

compliance account, beginning with the allowances allocated to the WEB source and continuing with the allowances

transferred to the WEB source's compliance account from another compliance account or general account. The

allowances held in a special reserve compliance account pursuant to Subsection B of20.11.46.16 NMAC shall be

deducted as specifIed in Subparagraph (a) ofParagraph (3) of Subsection A of20.11.46.19 NMAC.

B. Certification of compliance:

(I) For each control period in which a WEB source is subject to the allowance limitation, the account

representative ofthe source shall submit to the department a compliance certifIcation report for the source.

(2) The compliance certifIcation report shall be submitted no later than the allowance transfer

deadline of each control period, and shall contain the following:

(a) identifIcation of each WEB source;

(b) at the account representative's option, the serial numbers ofthe allowances that are to be

deducted from a source's compliance account for compliance with the allowance limitation; and

(c) the compliance certifIcation report according to Paragraph (3) of Subsection B of

20.11.46.19 NMAC.

(3) In the compliance certifIcation report, the account representative shall certify, based on reasonable

inquiry ofthose persons with primary responsibility for operating the WEB source in compliance with the WEB

trading program, whether the WEB source for which the compliance certifIcation is submitted was operated during

the control period covered by the report in compliance with the requirements ofthe WEB trading program

applicable to the source including:

(a) whether the WEB source operated in compliance with the SO, allowance limitation;

(b) whether SO, emissions data has been submitted to the department in accordance with

Subsection A of20.11.46.16 NMAC and other applicable guidance, for review, revision as necessary, and

fInalization for forwarding to the SO, allowance tracking system for recording;

(c) whether the monitoring plan that governs the WEB source has been maintained to reflect

the actual operation and monitoring of the source, and contains all information necessary to artribute SO, emissions

to the source, in accordance with Subsection A of20.11.46.16 NMAC;

(d) whether all the SO, emissions from the WEB source, if applicable, were monitored or

accounted for either through the applicable monitoring or through application ofthe appropriate missing data

procedures;

.-

20.11.46 NMAC 20
,

,

(e) if applicable, whether any SO, emitting unit for which the WEB source is not required to

monitor in accordance with Paragraph (3) of Subsection A of20.11.46.16 NMAC remained permanently retired and

had no emissions for the entire applicable period; and

(f) whether there were any changes in the method of operating or monitoring the WEB source

that required monitor recertification; and ifthere were any such changes, the report shall specify the nature, reason,

and date ofthe change, the method to determine compliance stalus subsequent to the change, and specifically, the

method to determine SO, emissions.

C. Penalties for any WEB source exceeding its allowance limitations:

(1) Allowance deduction penalties:

(a) Ifemissions from a WEB source exceed the allowance limitation for a control period, as

determined in accordance with Subsection A of 20.11.46.19 NMAC, the source's allowance held in its compliance

account will be reduced by an amount equal to two times the source's tons of excess emissions. Ifthe compliance

account does not have sufficient allowances allocated for that control period, the required number of allowances

shall be deducted from the WEB source's compliance account regardless ofthe control period for which they were

allocated, once allowances are recorded in the account.

(b) Any allowance deduction required under 20.11.46.19 NMAC shall not reduce or otherwise

affect the liability ofthe owners and operators ofthe WEB source for any fme, penalty or assessment or their

obligation to comply with any other remedy, for the same violation, as ordered under the Clean Air Act,

implementing regulations or applicable state or tribal law. Accordingly, a violation can be assessed each day ofthe

control period for each ton of SO, emissions in excess ofits allowance limitation ifthe department so chooses.

(2) Financial penalties: A fmancial penalty of $5,000 per ton of SO, emissions in excess ofthe

WEB source's allowance limitation shall be levied. Each ton represents a separate violation.

D. Liability:

(1) WEB Source liability for non-compliance: Separate from and regardless of any automatic

penalties assessed for allowance deduction penalty and financial penalty, a WEB source that violates any

requirement of20.11.46 NMAC is subject to administrative, civil and criminal penalties under the Air Quality

Control Act and the Clean Air Act. Each day ofthe control period is a separate violation, and each ton of SO,

emissions in excess of a source's allowance limitation is a separate violation.

(2) General liability:

(a) Any provision ofthe WEB trading program that applies to a source or an account

representative shall apply also to the owners and operators ofsuch source.

(b) Any person who violates any requirement or prohibition ofthe WEB trading program shall

be subject to enforcement pursuant to applicable state, tribal Or federal law.

(c) Any person who knowingly makes a false material statement in any record, submission, or

report under this WEB trading program shall be subject to criminal enforcement pursuant to the applicable state,

tribal or federal law.

[20.11.46.19NMAC-N,12/31/03]

20.11.46.20 SPECIAL PENALTY PROVISIONS FOR YEAR 2018 MILESTONE:

A. Ifthe WEB trading program is triggered as outlined in Section D ofChapter VI ofthe SO,

milestones and backstop trading program implementation plan element, and the first control period will not occur

until after the year 2018, the following provisions shall apply for the 2018 emissions year.

(1) All WEB sources shall register, and open a compliance account within 180 days after the program

trigger date, in accordance with Subsection A of20.11.46.13 NMAC and 20.11.46.15 NMAC.

(2) The tracking system ad.ministrator shall record the allowances for the 2018 control period for each

WEB source in the source's compliance account once the department allocates the 2018 allowances under Section

F(I) and G(l) ofChapter VI ofthe SO, milestones and backstop trading program implementation plan element.

(3) The allowance transfer deadline is midnight pacific standard time on May 30, 2021. WEB

sources may transfer allowances as provided in Subsection A of 20.11.46.17 NMAC until the allowance transfer

deadline.

(4) A WEB source shall hold allowances allocated for 2018 including those transferred into the

compliance account by an allowance transfer correctly submitted by the allowance transfer deadline, in an amount

not less than the WEB source's total SO, emissions for 2018. Emissions shall be determined using the pre-trigger

monitoring provisions in Section B ofthe SO, milestones and backstop trading program implementation plan

element, and 20.11.46.9 NMAC.

20.11.46 NMAC 21
20.11.46.21

A.

(1)

(5) An allowance deduction penalty and fmancial penalty shall be assessed and levied in accordance

with Subsection D of 20.11.46.18 NMAC, Paragraph (4) of Subsection A of 20.11.46.19 NMAC and Subsection C

of 20.11.46.19 NMAC except that SO, emissioIlS shall be determined under Paragraph (4) of Subsection A of

20.11.46.20 NMAC.

B. The provisions in 20.11.46.20 NMAC shall continue to apply for each year after the 2018

emission year until:

(1) the fIrst control period under the WEB trading program; or

(2) the department determines, in accordance with Section D(6)(j) of Chapter VI ofthe SO,

milestones and backstop trading program implementation plan element, that the 2018 S02 milestone has been met.

C. IfprovisioIlS of Subsection A or 20.11.46.20 NMAC was implemented, the following shall apply

to each emissioIlS year after the 2018 emissioIlS year:

(1) the tracking system administrator will record the allowances for the control period for the specifIc

year for each WEB source in the source's compliance account once the department allocates the allowances under

Section F(l) ofChapter VI ofthe S02 milestones and backstop trading program implementation plan element;

(2) the allowance traIlSfer deadline is midnight pacifIc standard time on March I of each year (or if

this date is not a business day, midnight ofthe fIrst business day thereafter) following the end ofthe specific

emissioIlS year. WEB sources may traIlSfer allowances as provided in Subsection A of 20.11.46.17 NMAC until the

allowance transfer deadline.

(3) a WEB source must hold allowances allocated for that specifIc emissioIlS year, or any year after

2018, including those traIlSferred into the compliance account by an allowance transfer correctly submitted by the

allowance transfer deadline, in an amount not less than the WEB source's total SO, emissioIlS for the specific

emissioIlS year; and emissioIlS are determined using the pre-trigger monitoring provisioIlS in Section D ofthe SO,

milestones and backstop trading program implementation plan element, and 20.11.46.9 NMAC;

(4) an allowance deduction penalty and fmancial penalty shall be assessed and levied in accordance

with Subsection D of20.11.46.18 NMAC, Paragraph (4) of Subsection A of20.11.46.19 NMAC, and Subsection C

of 20.11.46.19 NMAC, except that SO, emissioIlS shall be determined under Paragraph (3) of Subsection C of

20.11.46.20 NMAC.

[20.11.46.20 NMAC - N, 12/31/03]

SO, MONITORING OF FUEL GAS COMBUSTION DEVICES:

Applicability.

The provisioIlS ofthis protocol are applicable to fuel gas combustion devices at petroleum

refmeries.

(2) Fuel gas combustion devices include boilers, process heaters, and flares used to burn fuel gas

generated at a petroleum refmery.

(3) Fuel gas means any gas, which is generated, and combusted at a petroleum refmery. Fuel gas

does not include:

(a) natural gas, unless combined with other gases generated at a petroleum refmery;

(b) gases generated by a catalytic cracking unit catalyst regenerator;

(c) gases generated by fluid coking burners;

(d) gases combusted to produce sulfur or sulfuric acid; or

(e) process upset gases generated due to startup, shutdown, or malfunctioIlS.

B. Monitoring Requirements.

(1) Except as provided in Paragraph (2) and Paragraph (3) of Subsection B of 20.11.46.21 NMAC,

fuel gas combustion devices shall use a continuous fuel gas monitoring system (CFGMS) to determine the total

sulfur content (reported as H,S) ofthe fuel gas mixture prior to combustion, and continuous fuel flow meters to

determine the amount offuel gas burned.

(a) Fuel gas combustion devices having a common source of fuel gas may be monitored for

sulfur content at one location, ifmonitoring at that location is representative ofthe sulfur content ofthe fuel gas

being burned in any fuel gas combustion device.

(b) The CFGMS shall meet the performance requirements in performance specifIcation 2 in

appendix B to 40 CFR Part 60, and the following:

(I) continuously monitor and record the concentration by volume of total sulfur

compounds in the gaseous fuel reported as ppmv H,S;

(Ii) have the span value set so that the majority ofreadings faU between 10 and 95% of

the range;

,

•

20.11.46 NMAC 22
(iii) record negative values of zero drift, for initial certification and daily calibration error

tests;

(Iv) calibration drift shall be 5.0% of the span; and

(v) methods 15A, 16, or approved alternatives for total sulfur, are the reference methods

for the relative accuracy test; and the relative accuracy test shall include a bias test in accordance with Paragraph (3)

of Subsection D of 20.11.46.21 NMAC.

(0) All continuous fuel flow meters shall comply with the provisions of Section 2.1.5 of

Appendix D to 40 CFR Part 75.

(d) The hourly rnass SO, emissions rate for all the fuel combustion devices monitored by this

approach shall be calculated using the following equation:

E, (Cs)(Q,)(K); where:

E, Total SO, emissions in Ib/hr from applicable fuel gas combustion devices;

Cs =Sulfur content ofthe fuel gas as H,S (ppmv);

Q, Fuel gas flow rate to the applicable fuel gas combustion devices (scfi'hr); and

K = 1.660 X 10.7(lb/scf)/ppmv

(2) In place of a CFGMS in Paragraph (I) of Subsection B of 20.11.46.21 NMAC, fuel gas

combustion devices having a common source offuel gas rnay be monitored with an SO, CEMS and flow CEMS and

(if necessary) a moisture monitoring system at only one location, ifthe CEMS monitoring at that location is

representative of the SO, emission rate (lb SO,lscf fuel gas burned) of all applicable fuel gas combustion devices.

Continuous fuel flow meters shall be used in accordance with Paragraph (2) of Subsection B of 20.11.46.21 NMAC,

and the fuel gas combustion device monitored by a CEMS shall have separate fuel metering.

(a) Each CEMS for SO, and flow, and (if applicable) moisture, shall comply with the operating

requirements, perfonnance specifications, and quality assurance requirements of 40 CFR Part 75.

(b) AIl continuous fuel flow meters shall comply with the provisions of Section 2.1.5 of

appendix D to 40 CFR Part 75.

(0) The SO, hourly mass emissions rate for all the fuel gas combustion devices monitored by

this approach shall be determined by the ratio ofthe amount offuel gas burned by the CEMS-monitored fuel gas

combustion device to the total fuel gas burned by all applicable fuel gas combustion devices using the following

equation:

E, = (Em)(Q,)/(Q.,); where:

E, Total SO, emissions in Ib/hr from applicable fuel gas combustion devices;

Em SO, emissions in Ib/hr from the CEMS-monitored fuel gas combustion device, calculated using Equation F-I

or (if applicable) F-2 in appendix F to 40 CFR Part 75;

Q, Fuel gas flow rate (scfi'hr) from applicable fuel gas combustion devices; and

Qm Fuel gas flow rate (scf/hr) to the CEMS-monitored fuel gas combustion device.

(3) In place of a CFGMS in Paragraph (I) of Subsection B of 20.11.46.21 NMAC, fuel gas

combustion devices having a common source offuel gas may be monitored with an SO, - diluent CEMS at only one

location, ifthe CEMS monitoring at that location is representative of the SO, emission rate (lb SO,lmmBtu) of all

applicable fuel gas combustion devices. Ifthis option is selected, the owner or operator shall conduct fuel gas

sampling and analysis for gross calorific value (GCV), and shall use continuous fuel flow metering in accordance

with Paragraph (I) of Subsection B of 20.11.46.21 NMAC, with separate fuel metering for the CEMS-monitored

fuel gas combustion device.

(a) Each SO, _diluent CEMS shall comply with the applicable provisions for SO, monitors and

diluent monitors in 40 CFR Part 75, and shall use the procedures in Section 3 of appendix F to 40 CFR Part 75 for

detennining SO, emission rate (lb/mmBtu) by substituting the term SO, for NO, in that section, and using a K factor

of 1.660 x 10. 7 (lb/scf) ppmv instead ofthe NO, K factor.

(b) All continuous fuel flow meters and fuel gas sampling and analysis for GCV to determine

the heat input ratio shall comply with the applicable provisions of Section 2.1.5 and 2.3.4 of appendix D to 40 CFR

Part 75.

(0) The SO, hourly mass emissions rate for all the fuel gas combustion devices monitored by

this approach shaIl be determined by the ratio ofthe fuel gas heat input to the CEMS-monitored fuel gas combustion

device to the total fuel gas heat input to all applicable fuel gas combustion devices using the following equation:

E, =(E.,)(Q,)/(GCV) 110'; where:

E, Total SO, emissions in Ibs/hr from applicable fuel gas combustion devices;

Em =SO, emissions in Ib/mmBtu from the CEMS - monitored fuel gas combustion device;

Q, Fuel gas flow rate (scfi'hr) to the applicable fuel gas combustion devices;

20.11.46 NMAC 23
GCV =Fuel Gross Calorific Value (Btu/sc!); and

I0' Conversion from Btu to million Btu.

(d) The owner or operator shall calculate total SO, mass emissions for each calendar quarter

and each calendar year based on the emissions in Ib/hr and Equations F-3 and F-4 in appendix F to 40 CFR Part 75.

C. Certification and recertification requirements. All monitoring systems are subject to initial

certification and recertification testing as fol1ows:

(1) the owner or operator shal1 comply with the initial testing and calibration requirements in

performance specification 2 in appendix B of 40 CFR Part 60 and Subparagraph (b) ofParagraph (I) of Subsection

B of 20.11.46.21 NMAC for each CFGMS;

(2) each CEMS for SO, and flow or each SO,-diluent CEMS shall comply with the testing and

calibration requirements specified in 40 CFR Part 75, section 75.20 and Appendices A and B, except that each SO,-

diluent CEMS shall meet the relative accuracy requirements for a NOx-diluent CEMS (lb/rnmBtu);

(3) a continuous fuel flow meter shal1 comply with certification requirements in section 2.1.5 of

appendix D of 40 CFR Part 75.

D. Quality assurance/quality control requirements.

(1) A quality assurance and quality control (QA/QC) plan shal1 be developed and implemented for

each CEMS for SO, and flow or the SO,-diluent CEMS in compliance with Sections I, 1.1, and 1.2 of appendix B

of40 CFR Part 75.

(2) A quality assurance and quality control plan shall be developed and implemented for each

continuous fuel flow meter and fuel sampling and analysis in compliance with Sections I, 1.1, and 1.3 appendix B of

40 CFR Part 75. The owner or operator shall meet the requirements in section 2.1.6 of appendix D to 40 CFR Part

75, and may use the procedures set forth in section 2.1.7 ofthat appendix.

(3) A quality assurance and quality control plan shall be developed and implemented for each

CFGMS in compliance with Sections I and l.l of appendix B to 40 CFR Part 75, and the fol1owing:

(a) perform a daily calibration error test of each CFGMS at two gas concentrations, one low

level and one high level; and calculate the calibration error as described in appendix A to 40 CFR Part 75; an out of

control period occurs whenever the error is greater than 5.0 percent ofthe span value;

(b) in addition to the daily calibration error test, an additional calibration error test shall be

perfonned whenever a daily calibration error test is failed, whenever a monitoring system is returned to service

following repairs or corrective actions that may affect the monitor measurements, and after making manual

calibration adjustments;

(c) perform a linearity test once every operating quarter; calculate the linearity as described in

appendix A to 40 CFR Part 75; and an out of control period occurs whenever the linearity error is greater than 5.0

percent ofa reference value, and the absolute value ofthe difference between average monitor response values and a

reference value is greater than 5.0 ppm;

(d) perform a relative accuracy test audit once every four operating quarters. Calculate the

relative accuracy as described in appendix A to 40 CFR Part 75; and an out of control period occurs whenever the

relative accuracy is greater than 20.0 percent ofthe mean value ofthe reference method measurements;

(e) using the results ofthe relative accuracy test audit, conduct a bias test in accordance with

appendix A to 40 CFR Part 75, and calculate and apply a bias adjustment factor ifrequired.

E. Missing data procedures.

(1) For any period in which valid data are not being recorded by an SO, CEMS or flow CEMS

specified in 20.11.46.21 NMAC, missing or invalid data shal1 be replaced with substitute data in accordance with the

requirements in Subpart D of 40 CFR Part 75.

(2) For any period in which valid data are not being recorded by an SO,-diluent CEMS specified in

20.11.46.21 NMAC, missing or invalid data shall be replaced with substitute data on a rate basis (lb/rnmBtu) in

accordance with the requirements for SO, monitors in Subpart D of 40 CFR Part 75.

(3) For any period in which valid data are not being recorded by a continuous fuel flow meter or for

fuel gas GCV sampling and analysis specified in 20.11.46.21 NMAC, missing or invalid data shall be replaced with

substitute data in accordance with missing data requirements in Section 2.4 of appendix D to 40 CFR Part 75.

(4) For any period in which valid data are not being recorded by the CFGMS specified in 20.11.46.21

NMAC, hourly missing or invalid data shall be replaced with substitute data in accordance with the missing data

requirements for units performing hourly gaseous fuel sulfur sampling in Section 2.4 of appendix D to 40 CFR Part

75.

20.11.46 NMAC 24
F. Monitoring plan and reporting requirements. In addition to the general monitoring plan and

reporting requirements of 20.11.46.16 NMAC, the owner or operator shall meet the following additional

requirements:

(I) the monitoring plan shaH identify each group of units that is monitored by a single monitoring

system under 20.11.46.21 NMAC, and the plan shall designate an identifier for the group of units for emissions

reporting purposes; and for purpose ofsubmitting emissions reports, no apportionment of emissions to the individual

units within the group is required;

(2) ifthe provisions ofParagraph (2) or Paragraph (3) of Subsection B of 20.11.46.21 NMAC are

used, provide documentation and an explanation to demonstrate that the S02 emission rate from the monitored unit

is representative ofthe rate from non-monitored writs.

[20.11.46.21 NMAC-N, 12/31/03]

20.11.46.22 PREDICTIVE FLOW MONITORING SYSTEMS FOR KILNS WITH POSITIVE

PRESSURE FABRIC FILTER:

A. Applicability. The provisions ofthis protocol are applicable to cement kilns or lime kilns that:

(1) are controlled by a positive pressure fabric filter;

(2) combust only a single fuel, no fuel blends; and

(3) have operating conditions upstream ofthe fabric filter that the WEB source documents would

reasonably prevent reliable flow monitor measurements; and this protocol does not modify the SO, monitoring

requirements in 20.11.46.16 NMAC.

B. Monitoring Requirements.

(1) A cement or lime kiln with a positive pressure fabric filter shall use a predictive flow monitoring

system (PFMS) to determine the hourly kiln exhaust gas flow.

(2) A PFMS is the total equipment necessary for the determination of exhaust gas flow using process

or control device operating parameter measurements and a conversion equation, a graph, or computer program to

produce results in cubic feet per hour.

(3) The PFMS shall meet the following performance specifications:

(a) sensor readings and conversion ofsensor data to flow in cubic feet per hour rimst be

automated;

(b) the PFMS must aHow for the automatic or manual determination offailed monitors; and at

a minimum a daily determination must be performed;

(c) the PFMS shall have provisions to check the calibration error of each parameter that is

individually measured; the owner or operator shall propose appropriate performance specifications in the initial

monitoring plan for all parameters used in the PFMS comparable to the degree of accuracy required for other

monitoring systems used to comply with 20.11.46 NMAC; the parameters shall be tested at two levels, low: 0 to 20

percent offull scale, and high: 50 to 100 percent offull scale; and the reference value need not be certified;

(d) the relative accuracy ofthe PFMS must be less than or equal to 10.0 percent ofthe

reference method average value, and include a bias test in accordance with Paragraph (3) of Subsection D of

20.11.46.22 NMAC.

C. Certification requirements. The PFMS is subject to initial certification testing. The source

owner or operator shall:

(1) demonstrate the ability ofthe PFMS to identify automatically or manually a failed monitor;

(2) provide evidence of calibration testing of all monitoring equipment; and any tests conducted

within the previous 12 months ofoperation that are consistent with the QA/QC plan for the PFMS are acceptable for

initial certification pwposes; and

(3) perform an relative accuracy test audit and accompanying bias test once every four operating

quarters; and calculate the relative accuracy (and bias adjustment factor) as described in appendix A to 40 CFR Part

75; an out of control period occurs whenever the flow relative accuracy is greater than 10.0 percent ofthe mean

value ofthe reference method.

D. Quality assurance and quality control requirements. A quality assurance and quality control

plan shall be developed and implemented for each PFMS in compliance with Sections I and 1.1 of appendix B of 40

CFR Part 75, and the following:

(1) perform a daily monitor failure check;

(2) perform calibration tests of all monitors for each parameter included in the PFMS. At a

minimum, calibrations shall be conducted prior to each relative accuracy test audit; and

20.11.46 NMAC 25
(3) perform a relative accuracy test audit and accompanying bias test once every four operating

quarters; and calculate the relative accuracy (and bias adjustment factor) as described in 20.11.46.21 NMAC and 40

CFR Part 75; an out of control period occurs whenever the flow relative accuracy is greater than 10.0 percent ofthe

mean value ofthe re ference method.

E. Missing data. For any period in which valid data are not being recorded by the PFMS specified

in 20.11.46.22 NMAC, hourly missing or invalid data shall be replaced with substitute data in accordance with the

flow monitor missing data requirements for non-load based units in Subpart D of 40 CFR Part 75.

F. Monitoring plan requirements. In addition to the general monitoring plan requirements of

20.11.46.16 NMAC, the owner or operator shall meet the following additional requirements:

(1) the monitoring plan shall docwnent the reasons why stack flow measuremeots upstream of the

fabric filter are unlikely to provide reliable flow measurements over time;

(2) the initial monitoring plan shall explain the relationship ofthe proposed parameters and stack

flow, and discuss other parameters considered and the reasons for not using those parameters in the PFMS; and the

department may require that the subsequent monitoring plan include additional explanation and documentation for

the reasonableness ofthe proposed PFMS.

[20.11.46.22 NMAC - N, 12/31/03]

20.11.46.23 SAVINGS CLAUSE: Aoy amendment to Sulfur Dioxide Emissions Inventory Requirements;

Western Backstop Sulfur Dioxide Trading Program, 20.11.46 NMAC, which is filed with the state records center

and archives shall not affect actions pending for violation of a statute, ordinance, part, or penni!. Prosecution for a

violation of a prior statute, ordinance, Part or permit shall be governed and prosecuted under the statute, ordinance,

part or permit wording in effect at the time the violation was committed.

[20.11.46.23 NMAC - N, 12/31/03]

20.11.20.24 SEVERABILITY: If any section, subsection, sentence, phrase, clause or wording ofthis part or

the federal standards incorporated herein is for any reason held to be unconstitutional or otherwise invalid by any

court or the EPA, the decision shall not affect the validity ofremaining portions ofthis part.

[20.11.46.24 NMAC - N, 12/31/03]

HISTORY OF 20.11.46 NMAC:

Pre-NMAC History: None.

History ofRepealed Material: [RESERVED]

j

20.11.46 NMAC 26
ATTACHMENTD
ALBUQUERQUE / BERNALILLO COUNTY

AIR QUALITY CONTROL BOARD

PUBLIC HEARING

Proposed New Regulation

SULFUR DIOXIDE EMISSIONS INVENTORY

REQUIREMENTS; WESTERN BACKSTOP SULFUR

DIOXIDE TRADING PROGRAM, 20.11.46 NMAC

NOVEMBER 12, 2003

'EXHIBITS'
c () , TEN T S

No.1

Ex. 1. "Public Review Draft - October 5,

2003"

No.2

Ex. 2. Federal Register Notice, V. 68, No.

1081 Thursday, June 5, 2003

No.3

Ex. 3. e-mail 'Notice of hearings &

meetings; Extension of comment period'

9/22/03

;r;;;:;=d!==-;-~-~--~-;-~---::..:....------------------

No.4

Ex. 4. Legal ad: November 12, 2003

Hearing, Abq. Journal 10/5/03

No.5

=

~--:;;-:-;;;-~-:;;-~--~-:;:;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;~~ -------

Ex. 5. Legal ad: Notice of Availability of

revised & new regional haze documents,

Abq. Journal 10/5/03

No.9 )

I

Ex. 8a. e-mail distribution for.

Agenda/announcements; 8b. Postal service

distribution for Agenda

Ex. 7. e-mail 'Notice of availability of

revised & new regional haze documents',

10/6103

Ex. 9 AQCB Agenda, November 12,2003

Ex. 6. Notice of Rulemaking published in

the New Mexico Register, 10/15/03

'--------I

No

.

6 I

'--------I

NO. 7 I

No.8 I

'--------I

I

No.10)

I

Ex. 10. 'HIli c I

FI 09'" ~'M."",, "'" '"-t.--

SAVERY'- EX E CUT lYE REA 0 YIN D E X 0 I Y IDE R S
EXHIBIT

1.1-

20.11.46.1 ISSUING AGENCY: AlbuquerquelBernalillo County Air Quality Control Board, P.O. Box

1293, Albuquerque, New Mexico 87103.

[12/31/03]

TITLE 20 ENVIRONMENTAL PROTECTION

CHAPTER II ALBUQUERQUEIBERNALILLO COUNTY AIR QUALITY CONTROL BOARD

PART 46 SULFUR DIOXIDE EMISSIONS INVENTORY REQUIREMENTS; WESTERN

BACKSTOP SULFUR DIOXIDE TRADING PROGRAM

20.11.46.3 STATUTORY AUTHORITY: This Part is adopted pursuant to the authority provided in the

New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4, 74-2-5; the Joint Air Quality Control Board

Ordinance; Bernalillo County Ordinance No. 94-5, Sections 4 and 5; and the Joint Air Quality Control Board

Ordinance, Revised Ordinances ofAlbuquerque 1994 Sections 9-5-1-3 and 9-5-1-4.

[12/31/03]

A. This Part is applicable to all geographic areas within Bernalillo County, New Mexico and within the

jurisdiction of the AlbuquerquelBernalillo County Air Quality Control Board.

B. Exempt: This Part does not apply to sources within Bernalillo County that are located on Indian lands over

which the AlbuquerquelBernalillo County Air Quality Control Board lacks jurisdiction.

[12/31/03]

SCOPE:

DURATION: Pennanent, except as provided in Section 20.11.46.5 NMAC.

20.11.46.2

20.11.46.4

[12/31103]

20.11.46.5 EFFECTIVE DATE: December 31,2003, except where a later date is cited at the end of a

section, or as provided in 20.11.46.10 NMAC. However, if the EPA disapproves the AlbuquerquelBemalillo

County Section 309 Regional Haze State Implementation Plan Element, this entire Part will no longer be effective

on the date of official notification by the EPA to the Governor of New Mexico that the AlbuquerquelBernalillo

County Section 309 Regional Haze State Implementation Plan Element has been disapproved.

[12/31103]

20.11.46.6 OBJECTIVE:

A. 20.11.46 NMAC implements the western backstop S02 trading program ("WEB trading

program") provisions required under the federal Regional Haze Regulation, 40 CFR 51.309, the

AlbuquerquelBernalillo county element ofthe state of New Mexico's Regional Haze Implementation Plan and

related requirements associated with the time period prior to the WEB trading program trigger date.

B. Nothing in 20.11.46 NMAC waives any requirement otherwise in effect or subsequently required

under another program, including regulations governing new sources.

[12/31/03]

20.11.46.7 DEFINITIONS: In addition to the defmitions in 20. I 1.46.7 NMAC, the defmitions in 20.11.0 I

NMAC apply unless there is a conflict between definitions, in which case the definition in this Part shall govern.:

A. "Account certificate of representation" means the completed and signed submission required to

designate an account representative for a WEB source or an account representative for a general account.

B. "Account representative" means the individual who is authorized through an account certificate

ofrepresentation to represent owners and operators ofthe WEB source with regard to matters under the WEB

trading program or, for a general account, who is authorized through an account certificate ofrepresentation to

represent the persons having an ownership interest in allowances in the general account with regard to matters

concerning the general account.

C. "Act" means the federal Clean Air Act, as amended, 42 U.S.C. 7401, et seq.

I

2

3

4

5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

20.11.46 NMAC Page I Public Review Draft - October 5, 2003
1 D. "Actual emissions" means the total annual sulfur dioxide emissions detennined in accordance

2 with and 20.11.46.16 NMAC, or detennined in accordance with 20.11.46.9 NMAC for sources that are not subject

3 to 20.11.46.16 NMAC.

4 E. ~Air Quality Control Board" or "AQCB" means the AlbuquerquelBemalillo County Air

5 Quality Control Board.

6 F. "Allocate" means to assign allowances to a WEB source through Section F(I) ofChapter VI of

7 the S02 milestones and backstop trading program implementation plan element.

8 G. "Allowance" means the limited authorization under the WEB trading program to emit one ton of

9 S02 during a specified control period or any control period thereafter subject to the tenns and conditions for use of

10 unused allowances as established by 20.11.46 NMAC.

II H. "Allowance limitation" means the tonnage ofS02 emissions authorized by the allowances

12 available for compliance deduction for a WEB source for a control period under 20.11.46.19 NMAC on the

13 allowance transfer deadline for that control period.

14 I."Allowance tracking system" means the system developed by the depamnent where allowances

15 under the WEB Trading Program are recorded, held, transferred and deducted.

16 J. "Allowance tracking system account" means an account in the allowance tracking system

17 established for purposes ofrecording, holding, transferring, and deducting allowances.

18 K. "Allowance transfer deadline" means the deadline established in Subsection B of20.11.46.17

19 NMAC when allowances must be submitted for recording in a WEB source's compliance account in order to

20 demonstrate compliance for that control period.

21 L. "Compliance account" means an account established in the allowance tracking system under

22 Subsection A of 20.11.46.15 NMAC for the purpose ofrecording allowances that a WEB source might hold to

23 demonstrate compliance with its allowance limitation.

24 M. "Compliance certification" means a submission to the Depamnent by the Account

25 Representative as required under Subsection B of20.11.46.19 NMAC to report a WEB source's compliance or

26 noncompliance with 20.11.46 NMAC.

27 N. ~Control period" means the period beginning January I of each year and ending on December 31

28 of the same year, inclusive.

29 O. "Emission report or inventory" means a listing, by source, ofthe amount of air pollutants

30 discharged into the attnosphere.

31 P. "Emissions tracking database" means the central database where S02 emissions for WEB

32 sources as recorded and reported in accordance with 20.11.46 NMAC are tracked to detennine compliance with

33 allowance limitations.

34 Q. "Emission unit" or "unit" means any part of a stationary source that emits or would have the

35 potential to emit any pollutant regulated pursuant to the Clean Air Act.

36 R. "Existing source" means, a stationary source that commenced operation before the program

37 trigger date.

38 S. "Fugitive emissions" are those emissions that could not reasonably pass through a stack,

39 chimney, vent, or other functionally equivalent opening.

40 T. "General account" means an account established in the Allowance Tracking System under

41 20.11.46.15 NMAC for the purpose ofrecording allowances held by a person that are not to be used to show

42 compliance with an allowance limitation.

43 U. "Milestone" means the maximum level ofstationary SOurce regional sulfur dioxide emissions for

44 each year from 2003 to 2018, established according to the procedures in Section A of the S02 milestones and

45 backstop trading program implementation plan.

46 V. ~New source set-aside" means a pool of allowances that are available for allocation to new

47 sources in accordance with the provisions of Section F(3) ofChapter VI of the SO,milestones and

48 backstop trading program implementation plan element.

49 W. ~'New WEB source" means a WEB source that commenced operation on or after the program

50 trigger date.

51 X. "Owner or operator" means any person who is an owner or who operates, controls or supervises

52 a WEB source, and includes but is not be limited to any holding company, utility system or plant manager.

53 Y. "Part" means an air quality control regulation under Title 20, Chapter I I ofthe New Mexico

54 Administrative Code, unless otherwise noted, as adopted or amended by the AQCB.

55 Z. "Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant

56 under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit

20.11.46 NMAC Page 2 Public Review Draft - October 5, 2003
an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or

amount of material combusted, stored or processed, shall be treated as part of its design if the limitation is

enforceable by the EPA Administrator.

AA. "Program trigger date" means the date that the department determines that the WEB trading

program has been triggered in accordance with the provisions of Section D ofChapter VI of the SO, milestones and

backstop trading program implementation plan element.

BB. "Program trigger years" means the years shown in Table 3, column 3, of the SO, milestones and

backstop trading program implementation plan element for the applicable milestone if the WEB trading program is

triggered as described in Chapter V(D) of the So, milestones and backstop trading program implementation plan

element.

ce. "Renewable energy resource" means a resource that generates electricity by non-nuclear and

non-fossil technologies that results in low or no air emissions. The term includes electricity generated by wind

energy technologies; solar photovoltaic and solar thermal technologies; geothermal technologies; technologies based

on landfill gas and biomass sources, and new low-impact hydropower that meets the Low-Impact Hydropower

Institute criteria. Biomass includes agricultural, food and wood wastes. The term does not include pumped storage

or biomass from municipal solid waste, black liquor, or treated wood.

DD. "Retired source" means a WEB source that has received a retired source exemption as provided

in Subsection E of 20.11.46.11 NMAC. Any retired source resuming operations under Subsection E of 20.11.46.11

NMAC, must submit its exemption as part ofits registration materials.

EE. "Serial number" means, when referring to allowances, the unique identification number assigned

to each allowance by the tracking systems administrator, in accordance with Subsection B of 20.11.46.14 NMAC.

FF. "SO, emitting unit" means any equipment that is located at a WEB source and that emits SO,.

GG. "SO, milestones and backstop trading program implementation plan element" means

Section F ofChapter VI of the AlbuquerquelBernalillo County Section 309 Regional Haze State Implementation

Plan Element adopted by the AQCB on 11/12/03.

HH. "Stationary source" means any building, structure, facility or installation that emits or may emit

any air pollutant subject to regulation under the Clean Air Act.

II. "Submit" means sent to the appropriate authority under the signature of the account

representative. For purposes of determining when something is submitted, an official U.S. Postal Service postmark,

or equivalent electronic time stamp, shall establish the date ofsubmittal.

JJ. "Ton" means 2000 pounds and, for any control period, any fraction of a ton equaling 1000

pounds or more shall be treated as one ton and any fraction of a ton equaling less than 1000 pounds shall be treated

as zero tons.

KK. "Tracking system administrator" means the person designated by the Department as the

administrator ofthe Allowance Tracking System and the emission tracking database.

LL. "WEB source" means a stationary source that meets the applicability requirements of

20.11.46.11 NMAC.

MM. "Western backstop sulfur dioxide (SO,) trading program" or "WEB trading program"

means Sections 20.11.46 NMAC, but not Section 20.1 I.46.9 NMAC, triggered as a backstop in accordance with the

provisions in the So, milestones and backstop trading program implementation plan element to ensure that regional

S02 emissions are reduced.

[12/31/03]

I

2

3

4

5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

20.11.46.8

[12/31/03]

VARIANCES: No variances will be granted from requirements of this Part.

47

48

49

50

51

52

53

54

20.11.46.9 EMISSION TRACKING REQUIREMENTS FOR SULFUR DIOXIDE EMISSION

INVENTORIES: Begirming with the 2003 emission inventory, all stationary sources with actual emissions of one

hundred (100) tons per year or more ofsulfur dioxide in the year 2000, or in any subsequent year, shall submit an

annual inventory ofsulfur dioxide emissions. A source that meets these criteria, and then emits less than 100 tons

per year in a later year shall submit a sulfur dioxide inventory for tracking compliance with the regional sulfur

dioxide milestones until the Western backstop sulfur dioxide trading program has been fully implemented and

emission tracking has occurred under 20.11.46.16 NMAC.

20.11.46 NMAC Page 3 Public Review Draft - October 5,2003
I A. AIl sources meeting the criteria immediately above in 20.11.46.9 NMAC will be subject to the

2 foIlowing federaIly enforceable provisions:

3 (1) submit an annual inventory ofsulfur dioxide emissions;

4 (2) document the emissions monitoring/estimation methodology used, and demonstrate that the

5 selected methodology is acceptable under the inventory program;

6 (3) include emissions from start up, shut down, and upset conditions in the annual total inventory;

7 (4) use 40 CFR Part 75 methodology for reporting emissions for all sources subject to the federal

8 acid rain program;

9 (5) maintain all records used in the calculation ofthe emissions, including but not limited to the

10 foIlowing:

II (a) amount offuel consumed;

12 (b) percent sulfur content offuel and how the content was determined;

13 (c) quantity of product produced;

14 (d) emissions monitoring data;

15 (e) operating data; and

16 (I) how the emissions are calculated.

17 (6) maintain records of any physical changes to facility operations or equipment, or any other

18 changes that may affect the emissions projections; and

19 retain records for a minimum often years from the date of establishment, or ifthe record was the basis for an

20 adjustment to the milestone, five years after the date of an implementation plan revision, whichever is longer.

21 B. Reporting Requirements.

22 (I) Except as provided in Paragraph (2) of Subsection B of 20.11.46.9 NMAC, the owner or

23 operator shaIl submit the emission report by April I each year immediately foIlowing the year for which the

24 source is required to report emissions data.

25 (2) Sources for which a date for submitting an annual emission report is specified in a current

26 Operating Permit issued under 20.11.42 NMAC, Operating Permits, shaIl submit such report on the date specified in

27 the permit. The Department shaIl provide a copy of the previous emissions report upon request by the owner or

28 operator ofsuch source.

29 C. Emissions report contents shaIl include:

30 (I) the name, address, and physical location ofthe stationary source;

31 (2) the name and telephone number ofthe person to contact regarding the emissions report;

32 (3) a certification signed by the owner, or operator, or a responsible official as defmed in

33 20.11.42 NMAC attesting that the statements and information contained in the emissions report are true and accurate

34 to the best knowledge and belief ofthe certifying official, and including the fuIl name, title, signature, date of

35 signature, and telephone number ofthe certifying official. For sources subject to 20.11.42 NMAC, the certification

36 shaIl be made as required under 20.11.42 NMAC;

37 (4) smelters shaIl submit an annual report ofsulfur input, in tons/year;

38 (5) for each emission point additional information may be required by the Department:

39 (a) stack and exhaust gas parameters;

40 (b) type of control equipment and estimated control efficiency;

41 (c) schedule ofoperation;

42 (d) estimated actual emissions, including fugitive emissions and emissions occurring

43 during maintenance, start-ups, shutdowns, upsets, and downtime of[Delete all but sulfur oxides??] total suspended

44 particulate, PMIO, sulfur oxides, nitrogen oxides, carbon monoxide, volatile organic compounds, and lead in tons per

45 year and a description ofthe methods utilized to make such estimates, including calculations;

46 (e) the annual process or fuel combustion rates; and

47 (I) the fuel heat, sulfur, and ash content.

48 D. The department shaIl retain emission inventory records for non-utilities for 1996 and 1998 until

49 the year 2018 to ensure that changes in emissions monitoring techniques can be tracked.

50 [12/31/03]

51

52

53 20.11.46.10 WEB TRADING PROGRAM TRIGGER:

54 A. Except as provided in Subsection B of 20.11.46.1 0, Sections 20.11.46.11 NMAC through

55 20.11.46.22 NMAC shaIl become effective on the program trigger date that is established in accordance with the

56 procedures outlined in the SO, milestones and backstop trading program implementation plan element.

20.11.46 NMAC Page 4 Public Review Draft - October 5, 2003
I B. 20.11.46.20 NMAC, Special Penalty Provisions for the Year 2018 milestone, shall become

2 effective on January 1,2018 and shall remain effective until the provisions of 20.11.46.20 NMAC have been fully

3 implemented.

4 [12/31/03]

5

6 20.11.46.11 WEB TRADING PROGRAM APPLICABILITY

7 A. General applicability: 20.11.46 NMAC applies to any stationary source or group ofstationary

8 sources that are located on one or more contiguous or adjacent properties and which are under the control ofthe

9 same person or persons under common control, belonging to the same industrial grouping, and that are described in

10 Paragraphs (I) through (4) of Subsection B of20.11.46.10 NMAC. A stationary source or group ofstationary

II sources shall be considered part of a single industrial grouping if all ofthe pollutant emitting activities at such

12 source or group ofsources on contiguous or adjacent properties belong to the same Major Group (i.e., all have the

13 same two-digit code) as described in the Standard Industrial Classification Manual, 1987.

14 B. The following are WEB sources:

15 (1) all BART-eligible sources as defined in 40 CFR 51.301 that are BART-eligible due to SO,

16 emissions.

17 (2) all stationary sources not meeting the criteria of Paragraph (I) of Subsection B of20.11.46.11

18 NMAC, that have actual SO, emissions of 100 tons or more per year in the program trigger years or any subsequent

19 year. The fugitive emissions of a stationary source shall not be considered in determining whether it is a WEB

20 source unless the source belongs to one ofthe following categories ofstationary source:

21 (a) coal cleaning plants (with thermal dryers);

22 (b) kraft pulp mills;

23 (c) portland cement plants;

24 (d) primary zinc smelters;

25 (e) iron and steel mills;

26 (I) primary aluminum ore reduction plants;

27 (g) primary copper smelters;

28 (h) municipal incinerators capable of charging more than 250 tons ofrefuse per day;

29 (1) hydrofluoric, sulfuric, or nitric acid plants;

30 (j) petroleum refmeries;

31 (k) lime plants;

32 (I) phosphate rock processing plants;

33 (m) coke oven batteries;

34 (n) sulfur recovery plants;

35 (0) carbon black plants (furnace process);

36 (p) primary lead smelters;

37 (q) fuel conversion plants;

38 (r) sintering plants;

39 (s) secondary metal production plants;

40 (t) chemical process plants;

41 (u) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal

42 units per hour heat input;

43 (v) petroleum storage and transfer units with a total storage capacity exceeding 300,000

44 barrels;

45 (w) taconite ore processing plants;

46 (x) glass fiber processing plants;

47 (y) charcoal production plants;

48 (z) fossil-fuel-frred steam electric plants of more than 250 million British thermal units per

49 hour heat input; or

50 (aa) any other stationary source category, which as of August 7, 1980 is being regulated under

51 Section III or 112 ofthe Clean Air Act.

52 (3) a new source that begins operation after the program trigger date and has the potential to eroit

53 100 tons or more of SO, per year.

54 (4) the department may determine on a case-by-case basis, with concurrence from the EPA

55 Administrator, that a source defined in Paragraph (2) of Subsection B of20.11.46.11NMAC is not a WEB

56 source if the source:

20.11.46 NMAC Page 5 Public Review Draft - October 5, 2003
•

I

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

(a) in each ofthe previous five years had actual SO, emissions of less than 100 tons per year,

and

(b) had actual S02 emissions of 100 tons or more in a single year due to a temporary emission

increase that was caused by a sudden, infrequent, and not reasonably preventable failure of air pollution control

equipment, failure ofprocess equipment, or a failure to opemte in a nonnal or usual manner.

(c) took timely and reasonable action to minimize the temporary emission increase; and

(d) has corrected the failure of air pollution control equipment, process equipment, or process

by the time of the Department's determination under 20.1 1.46.1 INMAC; or

(e) had 10 switch fuels or feedstocks on a temporary basis and as a result of an emergency

situation or unique and unusual circumstances besides cost ofsuch fuels or feedstocks.

(5) a temporary emission increase due to poor maintenance or careless operation does not meet the

criteria of this section.

C. Duration of program participation:

Except as provided for in Subsection D of 20.11.46.11 NMAC, once a source is subject to the WEB

trading program, it will remain in the program every year thereafter.

D. Application for retired source exemption:

(I) Any WEB source that is retired shall apply for a retired source exemption. The WEB source may

only be considered retired if all SO, emitting units at the source are retired. The application shall contain the

following information:

(a) identification ofthe WEB source, including plant name and an appropriate identification

code in a format specified by the department.

(b) name of account representative.

(c) description ofthe status ofthe WEB source, including the date that the WEB source was

retired.

(d) signed certification that the WEB source is retired and will comply with the requirements of

Subsection D of 20.11.46.11 NMAC; and

(e) verification that the WEB source has a general account where any unused allowances or

future allocations will be recorded.

(2) Responsibilities ofretired sources: The retired source exemption becomes effective when the

departroent notifies the source that the retired source exemption has been granted.

(3) A retired source shall be exempt from 20.11.46.16 NMAC and 20.11.46.19 NMAC, except as

provided below.

(a) A retired source shall not emit any SO, after the date the retired source exemption is

effective.

(b) A WEB source shall submit SO, emissions reports, as required by Subsection a of

20.11.46.16 NMAC for any time period the source was operating prior to the effective date of the retired source

exemption. The retired source shall be subject to the compliance provisions of 20.11.46.19 NMAC, including the

requirement to hold allowances in the source's compliance account to cover all S02 emissions prior to the date the

source was permanently retired.

(c) A retired source that is still in existence but no longer emitting SO, shall, for a period of

five years from the date the records are created, retain records demonstrating the effective date ofthe retired source

exemption for purposes ofthis part.

(4) Resumption ofoperations.

(a) Should a retired source desire to resume operation, the retired source shall submit

registration materials as follows:

(i) if the source is required to obtain a new source review permit or operating permit

under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC prior to resuming operation, then the

source shall submit registration information as described in 20.11.46.13 NMAC and a copy of the retired source

exemption with the application required under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61

NMAC;

(ii) ifthe source is not required to obtain a new source review permit or operating permit

under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC prior to resuming operation, then the

source shall submit registration information as described in Subsection A of 20.11.46.13 NMAC and a copy ofthe

retired source exemption to the department at least ninety days prior to resumption ofoperation.

(b) The retired source exemption shall automatically expire on the day the source resumes

operation.

20.11.46 NMAC Page 6 Public Review Draft - October 5, 2003
] (5) Loss of Future Allowances: a WEB source that is retired and that does not apply to the

2 Department for a retired source exemption within ninety days ofthe date that the source is retired shall forfeit any

3 unused and future allowances. The abandoned allowances shall be retired by the Tracking System Administrator.

4 [12/31/03]

5

6 20.11.46.12 ACCOUNT REPRESENTATIVE FOR WEB SOURCES: Each WEB source must identify

7 one account representative and may also identify an alternate account representative who may act on behalf ofthe

8 account representative. Any representation, action, inaction or submission by the alternate account representative

9 will be deemed to be a representation, action, inaction or submission by the account representative.

10 A. Identification and certification of an account representative:

II (1) The account representative and any alternate account representative shall be appointed by an

12 written agreement that makes the representations, actions, inactions or submissions ofthe account representative and

13 any alternate account representative binding on the owners and operators of the WEB source. A copy of the

14 agreement shall be provided to the department.

15 (2) The account representative shall submit to the department and the tracking system administrator a

16 signed and dated account certificate ofrepresentation (certificate) that contains the following elements:

17 (a) identification ofthe WEB source by plant name, state, and an appropriate identification

18 code in a fonnat specified by the department;

19 (b) the name, address, e-mail (if available), telepbone and facsimile number ofthe account

20 representative and any alternate;

21 (c) a list of owners and operators ofthe WEB source;

22 (d) infonnation to be part of the emission tracking system database in accordance with the SO,

23 milestones and backstop trading program implementation plan element. The specific data elements shall be as

24 specified by the department to be consistent with the data system structure, and may include basic facility

25 infonnation that may appear in other reports and notices submitted by the WEB source, such as county location,

26 industrial classification codes, and similar general facility infonnation; and

27 (e) the following certification statement: "] certify that I was selected as the account

28 representative or alternate account representative, as applicable, by an agreement binding on the owners and

29 operators of the WEB source. I certify that I have all the necessary authority to carry out my duties and

30 responsibilities under the WEB trading program on behalfofthe owners and operators ofthe WEB source and that

31 each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by

32 any decision or order issued to me by the department regarding the WEB trading program."

33 (3) Upon receipt by the department ofthe complete certificate, the account representative and any

34 alternate account representative represents and, by his or her representations, actions, inactions, or submissions,

35 legally binds each owner and operator ofthe WEB source in all matters pertaining to the WEB trading program. The

36 owners and operators shall be bound by any decision or order issued by the department regarding the WEB trading

37 program.

38 (4) No WEB allowance tracking system account shall be established for the WEB source until the

39 tracking system administrator has received a complete certificate. Once the account is established, the account

40 representative shall make all submissions concerning the account, including the deduction or transfer of allowances.

41 B. Requirements and responsibilities:

42 (1) The responsibilities ofthe account representative include, but are not limited to, the transferring

43 of allowances, and the submission of monitoring plans, registrations, certification applications, SO, emissions data

44 and compliance reports as required by 20.11.46 NMAC, and representing the source in all matters pertaining to the

45 WEB trading program.

46 (2) Each submission under this program shall be signed and certified by the account representative

47 for the WEB source. Each submission shall include the following truth and accuracy certification statement by the

48 account representative: "] am authorized to make this submission on behalfof the owners and operators ofthe WEB

49 source for which the submission is made. I certify under penalty oflaw that] have personally examined, and am

50 familiar with, the statements and infonnation submitted in this document and all its attacbments. Based on my

51 inquiry ofthose individuals with primary responsibility for obtaining the infonnation, ] certify that the statements

52 and infonnation are to the best ofmy knowledge and belief true, accurate, and complete. ] am aware that there are

53 significant penalties for submitting false statements and infonnation or omitting required statements and

54 infonnation, including the possibility offme or imprisonment."

55 C. Changing the account representative or owners and operators:

20.11.46 NMAC Page 7 Public Review Draft - October 5, 2003
I (1) Changes to the account representative or the alternate account representative. The Account

2 Representative or alternate Account Representative may be changed at any time by sending a complete superseding

3 certificate to the department and the tracking system administrator under Paragraph (3) of Subsection A of

4 20.11.46.12 NMAC, with the change taking effect upon receipt ofsuch certificate by the department.

5 Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous account

6 representative or alternate prior to the time and date when the tracking system administrator receives the superseding

7 certificate shall be binding on the new account representative and the owners and operators of the WEB source.

8 (2) Changes in owners and operators.

9 (a) Within 30 days of any change in the owners and operators of the WEB source, including

10 the addition of a new owner or operator, the account representative shall submit a revised certificate amending the

II list ofowners and operators to include such change.

12 (b) In the event a new owner or operator of a WEB source is not included in the list ofowners

13 and operators submitted in the certificate, such new owner or operator shall be deemed to be subject to and bound by

14 the certificate, the representations, actions, inactions, and submissions ofthe account representative ofthe WEB

15 source, and the decisions, orders, actions, and inactions of the department as ifthe new owner or operator were

16 included in such list.

17 [12/31/03]

18

19 20.11.46.13 REGISTRATION:

20 A. Deadlines.

21 (1) Each source that is a WEB source on or before the program trigger date shall register by

22 submitting the initial certificate required in Subsection A of 20.11.46.12 NMAC to the department no later than 180

23 days after the program trigger date.

24 (2) Any existing source that becomes a WEB source after the program trigger date shall register by

25 submitting the initial certificate required in Subsection A of 20.11.46.12 NMAC to the department no later than

26 September 30 ofthe year following the inventory year in which the source exceeded the emission threshold.

27 (3) Any new WEB source shall register by submitting the initial certificate required in Subsection A'

28 of20.11.46.12 NMAC to the department prior to the commencement ofoperation.

29 B. Integration into Permits.

30 (1) Any allocation, transfer or deduction of allowance to or from the compliance account of a WEB

31 source shall not require revision ofthe WEB source's operating permit under 20.11.42 NMAC.

32 (2) After 20.11.46 NMSA is effective, a WEB source that is not required to have a permit under

33 20.11.41 NMAC, 20.11.60 NMAC or 20.11.61 NMAC, must at all times possess a valid 20.11.42 NMAC permit

34 that includes the requirements of 20.11.46 NMAC. Ifthe WEB source does not possess a Title V permit under

35 20.11.42 NMAC, it may satisfy the requirements paragraph (2) of Subsection B of 20.11.46.13 NMAC by obtaining

36 or modifying a permit under 20.11.41, NMAC, 20.11.60 NMAC or 20.11.61 NMAC that incorporates the

37 requirements of 20.11.46 NMAC. The source must at all times possess a valid permit that includes these

38 requirements.

39 [12/31/03]

40

41 20.11.46.14 ALLOWANCE ALLOCATIONS:

42 A. The Tracking System Administrator shall record the allowances for each WEB source in the

43 compliance account for a WEB source once the allowances are allocated by the Department under Section FI of

44 Chapter VI of the SO, milestones and backstop trading program implementation plan element. If applicable, the

45 tracking system administrator shall also record a portion ofthe SO, allowances in a WEB source's special reserve

46 compliance account for any allowances held in accordance with Subsection B of 20.11.46.16 NMAC.

47 B. The tracking system administrator shall assign a serial number to each allowance in accordance

48 with Section F2 of the SO, milestones and backstop trading program implementation plan element.

49 C. All allowances shall be allocated, recorded, transferred, or used as whole allowances. To

50 determine the number of whole allowances, the number of allowances shall be rounded down for decimals less than

51 0.50 and rounded up for decimals of 0.50 or greater.

52 D. An allowance is not a property right, and is a limited authorization to emit one ton of SO, valid

53 only for the purpose ofmeeting the requirements of 20.11.46 NMAC. No provision ofthis WEB trading program or

54 other law should be construed to limit the authority of the United States or the department to terminate or limit such

55 authorization.

20.11.46 NMAC Page 8 Public Review Draft - October 5, 2003
I E. Early reduction bonus allocation: Any WEB source that, between 2003 and the program trigger

2 year, reduces permitted annual SO, emissions to a level that is below the floor level allocation established for that

3 source in Section FI ofChapter VI ofthe SO, milestones and backstop trading program implementation plan

4 element may apply to the departinent for an early reduction bonus allocation. The application shall be submitted no

5 later than ninety days after the program trigger date. Any WEB source that applies and receives early reduction

6 bonus allocations shall retain the records referenced below for a minimum offive years after the early reduction

7 bonus allowance is certified in accordance with Section FI(d) ofChapter VI ofthe SO, milestones and backstop

8 trading program implementation plan element. The application for an early reduction bonus allocation shall contain

9 the following information:

10 (1) copies of all permits or other enforceable documents that include annual SO, emissions limits for

II the WEB source during the period the WEB source was generating the early reductions. Such permits or

12 enforceable documents shall require monitoring for SO, emissions that meets the requirements in Subsection A and

13 Subsection C of 20.11.46.16 NMAC and monitoring provisions that were in effect one year prior to the beginning of

14 the credit generating period.

IS (2) copies of emissions monitoring reports, for one year prior to the beginning ofthe credit generating

16 period and for the period the WEB source was generating the early reductions, that document the actual annual SO,

17 emissions. The emissions monitoring reports during the credit generating period must demonstrate that the actual

18 annual SO, emissions were below the floor level allocation established for that source in Section FI ofChapter VI

19 ofthe SO, milestones and backstop trading program implementation plan element.

20 (3) demonstration that the floor level established for the source in accordance with Section FI of

21 Chapter VI ofthe SO, milestones and backstop trading program implementation plan element was calculated using

22 data that are consistent with the new monitoring methodology under Subsection A of 20.11.46.16 NMAC. If new

23 monitoring techniques change the floor level for the source, then a demonstration of the new floor level based on

24 new monitoring techniques shall be included in the application.

25 F. Request for allowances for new WEB sources or modified WEB Sources.

26 (1) A new WEB source or an existing WEB source that has increased production capacity through a

27 permitted change in operations under 20.11.41 NMAC, 20.11.60 NMAC or 20.11.61 NMAC may apply to the

28 department for an allocation from the new source set-aside, as outlined in Section F3 ofChapter VI ofthe SO,

29 milestones and backstop trading program implementation plan element.

30 (a) A new WEB source is eligible to apply for an annual allocation equal to the permitted

31 annual S02 emission limit for that source after the source has commenced operation.

32 (b) An existing WEB source is eligible to apply for an annual allocation equal to the permitted

33 annual SO, emission limit for that source that is attributable to any amount of production capacity that is greater

34 than the permitted production capacity for that source as ofJanuary 1,2003.

35 (c) A source that has received a retired source exemption under Subsection D of20.1 1.46.1 I

36 NMAC is not eligible to apply for an allocation from the new source set-aside.

37 (2) The application for an allocation from the new source set-aside shall contain the following

38 information:

39 (a) for existing WEB sources, documentation that shows the permitted production capacity of

40 the source before and after the new permit;

41 (b) for new WEB sources, documentation of the actual date ofthe commencement of operation

42 and a copy ofthe permit.

43 [12/31/03]

44

45 20.11.46.15 ESTABLISHMENT OF ACCOUNTS:

46 A. Allowance tracking system accounts: All WEB sources shall open a compliance account. Any

47 person may open a general account for holding and transferring allowances. In addition, if a WEB source conducts

48 monitoring under Subsection B of20.11.46.16 NMAC, the WEB source shall open a special reserve compliance

49 account for allowances associated with units monitored under those provisions. The WEB source and account

50 representative shall have no rights to transfer allowances in or out ofsuch special reserve compliance account. The

51 department shall allocate allowances to the account in accordance with Paragraph (5) of Subsection B of 20.11.46.16

52 NMAC and all such allowances for each control period shall be retired each year to comply with 20.11.46.19

53 NMAC. To open either type of account, an application that contains the following information shall be submitted:

54 (1) the name, mailing address, e-mail address, telephone number, and facsimile number of the

55 account representative. For a compliance account, include a copy ofthe account certificate ofrepresentation of the

56 account representative and any alternate as required in Paragraph (2) of Subsection A of20.11.46.12 NMAC. For a

20.11.46 NMAC Page 9 Public Review Draft - October 5,2003
I general account, include the account certificate ofrepresentation ofthe account representative and any alternate as

2 required in Paragraph (2) of Subsection C or 20.11.46.15 NMAC.

3 (2) the WEB source or organization name;

4 (3) the type of account to be opened; and

5 (4) a signed certification oftruth and accuracy by the account representative according to Paragraph

6 (2) of Subsection A of 20.11.46.12 and for compliance accounts and for general accounts, a certification oftruth and

7 accuracy by the account representative according to Subsection D of20.11.46.15 NMAC.

8 B. Account representative for general accounts: For a general account, one account representative

9 shall be identified and an alternate account representative may be identified and may act on behalf ofthe account

10 representative. Any representation, action, inaction or submission by the alternate account representative shall be

11 deemed to be a representation, action, inaction or submission by the account representative.

12 C. Identification and certification of an account representative for general accounts:

13 (I) The account representative and any alternate account representative shall be appointed by a

14 written agreement that makes the representations, actions, inactions or submissions ofthe account representative and

15 any alternate account representative binding on all persons who have an ownership interest with respect to

16 allowances held in the general account. A copy ofthe signed agreement shall be provided to the department.

17 (2) The account representative shall submit to the department and the tracking system administrator a

18 signed and dated account certificate ofrepresentation (certificate) that contains the following elements:

19 (a) the name, address, e-mail (if available), telephone and facsimile number ofthe Account

20 Representative and any alternate;

21 (b) the organization name;

22 (c) the following certification statement: "I certify that I was selected as the account

23 representative or alternate account representative, as applicable, by an agreement binding on all persons who have

24 an ownership interest in allowances in the general account with regard to matters concerning the general account. I

25 certify that I have all the necessary authority to carry out my duties and responsibilities under the WEB trading

26 program on behalfofsaid persons and that each such person shall be fully bound by my representations, actions,

27 inactions, or submissions and by any decision or order issued to me by the department regarding the general

28 account."

29 (3) Upon receipt by the department ofthe complete certificate, the account representative represents

30 and, by his or her representations, actions, inactions, or submissions, legally binds each person who has an

31 ownership interest in allowances held in the general account with regard to all matters concerning the general

32 account. Such persons shall be bound by any decision or order issued by the department.

33 (4) No WEB allowance tracking system general account shall be established until the tracking system

34 administrator has received a complete certificate. Once the account is established, the account representative shall

35 make all submissions concerning the account, including the deduction or transfer of allowances.

36 D. Requirements and responsibilities: Each submission for the general account shall be signed and

37 certified by the account representative for the general account. Each submission shall include the following truth and

38 accuracy certification statement by the account representative: "I am authorized to make this submission on behalf

39 of all person who have an ownership interest in allowances held in the general account. I certify under penalty of

40 law that I have personally examined, and am familiar with, the statements and information submitted in this

41 document and all its attachments. Based on my inquiry ofthose individuals with primary responsibility for

42 obtaining the information, I certify that the statements and information are to the best ofmy knowledge and belief

43 true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and

44 information or omitting required statements and information, including the possibility of fme or imprisonment."

45 E. Cbanging tbe account representative: The account representative or alternate account

46 representative may be changed at any time by sending a complete superseding certificate to the department and the

47 tracking system administrator under Paragraph (2) of Subsection C of 20.11.46.15 NMAC, with the change taking

48 effect upon receipt ofsuch certificate by the department. Notwithstanding any such change, all representations,

49 actions, inactions, and submissions by the previous account representative or alternate prior to the time and date

50 when the department receives the superseding certificate shall be binding on the new account representative and all

51 persons having ownership interest with respect to allowances held in the general account.

52 F Cbanges to the account: Any change to the information required in the application for an

53 existing account under Subsection A of20.11.46.15 NMAC shall require a revision of the application.

54 [12/31/03]

55

20.11.46 NMAC Page 10 Public Review Draft - October 5,2003
I 20.11.46.16 MONITORING, RECORDKEEPING AND REPORTING - GENERAL REQUIREMENTS

2 FOR MONITORING METHODS:

3 A. Each SO, emitting unit at a WEB source shall comply with the following, as applicable, to

4 monitor and record S02 mass emissions:

5 (1) if a unit is subject to 40 CFR Part 75 under a requirement separate from the WEB Trading

6 Program, the unit shall meet the requirements contained in 40 CFR Part 75 with respect to monitoring, recording and

7 reporting SO, mass emissions.

8 (2) if a unit is not subject to 40 CFR Part 75 under a requirement separate from the WEB trading

9 program, a unit shall use one of the following monitoring methods, as applicable:

10 (a) a continuous emission monitoring system (CEMS) for SO, and flow that complies with all

II applicable monitoring provisions in 40 CFR Part 75;

12 (b) if the unit is a gas- or oil-frred combustion device, the excepted monitoring methodology in

13 appendix D to 40 CFR Part 75, or, if applicable, the low mass emissions (LME) provisions (with respect to SO,

14 mass emissions only) of Section 75.19 of 40 CFR Part 75;

15 (c) one ofthe optional WEB protocols, if applicable, in 20.11.46.21 NMAC or 20.11.46.22

16 NMAC ;or

17 (d) a petition for site-specific monitoring that the source submits for approval by the

18 department and approval by the EPA in accordance with Paragraph (5) of Subsection a of 20.11.46.16 NMAC.

19 (3) A permanently retired unit shall not be required to monitor under Section 15 of 20.11.46 NMAC

20 ifsuch unit was permanently retired and had no emissions for the entire period for which the WEB source

21 implements Paragraph (3) of Subsection A of 20.11.46.16, and the account representative certifies in accordance

22 with Subsection B of 20.11.46.19 NMAC that these conditions were met. In the event that a permanently retired

23 unit recommences operation, the WEB source shall meet the requirements of 20.11.46.16 NMAC in the same

24 manner as if the unit was a new unit.

25 B. Notwithstanding Subsection A of 20.11.46.16 NMAC , the WEB source with a unit that meets one

26 of the conditions of Paragraph (I) of Subsection B of20.11.46.16 NMAC may elect to have the provisions of

27 Paragraph (I) of Subsection B of 20.11.46.16 NMAC apply to that unit.

28 (1) Any ofthe following units may implement Subsection B of 20.11.46.16 NMAC:

29 (a) any smelting operation where all of the emissions from the operation are not ducted to a

30 stack; or

31 (b) any flare, except to the extent such flares are used as a fuel gas combustion device at a

32 petroleum refmery.

33 (c) any other type of unit without add-on SO, control equipment. if no control level was

34 assumed for the WEB source in establishing the floor level (and reducible allocation) provided in Section Fl of

35 Chapter VI of the SO, milestones and backstop trading program implementation plan element.

36 (2) For each unit covered by Subsection B of 20.11.46.16 NMAC , the account representative shall

37 submit a notice to request that Subsection B of 20.11.46.16 NMAC applies to one or more SO, emitting units at a

38 WEB source. The notice shall be submitted in accordance with the compliance dates specified in Paragraph (I) of

39 Subsection M of 20.11.46.16 NMAC, and shall include the following information (in a format specified by the

40 department with such additiortal, related information as may be requested):

41 (a) a notice of all units at the applicable source, specifying which of the units are to be covered

42 by Subsection B of20.11.46.16 NMAC; and

43 (b) consistent with the emission estimation methodology used to determine the floor level (and

44 reducible allocation) for the souree in accordance with Section FI ofChapter VI ofthe S02 milestones and backstop

45 trading program implementation plan element, the portion of the WEB source's overall allowance allocation that is

46 attributable to any unites) covered by Paragraph 2 of Subsection B of20.11.46.16; and

47 (c) an identification of any such units that are permanently retired.

48 (3) For each new unit at an existing WEB source for which the WEB source seeks to comply with

49 this Subsection B of20.11.46.16 NMAC, and for which the account representative applies for an allocation under

50 the new source set-aside provisions of Subsection F of 20.11.46.14 NMAC, the account representative shall submit a

51 modified notice under Paragraph (2) of Subsection B of20.11.46.16 NMAC, that includes such new SO, emitting

52 unites). The modified notice shall be submitted in accordance with the compliance dates in Paragraph (I) of

53 Subsection M of 20.1 1.46.16 NMAC, but no later than the date on which a request must be submitted under

54 Paragraph (I) of Subsection F of20.11.46.14 NMAC for allocations from the set-aside.

55 (4) The department shall evaluate the information submitted by the WEB source in Paragraphs (2)

56 and (3) of Subsection B of20.11.46.16 NMAC, and may issue a notice to the source to exclude any units that do not

20.11.46 NMAC Page II Public Review Draft - October 5, 2003
I qualify under this Subsection B of20.11.46.16 NMAC or to adjust the portion of allowances attributable to units

2 that do qualify to be consistent with the emission estimation methodology used to establish the floor level (and

3 reducible allocation) for the source.

4 (5) The department shall allocate allowances equal to the adjusted portion ofthe WEB source's

5 allowances under Paragraphs (2), (3), and (4) of Subsection B of 20.11.46.16 NMAC in a special reserve

6 compliance account provided that no such treatment ofthe WEB source's allocation will be required for any unit

7 that is permanently retired and had no emissions for the entire period for which the WEB source implements this

8 Subsection B and the account representative certifies in accordance with 20.11.46.19 NMAC that these conditions

9 are met. In the event that a permanently retired unit recommences operation, the WEB source shall meet the

10 requirements ofthis Section 20.11.46.16 NMAC in the same manner as ifthe unit was a new unit.

II (6) For each urtit under this Subsection B of 20.11.46.16 NMAC, the account representative for a

12 WEB source shall submit an annual emissions statement in accordance with Subsection 0 of20.11.46.16 NMAC.

13 The WEB source shall maintain operating records sufficient to estimate annual emissions in a maIUler consistent

14 with the emission estimation methodology used to establish the floor level (and reducible allocation) for the source.

15 In addition, if the estimated emissions from all such units at the WEB source are greater than the allowances for the

16 current control year held in the special reserve compliance account under Paragraph (5) of Subsection B of

17 20.11.46.16 NMAC for the WEB source, the account representative shall report the excess amount as part ofthe

18 annual report for the WEB source under 20.11.46.19 NMAC and the WEB source shall use other allowances in the

19 standard compliance account for the WEB source to account for such emissions, in accordance with

20 20.11.46.19NMAC.

21 (7) The remaining provisions of 20.11.46.16 NMAC shall not apply to units covered by Subsection B

22 of20.11.46.16 NMAC except where otherwise noted.

23 (8) A WEB source may opt to modify the monitoring for an SO, emitting unit to use monitoring

24 under Subsection A of 20.11.46.16 NMAC, but any such monitoring change shall take effect on January I ofthe

25 next compliance year. In addition, the account representative shall submit an initial monitoring plan at least 180

26 days prior to the date on which the new monitoring will take effect and a detailed monitoring plan in accordance

27 with Subsection D of 20.11.46.16 NMAC. The account representative shall also submit a revised notice under

28 Subsection B of20.11.46.16 NMAC at the same time that the initial monitoring plan is submitted.

29 C. For any monitoring that the WEB source uses under 20.11.46.16 NMAC (including Paragraph

30 (I)), the WEB source (and, as applicable, the account representative) shall implement, certify, and use such

31 monitoring in accordance with 20.11.46.16 NMAC, and shall record and report the data from such monitoring as

32 required in 20.11.46.16 NMAC . In addition, the WEB source (and, as applicable, the account representative) shall

33 not:

34 (1) except for an alternative approved by the EPA Administrator for a WEB source that implements

35 monitoring under Paragraph (I) of Subsection A of 20.11.46.16 NMAC, use an alternative monitoring system,

36 alternative reference method or another alternative for the required monitoring method without having obtained

37 prior written approval in accordance with Paragraph (5) of Subsection 0 of 20.11.46.16 NMAC;

38 (2) operate an SO, emitting unit so as to discharge, or allow to be discharged, SO, emissions to the

39 atmosphere without accounting for these emissions in accordance with the applicable provisions of 20.11.46.16

40 NMAC;

41 (3) disrnpt the approved monitoring method or any portion thereof, and thereby avoid monitoring and

42 recording So, mass emissions discharged into the atmosphere, except for periods ofrecertification or periods when

43 calibration, quality assurance testing or maintenance is performed in accordance with the applicable provisions of

44 20.11.46.16 NMAC; or

45 (4) retire or permanently discontinue use of an approved monitoring method, except under one ofthe

46 following circumstances:

47 (a) During a period when the unit is exempt from the requirements of20.11.46.16 NMAC ,

48 including retirement of a unit as addressed in Paragraph (3) of Subsection A of 20.11.46.16 NMAC;

49 (b) The WEB source is monitoring emissions from the unit with another certified monitoring

50 method approved under 20.11.46.16 NMAC for use at the unit that provides data for the sarne parameter as the

51 retired or discontinued monitoring method; or

52 (c) The account representative submits notification ofthe date of certification testing of a

53 replacement monitoring system in accordance with 20.11.46.16 NMAC , and the WEB source recertifies thereafter a

54 replacement monitoring system in accordance with the applicable provisions of 20.11.46.16 NMAC .

20.11.46 NMAC Page 12 Public Review Draft - October 5,2003
I D. Monitoring plan general provisions:. The WEB source of an SO, emitting unit that uses a

2 monitoring method under Paragraph (2) of Subsection A of20.11.46.16 NMAC shall meet the following

3 requirements:

4 (I) prepare and submit to the Department an initial monitoring plan for each monitoring method that

5 the WEB source uses to comply with 20.11.46.16 NMAC. In accordance with Subsection F of20.11.46.16 NMAC,

6 the plan shall contain sufficient information on the units involved, the applicable method, and the use of data derived

7 from that method to demonstrate that all unit SO, emissions are monitored and reported. The plan shall be submitted

8 in accordance with the compliance deadlines specified in Subsection M of 20.11.46.16 NMAC.

9 (2) prepare, maintain and submit to the department a detailed monitoring plan prior to the first day of

10 certification testing in accordance with the compliance deadline specified in Subsection M of 20.11.46.16 NMAC

II The plan shall contain the applicable information required by Subsection D of 20.11.46.16 NMAC. The department

12 may require that the monitoring plan (or portions thereot) be submitted electronically. The department also may

13 require that the plan be submitted on an ongoing basis in electronic format as part of the quarterly report submitted

14 under Paragraph (I) of Subsection 0 of20.11.46.16 NMAC or resubmitted separately after any change is made to

15 the plan in accordance with the following Paragraph (3) of Subsection D of 20.11.46.16 NMAC.

16 (3) whenever the WEB source makes a replacement, modification, or change in one of the systems or

17 methodologies provided for in Paragraph (2) of Subsection A of 20.11.46.16 NMAC, including a change in the

18 automated data acquisition and handling system or in the flue gas handling system, that affects information reported

19 in the monitoring plan (e.g., a change to serial number for a component of a monitoring system), then the WEB

20 source shall update the monitoring plan in accordance with the compliance deadline specified in Subsection M of

21 20.11.46.16 NMAC.

22 E. A WEB source with an SO, emitting unit that uses a method under Paragraph (I) of Subsection A

23 of 20.11.46.16 NMAC (a unit subject to 40 CFR Part 75 under a program other than this WEB Trading Program)

24 shall meet the requirements of Subsection D through Subsection I of 20.11.46.16 NMAC by preparing, maintaining

25 and submitting a monitoring plan in accordance with the requirements of40 CFR Part 75, provided that the WEB

26 source also shall submit the entire monitoring plan to the department upon request.

27 F. Initial monitoring plan: The account representative shall submit an initial monitoring plan for

28 each SO, emitting unit (or group of units sharing a common methodology) that, except as otherwise specified in an

29 applicable provision in 20.11.46.21 NMAC, contains the following information:

30 (I) for all SO, emitting units involved in the monitoring plan:

31 (a) plant name and location;

32 (b) plant and unit identification numbers assigned by the department;

33 (c) type of unit (or units for a group of units using a common monitoring methodology);

34 (d) identification of all stacks or pipes associated with the monitoring plan;

35 (e) types offuel(s) fired (or sulfur containing process materials used in the SO, emitting unit),

36 and the fuel classification ofthe unit if combusting more than one type offuel and using a 40 CFR Part 75

37 methodology;

38 (I) type(s) of emissions controls for SO, installed or to be installed, including specifications of

39 whether such controls are pre-combustion, post-combustion, or integral to the combustion process;

40 (g) maximum hourly heat input capacity, or process throughput capacity, if applicable;

41 (h) identification of all units using a common stack; and

42 (i) indicator of whether any stack identified in the plan is a bypass stack.

43 (2) for each unit and parameter required to be monitored, identification of monitoring methodology

44 information, consisting of monitoring methodology, monitor locations, substitute data approach for the

45 methodology, and general identification of quality assurance procedures. Ifthe proposed methodology is a site46 specific methodology submitted pursuant to Subparagraph (d) of Paragraph (2) of Subsection A of 20.11.46.16

47 NMAC, the description under Paragraph (2) of Subsection D of 20.11.46.16. shall describe fully all aspects of the

48 monitoring equipment, installation locations, operating characteristics, certification testing, ongoing quality

49 assurance and maintenance procedures, and substitute data procedures.

50 (3) if the WEB source intends to petition for a change to any specific monitoring requirement

51 otherwise required under 20.11.46.16 NMAC , such petition may be submitted as part of the initial monitoring plan.

52 (4) The department may issue a notice of approval or disapproval of the initial monitoring plan based

53 on the compliance of the proposed methodology with the requirements for monitoring in 20.11.46.16 NMAC .

54 G. Detailed monitoring plan: The account representative shall submit a detailed monitoring plan

55 that, except as otherwise specified in an applicable provisions in 20.11.46.21 NMAC or 20.11.46.22 NMAC, shall

56 contain the following information:

20.11.46 NMAC Page 13 Public Review Draft - October 5, 2003
I (1) identification and description of each monitoring component (including each monitor and its

2 identifiable components, such as analyzer or probe) in a CEMS (e.g., So, pollutant concentration monitor, flow

3 monitor, moisture monitor), a 40 CFR Part 75, appendix 0 monitoring system (e.g., fuel flowmeter, data acquisition

4 and handling system), or a protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC , including:

5 (a) manufacturer, model number and serial number;

6 (b) component or system identification code assigned by the facility to each identifiable

7 monitoring component, such as the analyzer or probe;

8 (c) designation ofthe component type and method ofsample acquisition or operation (e.g., in

9 situ pollutant concentration monitor or thermal flow monitor);

10 (d) designation ofthe system as a primary or backup system;

II (e) first and last dates the system reported data;

12 (I) status ofthe monitoring component; and

13 (g) parameter monitored.

14 (2) identification and description of all major hardware and software components ofthe automated

15 data acquisition and handling system, including:

16 (a) hardware components that perform emission calculations or store data for quarterly

17 reporting purposes (provide the manufacturer and model number); and

18 (b) software components (provide the identification ofthe provider and model or version

19 number).

20 (3) explicit formulas for each measured emissions parameter, using component or system

21 identification codes for the monitoring system used to measure the parameter that links the system observations with

22 the reported concentrations and mass emissions. The formulas shall contain all constants and factors required to

23 derive mass emissions from component or system code obsetvations and an indication ofwhether the formula is

24 being added, corrected, deleted, or is unchanged. The WEB source with a low mass emissions unit for which the

25 WEB source is using the optional low mass emissions excepted methodology in Section 75.19(c) of 40 CFR Part 75

26 is not required to report such formulas.

27 (4) inside cross-sectional area (square feet) at flow monitoring location (for units with flow monitors,

28 only).

29 (5) if using CEMS for SO, and flow, for each parameter monitored: scale, maximum potential

30 concentration (and method of calculation), maximum expected concentration (if applicable) (and method of

31 calculation), maximum potential flow rate (and method of calculations), span value, full-scale range, daily

32 calibration units ofmeasure, span effective date and hour, span inactivation date and hour, indication ofwhether

33 dual spans are required, default high range value, flow rate span, and flow rate span value and full scale value in

34 standard cubic feet per hour (scfh) for each unit or stack using SO, or flow component monitors.

35 (6) ifthe monitoring system or excepted methodology provides for use of a constant, assumed, or

36 default value for a parameter under specific circumstances, then the following information for each value ofsuch

37 parameter shall be included:

38 (a) identification ofthe parameter;

39 (b) default, maximum, minimum, or constant value, and units of measure for the value;

40 (c) purpose ofthe value;

41 (d) indicator of use during controlled and uncontrolled hours;

42 (e) types offuel;

43 (I) source ofthe value;

44 (g) value effective date and hour;

45 (h) date and hour value is no longer effective (if applicable); and

46 (1) for units usiog the excepted methodology under Section 75.19 of 40 CFR Part 75, the

47 applicable SO, emission factor.

48 (7) unless otherwise specified io Section 6.5.2.1 of appendix A to 40 CFR Part 75, for each unit or

49 common stack on which hardware CEMS are iostalled:

50 (a) the upper and lower boundaries ofthe range of operation (as defmed io Section 6.5.2.1 of

51 appendix A to 40 CFR Part 75), or thousand oflbthr ofsteam, or ft/sec (as applicable);

52 (h) the load or operating level(s) designated as normal io section 6.5.2.1 of appendix A to 40

53 CFR Part 75, or thousands of pounds per hour Ibthr ofsteam, or feet per second ft/sec (as applicable);

54 (c) the two load or operating levels (i.e., low, mid, or high) identified io section 6.5.2.1 of

55 appendix A to 40 CFR Part 75 as the most frequently used;

20.11.46 NMAC Page 14 Public Review Draft - October 5,2003
I (d) the date ofthe data analysis used to detennine the nonnalload (or operating) level(s) and

2 the two most frequently-used load (or operating) levels; and

3 (e) activation and deactivation dates when the nonnalload or operating level(s) change and are

4 updated.

5 (8) for each unit that is complying with 40 CFR Part 75 for which the optional fuel flow-to-load test

6 in Section 2.1.7 of appendix D to 40 CFR Part 75 is used:

7 (a) the upper and lower boundaries ofthe range of operation (as defmed in Section 6.5.2.1 of

8 appendix A to 40 CFR Part 75), expressed in thousand oflb/hr ofsteam;

9 (b) the load level designated as nonnal, pursuant to Section 6.5.2.1 of appendix A to 40 CFR

10 Part 75, expressed in thousands oflb/hr ofsteam; and

11 (c) the date ofthe load analysis used to detennine the nonnalload level.

12 (9) infonnation related to quality assurance testing, including (as applicable): identification ofthe

13 test strategy; protocol for the relative accuracy test audit; other relevant test infonnation; calibration gas levels

14 (percent ofspan) for the calibration error test and linearity check; calculations for detennining maximum potential

15 concentration, maximum expected concentration (if applicable), maximum potential flow rate, and span;

16 (10) if applicable, apportionment strategies under Sections 75.10 through 75.18 of 40 CFR Part 75.

17 (11) description ofsite locations for each monitoring component in a monitoring system, including

18 schematic diagrams and engineering drawings and any other documentation that demonstrates each monitor location

19 meets the appropriate siting criteria. For units monitored by a continuous emission monitoring system, diagrams

20 shali include:

21 (a) a schematic diagram identifying entire gas handling system from unit to stack for all units,

22 using identification numbers for units, monitor components, and stacks corresponding to the identification numbers

23 provided in the initial monitoring plan and Paragraphs (I) and (3) of Subsection G of 20.11.46.16 NMAC. The

24 schematic diagram must depict the height of any monitor locations. Comprehensive or separate schematic diagrams

25 shall be used to describe groups of units using a COmmon stack.

26 (b) stack and duct engineering diagrams showing the dimensions and locations offans, turning

27 vanes, air preheaters, monitor components, probes, reference method sampling ports, and other equipment that

28 affects the monitoring system location, perfonnance, or quality control checks.

29 (12) a data flow diagram denoting the complete infonnation handling path from output signals of

30 CEMS components to fmal reports.

31 H. In addition to supplying the infonnation in Subsections F and G above, the WEB source with an

32 SO, emitting unit using either ofthe methodologies in Subparagraph (b) of Paragraph (2) of Subsection A of

33 20.11.46.16 NMAC shall include the following infonnation in its monitoring plan for the specific situations

34 described:

35 (1) for each gas-fired or oil-fired SO, emitting unit for which the WEB source uses the optional

36 protocol in appendix D to 40 CFR Part 75 for SO, mass emissions, the WEB source shall include the following

37 infonnation in the monitoring plan:

38 (a) parameter monitored;

39 (b) type offuel measured, maximum fuel flow rate, units of measure, and basis ofmaximum

40 fuel flow rate (i.e., upper range value or unit maximum) for each fuel flowmeter;

41 (c) test method used to check the accuracy of each fuel flowmeter;

42 (d) submission status of the data;

43 (e) monitoring system identification code;

44 (I) the method used to demonstrate that the unit qualifies for monthly gross calorific value

45 (GCY) sampling or for daily or annual fuel sampling for sulfur content, as applicable;

46 (g) a schematic diagram identifying the relationship between the unit, all fuel supply lines, the

47 fuel flowmeter(s), and the stack(s). The schematic diagram must depict the installation location of each fuel

48 flowmeter and the fuel sampling location(s). Comprehensive and separate schematic diagrams shall be used to

49 describe groups ofunits using a common pipe;

50 (h) for units using the optional default SO, emission rate for "pipeline natural gas" or "natural

51 gas" in appendix D to 40 CFR Part 75, the infonnation on the sulfur content ofthe gaseous fuel used to demonstrate

52 compliance with either Section 2.3.1.4 or 2.3.2.4 of appendix D to 40 CFR Part 75;

53 (1) for units using the 720 hour test under Section 2.3.6 of appendix D to 40 CFR Part 75 to

54 detennine the required sulfur sampling requirements, report the procedures and results ofthe test; and

55 (j) for units using the 720 hour test under Section 2.3.5 of appendix D to 40 CFR Part 75 to

56 detennine the appropriate fuel GCY sampling frequency, report the procedures used and ille results ofthe test.

20.11.46 NMAC Page 15 Public Review Draft - October 5,2003
I (2) for each SO, emilling unit for which the WEB source uses the low mass emission excepted

2 methodology ofsection 75.19 to 40 CFR Part 75, the WEB source shall include the following infonnation in the

3 monitoring plan that accompanies the initial certification application:

4 (a) the results ofthe analysis perfonned to qualifY as a low mass emissions unit under Section

5 75.19(c) to 40 CFR Part 75. This report shall include either the previous three years actual or projected emissions.

6 The following items shall be included: a) current calendar year of application; b) type of qualification; c) years one,

7 two, and three; d) annual measured, estimated or projected SO, mass emissions for years one, two, and three; and e)

8 annual operating hours for years one, two, and three.

9 (b) a schematic diagram identifYing the relationship between the unit, all fuel supply lines and

10 tanks, any fuel flowmeter(s), and the stack(s). Comprehensive or separate schematic diagrams shall be used to

II describe groups of units using a common pipe;

12 (c) for units which use the long tenn fuel flow methodology under section 75.19(c)(3) to 40

13 CFR Part 75, a diagram ofthe fuel flow to each unit or group of units and a detailed description of the procedures

14 used to detennine the long tenn fuel flow for a unit or group of units for each fuel combusted by the unit or group of

15 units;

16 (d) a statement that the unit bums only gaseous fuel(s) and/or fuel oil and a list ofthe fuels that

17 are burned or a statement that the unit is projected to bum only gaseous fuel(s) and/or fuel oil and a list ofthe fuels

18 that are projected to be burned;

19 (e) a statement that the unit meets the applicability requirements in Sections 75.19(a) and (b) to

20 40 CFR Part 75 with respect to SO, emissions; and

21 (I) any unit historical actual, estimated and projected SO, emissions data and calculated SO,

22 emissions data demonstrating that the unit qualifies as a low mass emissions unit under Sections 75.19(a) and (b) to

23 40 CFR Part 75.

24 (3) for each gas-fired unit the WEB source shall include the following in the monitoring plan: current

25 calendar year, fuel usage data as specified in the defmition of gas-fired in Section 72.2 of 40 CFR Part 72, and an

26 indication ofwhether the data are actual or projected data.

27 I. The specific elements of a monitoring plan under Subsection D of20.11.46.16 NMAC shall not be

28 part of an operating pennit for a WEB source issued in accordance with the Title V of the Clean Air Act, and

29 modifications to the elements ofthe plan shall not require a pennit modification.

30 J. Certification and recertification:

31 (1) All monitoring systems are subject to initial certification and recertification testing as specified in

32 40 CFR Part 75, 20.11.46.21 NMAC or; 20.11.46.22 NMAC. Certification or recertification of a monitoring system

33 by the EPA for a WEB source that is subject to 40 CFR Part 75 under a requirement separate from 20.11.46 NMAC

34 shall constitute certification under the WEB Trading Program.

35 (2) The WEB source with an SO, emitting unit not otherwise subject to 40 CFR Part 75 that monitors

36 SO, mass emissions in accordance with 40 CFR Part 75 to satisfY the requirements of20.11.46.16 NMAC shall

37 perfonn all ofthe tests required by that regulation and shall submit the following:

38 (a) a test notice, not later than 21 days before the certification testing ofthe monitoring system,

39 provided that the department may establish additional requirements for adjusting test dates after this notice as part of

40 the approval ofthe initial monitoring plan under Subsection F of 20.11.46.16 NMAC;

41 (b) an initial certification application within 45 days after testing is complete.

42 (c) A monitoring system shall be considered provisionally certified while the application is

43 pending, and the system shall be deemed certified ifthe department does not approve or disapprove the system

44 within six months after the dale on which the application is submitted.

45 (d) Both at the time of the initial certification or recertification application submission and at

46 the time ofthe audit, if an audit of any monitoring certified under 20.11.46 NMAC, and a review ofthe initial

47 certification or recertification application, reveal that any system or component should not have been certified or

48 recertified because it did not meet a particular perfonnance specification or other requirement of 20.11.46 NMAC,

49 the department will issue a notice of disapproval ofthe certification status ofsuch system or component. For the

50 purposes of Paragraph (2) of Subsection J of 20.11.46.16 NMAC, an audit shall be either a field audit ofthe facility

51 or an audit of any infonnation submitted to the department regarding the facility. By issuing the notice of

52 disapproval, the certification status is revoked prospectively, and the data measured and recorded shall not be

53 considered valid quality-assured data from the date ofissuance of the notification of the revoked certification status

54 until the date and time that the WEB source completes subsequently approved initial certification or recertification

55 tests in accordance with the procedures in Subsection J of 20.11.46.16 NMAC. The WEB source shall apply the

20.11.46 NMAC Page 16 Public Review Draft - October 5,2003
I substitute data procedures in Subsection L of 20.11.46.16 NMAC to replace, prospectively, all ofthe invalid,

2 non-quality-assured data for each disapproved system or component.

3 K. Ongoing quality assurance and quality control: The WEB source shall satisty the applicable

4 quality assurance and quality control requirements of 40 CFR Part 75 or, ifthe WEB source is subject to a WEB

5 protocol in 20.11.46.21 NMAC, the applicable quality assurance and quality control requirements in 20.11.46.21

6 NMAC on and after the date that certification testing commences.

7 L. Substitute data procedures:

8 (I) For any period after certification testing is complete in which quality assured, valid data are not

9 being recorded by a monitoring system certified and operating in accordance with 20.11.46 NMAC, missing or

10 invalid data shall be replaced with substitute data in accordance with 40 CFR Part 75 or, if the WEB source is

II subject to a WEB protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC, with substitute data in accordance with

12 20.11.46.21 NMAC.

13 (2) For an SO, emitting unit that does not have a certified or provisionally certified monitoring

14 system in place as ofthe beginning ofthe first control period for which the unit is subject to the WEB trading

15 program, the WEB source shall:

16 (a) if the WEB Source will use a CEMS to comply with Section 16 of20.11.46 NMAC,

17 substitute the maximum potential concentration of So, for the unit and the maximum potential flow rate, as

18 determined in accordance with 40 CFR Part 75. The procedures for conditional data validation under Section

19 75.20(b)(3) may be used for any monitoring system under 20.11.46 NMAC that uses these 40 CFR Part 75

20 procedures, as applicable;

21 (b) ifthe WEB source will use the 40 CFR Pan 75 appendix D methodology, substitute the

22 maximum potential sulfur content, density or gross calorific value for the fuel and the maximum potential fuel flow

23 rate, in accordance with Section 2.4 of appendix D to 40 CFR Part 75;

24 (c) if the WEB source will use the 40 CFR Pan 75 methodology for low mass emissions units,

25 substitute the SO, emission factor required for the unit as specified in 40 CFR 75.19 and the maximum rated hourly

26 heat input, as defined in 40 CFR 72.2; or

27 (d) if using a protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC , follow the procedures in

28 the applicable protocol.

29 M. Compliance deadline:

30 (I) The initial monitoring plan shall be submitted by the following dates:

31 (a) for each source that is a WEB source on or before the Program Trigger Date, the

32 monitoring plan shall be submitted 180 days after such Program Trigger Date.

33

34 (b) for any existing source that becomes a WEB source after the program trigger date, the

35 monitoring plan shall be submitted by September 30 ofthe year following the inventory year in which the source

36 exceeded the emissions threshold.

37 (c) for any new WEB source, the monitoring plan shall be included with the permit application

38 under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC.

39 (2) A detailed monitoring plan under Subsection E of20.11.46.16 NMAC shall be submitted no later

40 than 45 days prior to commencing certification as required by Paragraph (3) of Subsection M of20.11.46.16

41 NMAC.

42 (3) Emission monitoring systems shall be installed, operational and shall have met all ofthe

43 certification testing requirements ofthis 20.11.46.16 NMAC (including any referenced in 20.11.46.21 NMAC or

44 20.11.46.22 NMAC ) by the following dates:

45 (a) for each source that is a WEB source on or before the program trigger date, two years prior

46 to the start ofthe first control period as described in 20.11.46.19 NMAC.

47 (b) for any existing source that becomes a WEB source after the program trigger date, one year

48 after the due date for the monitoring plan under Subparagraph (b) of Paragraph (2) of Subsection M of20.11.46.16

49 NMAC.

50 (c) for any new WEB source, or any new unit at a WEB source under Subparagraph (a) or (b)

51 of paragraph (3) of Subsection M of20.11.46.16 NMAC, , the earlier of90 unit operating days or 180 calendar days

52 after the date the new source commences operation.

53 (4) The WEB source shall submit test notices and certification applications in accordance with the

54 deadlines set forth in Paragraph (2) of Subsection J of20.11.46.16 NMAC

55 (5) For each applicable control period, the WEB source shall submit each quarterly report under

56 Subsection a of 20.11.46.16 NMAC by no later than 30 days after the end of each calendar quarter and shall submit

20.11.46 NMAC Page 17 Public Review Draft - October 5, 2003
I the annual report under Subsection 0 of 20.11.46.16 NMAC no later than 60 days after the end of each calendar

2 year.

3 N. Recordkeeping:

4 (1) Except as provided in Paragraph (2) of Subsection N of20.11.46.106 NMAC, the WEB source

5 shall keep copies of all reports, registration materials, compliance certifications, sulfur dioxide emissions data,

6 quality assurance data, and other submissions under 20.11.46 NMAC for a period of five years. In addition, the

7 WEB source shall keep a copy of all Account Certificates ofRepresentation for the duration ofthis program. Unless

8 otherwise requested by the WEB source and approved by the Department, the copies shall be kept on site at the

9 source.

10 (2) The WEB source shall keep records of all operating hours, quality assurance activities, fuel

11 sampling measurements, hourly averages for S02, stack flow, fuel flow, or other continuous measurements, as

12 applicable, and any other applicable data elements specified in 20.11.46.16 NMAC, 20.11.46.21 NMAC or in

13 20.11.46.22 NMAC. The WEB source shall maintain the applicable records specified in 40 CFR Part 75 for any SO,

14 emitting unit that uses a 40 CFR Part 75 monitoring method to meet the requirements of 20.11.46.16 NMAC.

15 O. Reporting:

16 (1) Quarterly reports. For each SO, emitting unit, the account representative shall submit a quarterly

17 report within thirty days after the end of each calendar quarter. The report shall be in a format specified by the

18 department to include hourly and quality assurance activity information and shall be submitted in a manner

19 compatible with the emissions tracking database designed for the WEB trading program. If the WEB source

20 submits a quarterly report under 40 CFR Part 75 to the EPA Administrator, no additional report under Paragraph (I)

21 of Subsection 0 of 20.11.46.16 NMAC shall be required, provided, however, that the department may require that a

22 copy ofthat report (or a separate statement of quarterly and cumulative annual SO, mass emissions) be submitted

23 separately to the department.

24 (2) Annual report: Based on the quarterly reports, each WEB source shall submit an annual statement

25 of total annual SO, emissions for all SO, emitting units at the source. The annual report shall identify the total

26 emissions for all units monitored in accordance with Subsection A of20.11.46.16 NMAC and the total emissions for

27 all units with emissions estimated in accordance with Subsection B of 20.11.46.16 NMAC. The annual report shall

28 be submitted within 60 days after the end of a control period.

29 (3) Ifthe department so directs, any monitoring plan, report, certification, recertification, or

30 emissions data required to be submitted under 20.11.46.16 NMAC shall be submitted to the tracking system

31 administrator.

32 (4) The department may review and reject any report submitted under this Subsection 0 of

33 20.11.46.16 NMAC that contains errors or fails to satisfy the requirements of20.11.46.16 NMAC, and the account

34 representative shall resubmit the report to correct any deficiencies.

35 (5) A WEB source may petition for an alternative to any requirement specified in Paragraph (2) of

36 Subsection A of20.11.46.16 NMAC. The petition shall require approval of the department and the EPA

37 Administrator. Any petition submitted under Paragraph 5 of Subsection 0 of 20.11.46.16 NMAC shall include

38 sufficient information for the evaluation ofthe petition, including, at a minimum, the following information:

39 (0) identification ofthe WEB source and applicable SO, emitting unit(s);

40 (b) a detailed explanation ofwhy the proposed alternative is being suggested in lieu ofthe

41 requirement;

42 (c) a description and diagram of any equipment and procedures used in the proposed

43 alternative, if applicable;

44 (d) a demonstration that the proposed alternative is consistent with the purposes ofthe

45 requirement for which the alternative is proposed and is consistent with the purposes of 20.11.46 NMAC and that

46 any adverse effect of approving such alternative will be de minimis; and

47 (e) any other relevant information that the department may require.

48 (6) For any monitoring plans, reports, or other information submitted under 20.11.46.16 NMAC, the

49 WEB source shall ensure that, where applicable, identifying information is consistent with the identifying

50 information provided in the most recent certificate ofrepresentation for the WEB source submitted under

51 20.11.46.12 NMAC.

52 [12/31/03]

53

54 20.11.46.17 ALLOWANCE TRANSFERS

55 A. Procedure: To transfer allowances, the account representative shall submit the following

56 information to the tracking system administrator:

20.11.46 NMAC Page 18 Public Review Draft - October 5, 2003
(1) the transfer account number(s) identifying the transferor account;

(2) the transfer account number(s) identifying the transferee account;

(3) the serial number of each allowance to be transferred; and

(4) the transferor's account representative's name and signature and date ofsubmission.

B. Deadline: The allowance transfer deadline is midnight Pacific Standard Time March I of each

year (or if this date is not a business day, midnight ofthe first business day thereafter) following the end ofthe

control period. By this time, the transfer ofthe allowances into the WEB source's compliance account must be

correctly submitted to the tracking system administrator in order to demonstrate compliance under Subsection A of

20.11.46.19 NMAC for that control period.

C. Retirement of allowances: To transfer allowances for the purpose ofretitement, the account

representative shall submit the following information to the tracking system administrator:

(1) the transfer account number(s) identifying the transferor account;

(2) the serial number of each allowance to be retired; and

(3) the transferor's account representative's name and signature and date ofsubmission accompanied

by a signed statement acknowledging that each retired allowance as no longer available for future transfers from or

to any account.

[12/31/03]

20.11.46.18 USE OF ALLOWANCES FROM A PREVIOUS YEAR

A. Any allowance that is held in a compliance account or general account shall remain in such an

account unless and until the allowance is deducted in conjunction with the compliance process, or transferred to

another account.

B. In order to demonstrate compliance under Subsection A of 20.11.46.19 NMAC for a control

period, WEB sources shall only use allowances allocated for that current control period or any previous year.

Because all allowances held in a special reserve compliance account for a WEB source that monitors certain units in

accordance with Subsection B of 20.11.46.16 NMAC will be deducted for compliance for each control period, no

banking ofsuch allowances for use in a subsequent year is permitted by 20.11.46 NMAC.

C. Ifflow control procedures for the current control period have been triggered as outlined in Section

F(9)(b) ofChapter VI ofthe SO, milestones and backstop trading program implementation plan element, then the

use of allowances that were allocated for any previous year shall be limited as follows:

(1) The number of allowances that are held in each compliance account and general account as ofthe

allowance transfer deadline for the immediately previous year and that were allocated for any previous year shall be

determined.

(2) The number determined in Paragraph (I) of Subsection C of20.11.46.18 NMAC shall be

multiplied by the flow control ratio established in accordance with Section F(9)(b) ofthe SO, milestones and

backstop trading program implementation plan element to determine the number of allowances that were allocated

for a previous year that can be used without restriction for the current control period.

(3) Allowances that were allocated for a previous year in excess ofthe number determined in

Paragraph (2) ofSubsection C of 20.11.46.18 NMAC may also be used for the current control period. Ifsuch

allowances are used to make a deduction, two allowances shall be deducted for each deduction ofone allowance

required under 20.11.46.19 NMAC.

D. Special provisions for the year 2018. After compliance with the 2017 allowance limitation has

been determined in accordance with Subsection A of 20.11.46.19 NMAC, allowances allocated for any year prior to

2018 shall not be used for determining compliance with the 2018 allowance limitation or any future allowance

limitation.

[12/31/03]

I

2

3

4

5

6

7

8

9

10

II

12

13

14

IS

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

20.11.46.19

A.

(1)

COMPLIANCE

Compliance with allowance limitations:

In accordance with Paragraph (2) of Subsection A of 20.11.46.19 NMAC and 20.11.46.18

NMAC, the WEB source shall hold allowances, as ofthe allowance transfer deadline in the WEB

source's compliance account (together with any current control year allowances held in the WEB

source special reserve compliance account under Subsection B of 20.11.46.16 NMAC) in an

amount not less than the total SO, emissions for the control period from the WEB source, as

determined under the monitoring and reporting requirements of20.11.46.16 NMAC.

20.11.46 NMAC Page 19 Public Review Draft - October 5, 2003
I (a) For each source that is a WEB source on or before the program trigger date, the fIrst control

2 period is the calendar year that is six years following the calendar year for which SO, emissions exceeded the

3 milestone in accordance with procedures in Section A ofthe SO, milestones and backstop trading program

4 implementation plan element.

5 (b) For any existing source that becomes a WEB source after the program trigger date, the fIrst

6 control period is the calendar year that is four years following the inventory year in which the source exceeded the

7 SO, emissions threshold.

8 (c) For any new WEB source after the program trigger date, the fIrst control period is the fIrst

9 full calendar year that the source is in operation.

10 (d) Ifthe WEB trading program is triggered in accordance with the 2013 review procedures in

II Section D(7) of Chapter VI of the SO, milestones and backstop trading program implementation plan element, the

12 fIrst control period for each source that is a WEB source on or before the program trigger date is the year 2018.

13 (2) Allowance transfer deadline: An allowance may only be deducted from the WEB source's

14 compliance account if:

15 (a) the allowance was allocated for the current control period Or meets the requirements in

16 20.11.46.18 NMAC for use of allowances from a previous control period, and

17 (b) the allowance was held in the WEB source's compliance account as of the allowance

18 transfer deadline for the current control period, or was transferred into the compliance account by an allowance

19 transfer correctly submitted for recording by the allowance transfer deadline for the current control period.

20 (3) Compliance with allowance limitations shall be determined as follows:

21 (a) The total annual SO, emissions for all SO, emitting units at the source that are mortitored

22 under Subsection B of 20.11.46.16 NMAC, as reported by the source in Paragraph (2) and Paragraph (4) of

23 Subsection 0 of 20.11.46.16 NMAC, and recorded in the emissions tracking database, shall be compared to the

24 allowances held in the source's special reserve compliance account as ofthe allowance transfer deadline for the

25 current control period, adjusted in accordance with 20.11.46.18 NMAC. If the emissions are equal to or less than

26 the allowances in such account, all such allowances shall be retired to satisfy the obligation to hold allowances for

27 such emissions. If the total emissions from such units exceeds the allowances in such special reserve account, the

28 WEB source shall account for such excess emissions in Subparagraph (b) of Paragraph (3) of Subsection A of

29 20.11.46.19 NMAC.

30 (b) The total annual So, emissions for all So, emitting units at the source that are monitored

31 under Subsection A of20.11.46.16 NMAC, as reported by the source as required by Paragmph (2) and Paragraph (4)

32 of Subsection 0 of 20.11.46.16 NMAC, and recorded in the emissions tracking database, together with any excess

33 emissions as calculated in the Subparagraph (a) ofParagmph (3) of Subsection A of 20.11.46.19, shall be compared

34 to the allowances held in the source's compliance account as ofthe allowance transfer deadline for the current

35 control period, adjusted in accordance with 20.11.46.18 NMAC.

36 (4) Other than allowances in a special reserve compliance account for units monitored under

37 Subsection B of 20.11.46.16 NMAC, to the extent consistent with 20.11.46.18 NMAC, allowances shall be deducted

38 for a WEB source for compliance with the allowance limitation as directed by the WEB source's account

39 representative. Deduction of any other allowances as necessary for compliance with the allowance limitation shall

40 be on a fIrst-in, fIrst-out accounting basis in the order ofthe date and time of their recording in the WEB source's

41 compliance account, beginning with the allowances allocated to the WEB source and continuing with the allowances

42 transferred to the WEB source's compliance account from another compliance account or general account The

43 allowances held in a special reserve compliance account pursuant to Subsection B of20.11.46.16 NMAC shall be

44 deducted as specifIed in Subparagraph (a) of Paragraph (3) of Subsection A of 20.11.46.19 NMAC.

45 B. Certilication of compliance:

46 (1) For each control period in which a WEB source is subject to the allowance limitation, the account

47 representative ofthe source shall submit to the department a compliance certifIcation report for the source.

48 (2) The compliance certifIcation report shall be submitted no later than the allowance transfer

49 deadline of each control period, and shall contain the following:

50 (a) identifIcation of each WEB source;

51 (b) at the account representative's option, the serial numbers ofthe allowances that are to be

52 deducted from a source's compliance account for compliance with the allowance limitation; and

53 (c) the compliance certifIcation report according to Paragraph (3) of Subsection B of

54 20.11.46.19.

55 (3) In the compliance certifIcation report, the account representative shall certify, based on reasonable

56 inquiry of those persons with primary responsibility for operating the WEB source in compliance with the WEB

20.11.46 NMAC Page 20 Public Review Draft - October 5, 2003
I trading program, whether the WEB source for which the compliance certification is submitted was operated during

2 the control period covered by the report in compliance with the requirements ofthe WEB trading program

3 applicable to the source including:

4 (a) whether the WEB source operated in compliance with the SO, allowance limitation;

5 (b) whether SO, emissions data has been submitted to the department in accordance with

6 Subsection A of 20.11.46.16 NMAC and other applicable guidance, for review, revision as necessary, and

7 finalization for forwarding to the SO, allowance tracking system for recording;

8 (c) whether the monitoring plan that governs the WEB source has been maintained to reflect

9 the actual operation and monitoring ofthe source, and contains all infOlmation necessary to attribute So, emissions

10 to the source, in accordance with Subsection A of 20.11.46.16 NMAC;

II (d) whether all the SO, emissions from the WEB source, if applicable, were monitored or

12 accounted for either through the applicable monitoring or through application ofthe appropriate missing data

13 procedures;

14 (e) if applicable, whether any SO, emitting unit for which the WEB source is not required to

15 monitor in accordance with Paragraph (3) of Subsection A of 20.11.46.16 NMAC remained permanently retired and

16 had no emissions for the entire applicable period; and

17 (I) whether there were any changes in the method ofoperating or monitoring the WEB source

18 that required monitor recertification. Ifthere were any such changes, the report shall specify the nature, reason, and

19 date of the change, the method to determine compliance status subsequent to the change, and specifically, the

20 method to determine SO, emissions.

21 C. Penalties for any WEB source exceeding its allowance limitations:

22 (1) Allowance deduction penalties: ,

23 (a) if emissions from a WEB source exceed the allowance limitation for a control period, as

24 determined in accordance with Subsection A of 20.11.46.19 NMAC, the source's allowance held in its eompliance

25 account will be reduced by an amount equal to two times the source's tons of excess emissions. If the complianee

26 account does not have sufficient allowances allocated for that control period, the required number of allowances

27 shall be deducted from the WEB source's compliance account regardless of the control period for which they were

28 allocated, once allowances are recorded in the account.

29 (b) any allowance deduction required under 20.11.46.19 NMAC shall not reduce or otherwise

30 affect the liability ofthe owners and operators ofthe WEB source for any fine, penalty or assessment or their

31 obligation to comply with any other remedy, for the same violation, as ordered under the Clean Air Act,

32 implementing regulations or applicable state or tribal law. Accordingly, a violation can be assessed each day ofthe

33 control period for each ton ofSo, emissions in excess of its allowance limitation if the department so chooses.

34 (2) Financial penalties: a fmaneial penalty of$5,000 per ton of SO, emissions in excess ofthe WEB

35 source's allowance limitation shall be levied. Each ton represents a separate violation.

36 D. Liability:

37 (1) WEB Source liability for non-compliance: Separate from and regardless of any automatic

38 penalties assessed for allowance deduction penalty and financial penalty, a WEB source that violates any

39 requirement of20.11.46 NMAC is subject to administrative, civil and criminal penalties under the Air Quality

40 Control Act and the Clean Air Act. Each day ofthe control period is a separate violation, and each ton of SO,

41 emissions in excess ofa source's allowance limitation is a separate violation.

42 (2) General liability:

43 (a) Any provision ofthe WEB trading program that applies to a source or an account

44 representative shall apply also to the owners and operators ofsuch source.

45 (b) Any person who violates any requirement or prohibition of the WEB trading program shall

46 be subject to enforcement pursuant to applicable state, tribal or federal law.

47 (c) Any person who knowingly makes a false material statement in any record, submission, or

48 report under this WEB trading program shall be subject to criminal enforcement pursuant to the applicable state,

49 tribal or federal law.

50 [12/31/03]

51

52 20.11.46.20 SPECIAL PENALTY PROVISIONS FOR YEAR 2018 MILESTONE

53 A. Ifthe WEB trading program is triggered as outlined in Section D ofChapter VI ofthe SO,

54 milestones and backstop trading program implementation plan element, and the fITSt control period will not occur

55 until after the year 2018, the following provisions shall apply for the 2018 emissions year.

20.11.46 NMAC Page 21 Public Review Draft - October 5, 2003
(2) Fuel gas combustion devices include boilers, process heaters, and flares used to bum fuel gas

generated at a petroleum refinery.

(3) Fuel gas means any gas which is generated and combusted at a petroleum refmery. Fuel gas does

not ioclude:

(a) natural gas, unless combined with other gases generated at a petroleum refinery;

(b) gases generated by a catalytic cracking unit catalyst regenerator;

(c) gases generated by fluid coking burners;

(d) gases combusted to produce sulfur or sulfuric acid; or

(e) process upset gases generated due to startup, shutdown, or malfunctions.

(1) All WEB sources shall register, and open a compliance account within 180 days after the program

trigger date, in accordance with Subsection A of 20.11.46.13 NMAC and 20.11.46.15 NMAC.

(2) The tracking system administrator shall record the allowances for the 2018 control period for each

WEB source io the source's compliance account once the department allocates the 2018 allowances under Section

F(l) and G( I) ofChapter VI of the SO, milestones and backstop tradiog program implementation plan element.

(3) The allowance transfer deadline is midnight Pacific Standard Time on May 30, 2021. WEB

sources may transfer allowances as provided in Subsection A of 20.11.46.17 NMAC until the allowance transfer

deadlioe.

(4) A WEB source shall hold allowances allocated for 2018 includiog those transferred iota the

compliance account by an allowance transfer correctly submitted by the allowance transfer deadlioe, in an amount

not less than the WEB source's total So, emissions for 2018. Emissions shall be determioed using the pre-trigger

monitoring provisions in Section B ofthe SO, milestones and backstop tradiog program implementation plan

element, and 20.11.46.9 NMAC.

(5) An allowance deduction penalty and financial penalty shall be assessed and levied in accordance

with Subsection D of 20.11.46.18 NMAC, Paragraph (4) of Subsection A of 20.11.46.19 NMAC and Subsection C

of20.11.46.19 NMAC except that SO, emissions shall be determined under Paragraph (4) of Subsection A of

20.11.46.20 NMAC.

B. The provisions in 20.11.46.20 NMAC shall continue to apply for each year after the 2018

emission year until:

(1) the first control period under the WEB tradiog program; or

(2) the department determioes, in accordance with Section D(6)U) ofChapter VI ofthe SO,

milestones and backstop tradiog program implementation plan element, that the 2018 S02 milestone has been met.

C. if provisions of Subsection A or 20.11.46.20 NMAC was implemented, the followiog shall apply

to each emissions year after the 2018 emissions year:

(1) the trackiog system admioistrator will record the allowances for the control period for the specific

year for each WEB source in the source's compliance account once the department allocates the allowances under

Section F(I) ofChapter VI ofthe S02 milestones and backstop trading program implementation plan element.

(2) the allowance transfer deadline is midnight Pacific Standard Time on March I of each year (or if

this date is not a business day, midnight ofthe first business day thereafter) following the end of the specific

emissions year. WEB sources may transfer allowances as provided in Subsection A of 20.11.46.17 NMAC until the

allowance transfer deadline.

(3) A WEB source must hold allowances allocated for that specific emissions year, or any year after

2018, includiog those transferred into the compliance account by an allowance transfer correctly submitted by the

allowance transfer deadlioe, in an amount not less than the WEB source's total SO, emissions for the specific

emissions year. Emissions are determined using the pre-trigger monitoring provisions in Section D ofthe 802

milestones and backstop trading program implementation plan element, and 20.11.46.9 NMAC.

(4) An allowance deduction penalty and financial penalty shall be assessed and levied in accordance with

Subsection D of20.11.46.18 NMAC, Paragraph (4) of Subsection A of20.11.46.19 NMAC, and Subsection C of

20.11.46.19 NMAC, except that SO, emissions shall be determined under Paragraph (3) of Subsection C of

20.11.46.20 NMAC.

[12/31/03]

I

2

3

4

5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

20.11.46.21

A.

(1)

refmeries.

SO, MONITORING OF FUEL GAS COMBUSTION DEVICES

Applicability

The provisions ofthis protocol are applicable to fuel gas combustion devices at petroleum

20.11.46 NMAC Page 22 Public Review Draft - October 5,2003
tests;

the range;

(iii) record negative values of zero drift, for initial certification and daily calibration error

(Iv) calibration drift shall be 5.0% ofthe span; and

(v) methods 15A, 16, or approved alternatives for total sulfur, are the reference methods

for the relative accuracy test. The relative accuracy test shall include a bias test in accordance with Paragraph (3) of

SubsectionD of20.11.46.21 NMAC.

(c) All continuous fuel flow meters shall comply with the provisions of Section 2.1.5 of

Appendix D to 40 CFR Part 75.

(d) The hourly mass SO, emissions rate for all the fuel combustion devices monitored by this

approach shall be calculated using the following equation:

Ii, (Cs)(Q,)(K)

Ii, Total SO, emissions in Iblhr from applicable fuel gas combustion devices

Cs =Sulfur content ofthe fuel gas as H,S (ppmv)

Q,~ Fuel gas flow rate to the applicable fuel gas combustion devices (scflhr)

K 1.660 X 10-7 (lb/scf)/ppmv

where:

B. Monitoring Requirements

(1) Except as provided in Paragraph (2) and Paragraph (3) of Subsection B of 20.11.46.21 NMAC,

fuel gas combustion devices shall use a continuous fuel gas monitoring system (CFGMS) to detennine the total

sulfur content (reported as H,S) ofthe fuel gas mixture prior to combustion, and continuous fuel flow meters to

detennine the amount offuel gas bwned.

(0) Fuel gas combustion devices having a common source offuel gas may be monitored for

sulfur content at one location, if monitoring at that location is representative of the sulfur content ofthe fuel gas

being burned in any fuel gas combustion device.

(b) The CFGMS shall meet the perfonnance requirements in perfonnance specification 2 in

appendix B to 40 CFR Part 60, and the following:

(i) continuously monitor and record the concentration by volwne oftotal sulfur

compounds in the gaseous fuel reported as ppmv H,S;

(ii) have the span value set so that the majority ofreadings fall between ten and 95% of

(2) In place of a CFGMS in Paragraph (I) of Subsection B of 20.11.46.21 NMAC, fuel gas

combustion devices having a common source offuel gas may be monitored with an SO, CEMS and flow CEMS and

(if necessary) a moisture monitoring system at only one location, if the CEMS monitoring at that location is

representative ofthe SO, emission rate (lb SO,/scf fuel gas burned) of all applicable fuel gas combustion devices.

Continuous fuel flow meters shall be used in accordance with Paragraph (2) of Subsection B of 20.11.46.21 NMAC,

and the fuel gas combustion device monitored by a CEMS shall have separate fuel metering.

(0) Each CEMS for SO, and flow, and (if applicable) moisture, shall comply with the operating

requirements, perforroance specifications, and quality assurance requirements of 40 CFR Part 75.

(b) All continuous fuel flow meters shall comply with the provisions of Section 2.1.5 of

appendix D to 40 CFR Part 75.

(c) The SO, hourly mass emissions rate for all the fuel gas combustion devices monitored by

this approach shall be detennined by the ratio ofthe amount of fuel gas burned by the CEMS-monitored fuel gas

combustion device to the total fuel gas burned by all applicable fuel gas combustion devices using the following

equation:

Ii, (Em)(Q,)/(Qm)

where: Ii, =Total SO, emissions in lblhr from applicable fuel gas combustion devices.

Em =SO, emissions in lblhr from the CEMS-monitored fuel gas combustion device, calculated using

Equation F-I or (if applicable) F-2 in appendix F to 40 CFR Part 75

Q, Fuel gas flow rate (sc£'hr) from applicable fuel gas combustion devices.

Qm Fuel gas flow rate (scflhr) to the CEMS-monitored fuel gas combustion device.

(3) In place of a CFGMS in Paragraph (I) of Subsection B of 20.11.46.21 NMAC, fuel gas

combustion devices having a common source offuel gas may be monitored with an SO, - diluent CEMS at only one

location, ifthe CEMS monitoring at that location is representative ofthe SO, emission rate (lb SO,/mmBtu) of all

I

2

3

4

5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

20. 11.46 NMAC Page 23 Public Review Draft - October 5,2003
I applicable fuel gas combustion deviccs. Ifthis option is selected, the owner or operator shall conduct fuel gas

2 sampling and analysis for gross calorific value (GCV), and shall use continuous fuel flow metering in accordance

3 with Paragraph (I) of Subsection B of 20.11.46.21 NMAC, with separate fuel metering for the CEMS-monitored

4 fuel gas combustion device.

5 (a) Each SO,. diluent CEMS shall comply with the applicable provisions for SO, monitors and

6 diluent monitors in 40 CFR Part 75, and shall use the procedures in Section 3 of appendix F to 40 CFR Part 75 for

7 determining SO, emission rate (lb/mmBtu) by substituting the term SO, for NO, in that section, and using a K factor

8 of 1.660 x 10. 7 (lb/scf) ppmv instead ofthe NO, K factor.

9 (b) All continuous fuel flow meters and fuel gas sampling and analysis for GCV to determine

10 the heat input ratio shall comply with the applicable provisions of Section 2.1.5 and 2.3.4 of appendix D to 40 CFR

11 Part 75.

12 (c) The SO, hourly mass emissions rate for all the fuel gas combustion devices monitored by

13 this approach shall be determined by the ratio ofthe fuel gas heat input to the CEMS-monitored fuel gas combustion

14 device to the total fuel gas heat input to all applicable fuel gas combustion devices using the following equation:

15 E, (E"')(Q,)/(GeV) I 10'

16 where: E. Total SO, emissions in Ibs/hr from applicable fuel gas combustion devices.

17 Em SO, emissions in Ib/mmBtu from the CEMS - monitored fuel gas combustion device.

18 Q, = Fuel gas flow rate (scf/hr) to the applicable fuel gas combustion devices.

19 GCV Fuel Gross Calorific Value (Btu/scf)

20 I0' Conversion from Btu to million Btu

21 (d) The owner or operator shall calculate total SO, mass emissions for each calendar quarter

22 and each calendar year based on the emissions in lblhr and Equations F-3 and F-4 in appendix F to 40 CFR Part 75.

23 C. Certification and recertification requirements: All monitoring systems are subject to initial

24 certification and recertification testing as follows:

25 (1) the owner or operator shall comply with the initial testing and calibration requirements in

26 performance specification 2 in appendix B of 40 CFR Part 60 and Subparagraph (b) of Paragraph (I) of Subsection

27 B of 20.11.46.21 NMAC for each CFGMS.

28 (2) each CEMS for SO, and flow or each SO,-diluent CEMS shall comply with the testing and

29 calibration requirements specified in 40 CFR Part 75, section 75.20 and Appendices A and B, except that each SO,-

30 diluent CEMS shall meet the relative accuracy requirements for a NO,-diluent CEMS (lb/mmBtu).

31 (3) a continuous fuel flow meter shall comply with certification requirements in section 2.1.5 of

32 appendix D of 40 CFR Part 75.

33 D. Quality assurance/quality control requirements

34 (1) A quality assurance and quality control (QAlQc) plan shall be developed and implemented for

35 each CEMS for SO, and flow or the SO,-diluent CEMS in compliance with Sections I, 1.1, and 1.2 of appendix B

36 of 40 CFR Part 75.

37 (2) A quality assurance and quality control plan shall be developed and implemented for each

38 continuous fuel flow meter and fuel sampling and analysis in compliance with Sections I, 1.1, and 1.3 appendix B of

39 40 CFR Part 75. The owner or operator shall meet the requirements in section 2.1.6 of appendix D to 40 CFR Part

40 75, and may use the procedures set forth in section 2.1.7 ofthat appendix.

41 (3) A quality assurance and quality control plan shall be developed and implemented for each

42 CFGMS in compliance with Sections I and 1.1 of appendix B to 40 CFR Part 75, and the following:

43 (a) perform a daily calibration error test of each CFGMS at two gas concentrations, one low

44 level and one high level. Calculate the calibration error as described in appendix A to 40 CFR Part 75. An out of

45 control period occurs whenever the error is greater than 5.0% ofthe span value.

46 (b) in addition to the daily calibration error test, an additional calibration error test shall be

47 performed whenever a daily calibration error test is failed, whenever a monitoring system is returned to service

48 following repairs or corrective actions that may affect the monitor measurements, and after making manual

49 calibration adjustments.

50 (c) perform a linearity test once every operating quarter. Calculate the linearity as described in

51 appendix A to 40 CFR Part 75. An out of control period occurs whenever the linearity error is greater than 5.0

52 percent of a reference value, and the absolute value of the difference between average monitor response values and a

53 reference value is greater than 5.0 ppm.

54 (d) perform a relative accuracy test audit once every four operating quarters. Calculate the

55 relative accuracy as described in appendix A to 40 CFR Part 75. An out of control period occurs whenever the

56 relative accuracy is greater than 20.0% of the mean value ofthe reference method measurements.

20.11.46 NMAC Page 24 Public Review Draft - October 5, 2003
I (e) using the results ofthe relative accuracy test audit, conduct a bias test in accordance with

2 appendix A to 40 CFR Part 75, and calculate and apply a bias adjustment factor ifrequired.

3 E. Missing data procedures

4 (1) For any period in which valid data arc not being recorded by an SO, CEMS or flow CEMS

5 specified in 20.11.46.21 NMAC, missing or invalid data shall be replaced with substitute data in accordance with the

6 requirements in Subpart D of 40 CFR Part 75.

7 (2) For any period in which valid data are not being recorded by an SO,-diluent CEMS specified in

8 20.11.46.21 NMAC, missing or invalid data shall be replaced with substitute data on a rate basis (lb/mmBtu) in

9 accordance with the requirements for So, monitors in Subpart D of 40 CFR Part 75.

10 (3) For any period in which valid data are not being recorded by a continuous fuel flow meter or for

II fuel gas GCV sampling and analysis specified in 20.11.46.21 NMAC, missing or invalid data shall be replaced with

12 substitute data in accordance with missing data requirements in Section 2.4 of appendix D to 40 CFR Part 75.

13 (4) For any period in which valid data arc not being recorded by the CFGMS specified in 20.11.46.21

14 NMAC, hourly missing or invalid data shall be replaced with substitute data in accordance with the missing data

15 requirements for units perfonning hourly gaseous fuel sulfur sampling in Section 2.4 of appendix D to 40 CFR Part

16 75.

17 F. Monitoring plan and reporting requirements: In addition to the general monitoring plan and

18 reporting requirements of20.11.46.16 NMAC, the owner or operator shall meet the following additional

19 requirements:

20 (1) The monitoring plan shall identify each group of units that is monitored by a single monitoring

21 system under 20.11.46.21 NMAC, and the plan shall designate an identifier for the group of units for emissions

22 reporting purposes. For purpose ofsubmitting emissions reports, no apportionment of emissions to the individual

23 units within the group is required.

24 (2) Ifthe provisions of Paragraph (2) or Paragraph (3) of Subsection B of 20.11.46.21 NMAC arc

25 used, provide documentation and an explanation to demonstrate that the S02 emission rate from the monitored unit

26 is representative ofthe rate from non-monitored units.

27 [12/31103]

28

29 20.11.46.22 PREDICTIVE FLOW MONITORING SYSTEMS FOR KILNS WITH POSITIVE

30 PRESSURE FABRIC FILTER:

31 A. Applicability: The provisions ofthis protocol arc applicable to cement kilns or lime kilns that

32 (1) arc controlled by a positive pressure fabric filter;

33 (2) combust only a single fuel, no fuel blends; and

34 (3) have operating conditions upstream ofthe fabric filter that the WEB source documents would

35 reasonably prevent reliable flow monitor measurements. This protocol docs not modify the SO, monitoring

36 requirements in 20.11.46.16 NMAC.

37 B. Monitoring Requirements

38 (1) A cement or lime kiln with a positive pressure fabric filter shall use a predictive flow monitoring

39 system (PFMS) to detennine the hourly kiln exhaust gas flow.

40 (2) A PFMS is the total equipment necessary for the detennination of exhaust gas flow using process

41 or control device operating parameter measurements and a conversion equation, a graph, or computer program to

42 produce results in cubic feet per hour.

43 (3) The PFMS shall meet the following perfonnance specifications:

44 (a) Sensors readings and conversion ofsensor data to flow in cubic feet per hour must be

45 automated.

46 (b) The PFMS must allow for the automatic or manual detennination offailed monitors. At a

47 minimum a daily detennination must be perfonned.

48 (c) The PFMS shall have provisions to check the calibration error of each parameter that is

49 individually measured. The owner or operator shall propose appropriate perfonnance specifications in the initial

50 monitoring plan for all parameters used in the PFMS comparable to the degree of accuracy required for other

51 monitoring systems used to comply with 20.11.46 NMAC. The parameters shall be tested at two levels, low: 0 to

52 20% of full scale, and high: 50 to 100% offull scale. The reference value need not be certified.

53 (d) The relative accuracy ofthe PFMS must be 10.0% ofthe reference method average value,

54 and include a bias test in accordance with Paragraph (3) of Subsection D of 20.11.46.22 NMAC.

55 C. Certification requirements: The PFMS is subject to initial certification testing. The source

56 owner or operator shall:

20.11.46 NMAC Page 25 Public Review Draft - October 5, 2003
I (I) Demonstrate the ability ofthe PFMS to identify automatically or manually a failed monitor;

2 (2) Provide evidence of calibration testing of all monitoring equipment. Any tests conducted within

3 the previous 12 months of operation that are consistent with the QAlQC plan for the PFMS are acceptable for initial

4 certification purposes; and

5 (3) Perfonn an relative accuracy test audit and accompanying bias test once every four operating

6 quarters. Calculate the relative accuracy (and bias adjustment factor) as described in appendix A to 40 CFR Part 75.

7 An out of control period occurs whenever the flow relative accuracy is greater than 10.0% ofthe mean value ofthe

8 reference method.

9 D. Quality assurance and quality control requirements: A quality assurance and quality control

10 plan shall be developed and implemented for each PFMS in compliance with Sections I and 1.1 of appendix B of40

II CFR Part 75, and the following:

12 (I) perfonn a daily monitor failure check;

13 (2) perfonn calibration tests of all monitors for each parameter included in the PFMS. At a minimum,

14 calibrations shall be conducted prior to each relative accuracy test audit; and

15 (3) perfonn a relative accuracy test audit and accompanying bias test once every four operating

16 quarters. Calculate the relative accuracy (and bias adjustment factor) as described in 20.11.46.21 NMAC and 40

17 CFR Part 75. An out of control period occurs whenever the flow relative accuracy is greater than 10.0% ofthe mean

18 value ofthe reference method.

19 E. Missing data: For any period in which valid data are not being recorded by the PFMS specified

20 in 20.11.46.22 NMAC, hourly missing or invalid data shall be replaced with substitute data in accordance with the

21 flow monitor missing data requirements for non-load based units in Subpart D of 40 CFR Part 75.

22 F. Monitoring plan requirements: In addition to the general monitoring plan requirements of

23 20.11.46.16 NMAC, the owner or operator shall meet the following additional requirements:

24 (I) The monitoring plan shall document the reasons why stack flow measurements upstream ofthe

25 fabric filter are unlikely to provide reliable flow measurements over time.

26 (2) The initial monitoring plan shall explain the relationship of the proposed parameters and stack

27 flow, and discuss other parameters considered and the reasons for not using those parameters in the PFMS. The

28 Department may require that the subsequent monitoring plan include additional explanation and documentation for

29 the reasonableness ofthe proposed PFMS.

30 [12/31/03]

31

32

33 20.11.46.23 SAVINGS CLAUSE: Any amendment to Sulfur Dioxide Emissions Inventory Requirements;

34 Western Backstop Sulfur Dioxide Trading Program, 20.11.46 NMAC, which is filed with the State Records Center

35 and Archives shall not affect actions pending for violation of a statute, ordinance, Part, or pennit. Prosecution for a

36 violation of a prior statute, ordinance, Part or pennit shall be governed and prosecuted under the statute, ordinance,

37 Part or pennit wording in effect at the time the violation was committed.

38 [12/31/03]

39

40 20.11.20.24 SEVERABILITY: If any section, subsection, sentence, phrase, clause or wording ofthis Part or

41 the federal standards incorporated herein is for any reason held to be unconstitutional or otherwise invalid by any

42 court or the EPA, the decision shall not affect the validity ofremaining portions ofthis Part.

43 [12/31/03]

44

20.11.46 NMAC Page 26 Public Review Draft - October 5,2003
EXHIBIT

I a.

Thursday,

June 5,2003

Part II

Environmental

Protection Agency

40 CFR Part 51

Revisions to Regional Haze Rule To

Incorporate Sulfur Dioxide Milestones

and Backstop Emissions Trading Program

for Nine Western States and Eligible

Indian Tribes Within That Geographic

Area; Final Rule
33764 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51 

[FRL–7504–4] 

Revisions to Regional Haze Rule To 

Incorporate Sulfur Dioxide Milestones 

and Backstop Emissions Trading 

Program for Nine Western States and 

Eligible Indian Tribes Within That 

Geographic Area

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: The purpose of this rule is to 

revise EPA’s regional haze rule to 

incorporate certain provisions for 

Western States and eligible Indian 

Tribes. 

The Western Regional Air Partnership 

(WRAP) submitted an Annex to the 

1996 report of the Grand Canyon 

Visibility Transport Commission 

(GCVTC) to EPA on September 29, 2000. 

This submittal was required under the 

regional haze rule in order for nine 

Western States (and Indian Tribes 

within the same geographic region) to 

have the option of submitting plans 

implementing the GCVTC 

recommendations. The Annex contains 

recommendations for implementing the 

regional haze rule in nine Western 

States, including a set of recommended 

regional emissions milestones. The 

milestones address, for the time period 

between 2003 and 2018, emissions of 

sulfur dioxide (SO2), a key precursor to 

the formation of fine particles and 

regional haze.

DATES: The regulatory amendments 

announced herein take effect on August 

4, 2003.

ADDRESSES: The EPA has established an 

official public docket for this action 

under Docket No. OAR–2002–0076. The 

official public docket is the collection of 

materials that is available for public 

viewing at the Air Docket in the EPA 

Docket Center, Room B102, 1301 

Constitution Ave., NW., Washington, 

DC. The EPA Docket Center Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Tim 

Smith (telephone 919–541–4718), 

Environmental Protection Agency, Air 

Quality Strategies and Standards 

Division, C504–02, Research Triangle 

Park, NC 27711 or Thomas Webb 

(telephone 415–947-4139), EPA Region 

9 (AIR–5), 75 Hawthorne Street, San 

Francisco, CA 94105. Internet addresses: 

smith.tim@epa.gov and 

webb.thomas@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. General Information 

A. Regulated Entities 

B. How can I get copies of this document 

and other related information? 

II. Overview of the Stationary Source SO2

Reduction Program Covered by this Rule 

A. What is the regional haze rule? 

B. What are the special provisions for 

Western States and eligible Indian Tribes 

in 40 CFR 51.309 of the regional haze 

rule? 

C. What was required to be included in the 

Annex to the GCVTC report? 

D. What are the next steps in implementing 

this program? 

E. What topics were covered in EPA’s May 

6, 2002 proposal? 

F. What public comments were received on 

the proposal? 

G. What topics are covered in this 

preamble? 

III. Discussion of Issues Raised in Comments 

on the May 6, 2002 Proposal 

A. General and Overarching Issues 

B. Milestones 

C. Annual Process for Determining 

Whether a Trading Program is Triggered 

D. Requirements for the Backstop Trading 

Program 

E. Provisions Related to Time Period After 

2018 

F. Provisions Related to Indian Tribes 

IV. 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 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

I. General Information 

A. Regulated Entities 

Entities potentially regulated by this 

action are nine States in the Western 

United States (Arizona, California, 

Colorado, Idaho, Nevada, New Mexico, 

Oregon, Utah and Wyoming) and Indian 

Tribes within that same geographic area. 

This action, and an earlier action taken 

by EPA in 1999, provides these States 

and Tribes with an optional program to 

protect visibility in Federally protected 

scenic areas. The portion of the program 

addressed by today’s action is a program 

for stationary sources of SO2, involving 

a set of regional annual emissions 

milestones for the years between 2003 

and 2018 that would apply to the total 

SO2 emissions from all stationary 

sources emitting more than 100 tons of 

SO2 per year. Examples of potentially 

affected sources currently emitting at 

this level are listed in the following 

table. 

Examples of Regulated Entities 

Coal-fired power plants 

Industrial boilers 

Petroleum refineries 

Natural gas processing facilities with 

sulfur recovery plants 

Cement kilns 

Paper mills 

B. How Can I Get Copies of This 

Document and Other Related 

Information? 

1. Docket. The EPA has established an 

official public docket for this action 

under Docket No. OAR–2002–0076. The 

official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at the Air Docket in 

the EPA Docket Center, Room B102, 

1301 Constitution Ave., NW., 

Washington, DC. The EPA Docket 

Center 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 

Reading Room is (202) 566–1744, and 

the telephone number for the Air Docket 

is (202) 566–1742. A reasonable fee may 

be charged for copying. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. An 

electronic version of the public docket 

is available through EPA’s electronic 

public docket and comment system, 

EPA Dockets. You may use EPA Dockets 

at http://www.epa.gov/edocket/ to view 

public comments, access the index 

listing of the contents of the official 

public docket, and to access those 

documents in the public docket that are 

available electronically. Although not 

all docket materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility 

identified above. Once in the system, 

select ‘‘search,’’ then key in the 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33765

1Recommendations for Improving Western 

Vistas. GCVTC, June 10, 1996.

2 Indian Tribes are given the flexibility under EPA 

regulations to submit implementation plans and opt 

into the program after the 2003 deadline.

appropriate docket identification 

number. 

II. Overview of the Stationary Source 

SO2 Reduction Program Covered by 

This Rule 

The purpose of this rule is to revise 

40 CFR 51.309 of the regional haze rule 

to incorporate additional provisions to 

address visibility impairment in 16 

Class I areas on the Colorado Plateau. 

A. What Is the Regional Haze Rule? 

Section 169A of the CAA establishes 

a national goal for protecting visibility 

in Federally-protected scenic areas. 

These ‘‘Class I’’ areas include national 

parks and wilderness areas. The 

national visibility goal is to remedy 

existing impairment and prevent future 

impairment in these Class I areas, 

consistent with the requirements of 

sections 169A and 169B of the CAA. 

Regional haze is a type of visibility 

impairment caused by air pollutants 

emitted by numerous sources across a 

broad region. The EPA uses the term 

regional haze to distinguish this type of 

visibility problem from those which are 

more local in nature. In 1999, EPA 

issued a regional haze rule requiring 

States to develop implementation plans 

that will make ‘‘reasonable progress’’

toward the national visibility goal, (64 

FR 35714, July 1, 1999). The first State 

plans for regional haze are due between 

2003 and 2008. The regional haze rule 

provisions appear at 40 CFR 51.308 and 

40 CFR 51.309. 

B. What Are the Special Provisions for 

Western States and Eligible Indian 

Tribes in 40 CFR 51.309 of the Regional 

Haze Rule?

The regional haze rule at 40 CFR 

51.308 sets forth the requirements for 

State implementation plans (SIPs) under 

the regional haze program. The rule 

requires State plans to include visibility 

progress goals for each Class I area, as 

well as emissions reductions strategies 

and other measures needed to meet 

these goals. The rule also provides an 

optional approach, described in 40 CFR 

51.309, that may be followed by the 

nine Western States (Arizona, 

California, Colorado, Idaho, Nevada, 

New Mexico, Oregon, Utah, and 

Wyoming) that comprise the transport 

region analyzed by the GCVTC during 

the 1990’s. This optional approach is 

also available to eligible Indian Tribes 

within this geographic region. The 

regulatory provisions at 40 CFR 51.309 

are based on the final report issued by 

the GCVTC in 1996,1 which included a 

number of recommended emissions 

reductions strategies designed to 

improve visibility in the 16 Class I areas 

on the Colorado Plateau.

In developing the regional haze rule, 

EPA received a number of comments on 

the proposed rule encouraging the 

Agency to recognize explicitly the work 

of the GCVTC. In addition, in June 1998, 

Governor Leavitt of Utah provided 

comments to EPA on behalf of the 

Western Governors Association (WGA), 

further emphasizing the commitment of 

Western States to implementing the 

GCVTC recommendations. The WGA’s 

comments also suggested the translation 

of the GCVTC’s recommendations into 

specific regulatory language. The EPA 

issued a Notice of Availability during 

the fall of 1998 requesting further 

comment on the WGA proposal and 

regulatory language based upon the 

WGA’s recommendations. Based on the 

comments received on this Federal 

Register notice, EPA developed the 

provisions set forth in 40 CFR 51.309 

that allow the nine Transport Region 

States and eligible Tribes within that 

geographic area to implement many of 

the GCVTC recommendations within 

the framework of the national regional 

haze rule. 

The provisions in 40 CFR 51.309 

comprise a comprehensive long-term 

strategy for addressing sources that 

contribute to visibility impairment 

within this geographic region. The 

strategy addresses the time period 

between the year 2003,2 when the 

implementation plans are due, and the 

year 2018. The provisions address 

emissions from stationary sources, 

mobile sources, and area sources such 

as emissions from fires and windblown 

dust.

One element of the GCVTC’s strategy 

to address regional haze is a program to 

reduce stationary source emissions of 

SO2. This program calls for setting a 

series of declining caps on emissions of 

SO2. These declining caps on emissions 

are referred to as emissions milestones 

and provide for a reduction in SO2

emissions over time. In designing this 

program, the GCVTC intended for these 

milestones to be reduced through 

voluntary measures, but also included 

provisions for an enforceable marketbased program that would serve as a 

‘‘backstop’’ if voluntary measures did 

not succeed. At the time the regional 

haze rule was published, however, it 

was broadly recognized that the specific 

emission milestones, and the details of 

how both the voluntary and enforceable 

phases of the program would be 

implemented, were necessary elements 

of a regulatory program. Accordingly, 

the regional haze rule, in 40 CFR 

51.309(f), required the development of 

an ‘‘Annex’’ to the report of the GCVTC 

that would fill in these details. The 

regional haze rule provided that the 

option afforded by 40 CFR 51.309 would 

only be available if an Annex, 

addressing the specific requirements of 

40 CFR 51.309(f), were submitted to 

EPA by October 1, 2000. The EPA 

required the submission of an Annex by 

this date to ensure that EPA would be 

able to act on it before the December 31, 

2003 deadline for SIPs under 40 CFR 

51.309(c). 

C. What Was Required To Be Included 

in the Annex to the GCVTC Report? 

The regional haze rule required the 

GCVTC (or a regional planning body 

formed to implement the Commission 

recommendations, such as the Western 

Regional Air Partnership (WRAP) to 

provide recommendations to fill in the 

details for two main aspects of the 

program:

—Emissions reductions milestones for 

stationary source SO2 emissions for the 

years 2003, 2008, 2013, and 2018. The 

milestones must provide for ‘‘steady and 

continuing emissions reductions’’ for the 

2003–2018 time period. In addition, the 

milestones must ensure greater reasonable 

progress than would be achieved by 

application of best available retrofit 

technology (BART) pursuant to 

§51.308(e)(2). 

—Documentation setting forth the details for 

how a market trading program would be 

implemented in the event that voluntary 

measures are not sufficient to meet the 

required milestones. This documentation 

must include model rules, memoranda of 

understanding, and other documentation 

describing in detail how emissions 

reductions progress will be monitored, 

what conditions will result in the 

activation of the market trading program, 

how allocations will be performed, and 

how the program will operate.

The EPA received the Annex from the 

WRAP in a timely manner, on 

September 29, 2000. The EPA 

recognizes the significant amount of 

work that was devoted to developing the 

Annex and we commend the WRAP 

participants for their efforts. Under 40 

CFR 51.309(f)(3), if EPA finds that the 

Annex meets the requirements of the 

regional haze rule, EPA committed to 

revise the regional haze rule based on 

the Annex to incorporate provisions 

requiring compliance with the 

milestones and backstop trading 

program. Along with the existing 

elements of 40 CFR 51.309, these new 

33766 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

3 June 7, 2002 letter from Lydia Wegman, EPA, to 

Rick Sprott and Julie Simpson, co-chairs, WRAP 

Initiatives Oversight Committee.

provisions would also be addressed in 

the 2003 SIPs by the 9 Western States. 

D. What Are the Next Steps in 

Implementing This Program? 

Today’s rule modifies the 

requirements in 40 CFR 51.309 of the 

regional haze rule. As a result, 40 CFR 

51.309 provides a complete regulatory 

framework to be used by Western States 

and Tribes in developing regional haze 

implementation plans. The EPA will 

continue to work closely with the States 

and Tribes to support their efforts to 

develop plans that meet the applicable 

requirements of the regional haze rule. 

Once State and tribal plans that meet 

the applicable requirements of the 

regional haze rule are reviewed and 

approved by EPA, they will be federally 

enforceable. 

E. What Topics Were Covered in EPA’s 

May 6, 2002 Proposal? 

The May 6, 2002 proposal addressed 

the following topics: 

• The proposed regional SO2

milestones and WRAP’s determination 

that the milestones meet the criteria for 

approval in the regional haze rule. The 

EPA reviewed the WRAP’s methodology 

for developing specific milestones for 

SO2 for the years between 2003 and 

2018. The EPA proposed to approve the 

milestones as satisfying the 

requirements of the regional haze rule. 

The EPA noted its conclusion that the 

milestones provide for ‘‘steady and 

continuing emissions reductions.’’ The 

EPA also proposed to conclude that the 

milestones provide for ‘‘greater 

reasonable progress’’ than the BART 

emission limits that would otherwise be 

required by the regional haze rule. 

• Ways in which the milestones may 

be adjusted in the future. The proposal 

discusses the limited circumstances 

under which the milestones may be 

adjusted in the future and the proposed 

administrative process for making those 

changes.

• The stationary sources of SO2 that 

are included in the program. The 

proposal discussed the stationary 

sources of SO2 that would be required 

to participate in the program, and whose 

cumulative emissions would be 

compared to the milestones. 

• The annual process for determining 

whether a milestone is exceeded, 

thereby triggering the trading program. 

The proposal described the steps to be 

followed in evaluating emissions data at 

the State, tribal and regional levels. It 

also described a mechanism by which 

States and Tribes can activate the 

trading program in 2013 if evidence 

indicates that the 2018 milestone will 

not be reached without such action. 

• Key trading program elements that 

are required in SIPs and tribal 

implementation plans (TIPs). The 

preamble discussed proposed 

requirements regarding the backstop 

trading program, and discussed trading 

program elements such as: Issuance of 

and compliance with allowances; 

emissions quantification protocols and 

tracking system; the annual 

reconciliation process; and penalty 

provisions. 

• Status of the program after 2018. 

The proposal discussed EPA’s 

understanding of what happens to the 

milestones and backstop trading 

program at the completion of the first 

implementation period, in 2018.

The preamble to the May 6, 2002 

proposal described each of these 

programmatic areas in detail, including 

EPA’s review of the relevant portion of 

the WRAP submittal. 

F. What Public Comments Were 

Received on the Proposal? 

On May 6, 2002 (67 FR 30418), the 

proposed rule was published in the 

Federal Register. The EPA requested 

written comments on the proposal and 

held a public hearing. The public 

hearing was held in Phoenix, Arizona 

on June 4, 2002. A transcript for this 

public hearing is available in the public 

docket for the regulation (Docket OAR–

2002–0076). The EPA received eleven 

written comments on the package, 

primarily from Western stakeholder 

groups. 

G. What Topics Are Covered in This 

Preamble? 

The EPA has made a number of 

changes to the proposed rule in 

response to the comments we received. 

The comments on the proposal were 

limited to a relatively small subset of 

the broad range of topics discussed in 

detail in the proposal. Accordingly, EPA 

believes that it is not necessary to repeat 

the comprehensive discussion 

contained in the preamble to the 

proposal. Instead, EPA has limited the 

discussion in this preamble to issues 

raised by commenters, and changes 

made to the final rule based on those 

issues. 

III. Discussion of Issues Raised in 

Comments on the May 6, 2002 Proposal 

A. General and Overarching Issues 

1. Impact of May 24, 2002 American 

Corn Growers Decision 

On May 24, 2002, the U.S. Court of 

Appeals for the D.C. Circuit issued a 

decision in American Corn Growers et 

al. v. EPA, 291 F.3d 1 (D.C. Cir., 2002) 

that invalidated part of EPA’s regional 

haze rule. Because the WRAP Annex 

would be incorporated into the regional 

haze rule, a number of commenters 

asked whether the court’s decision 

would have an impact on this 

rulemaking regarding the Annex. Some 

commenters recommended that EPA not 

proceed with the final rule until EPA 

has addressed the issues raised by the 

court regarding the regional haze rule in 

general. In contrast, a number of 

commenters agreed with the position 

that EPA took in a June 7 letter 3 that the 

Annex is fully consistent with the 

court’s ruling. A number of commenters 

requested that EPA clarify its position 

and rationale on this issue. The EPA 

continues to believe that the decision in 

American Corn Growers does not in any 

way affect the WRAP Annex or EPA’s 

ability to incorporate the Annex into its 

regional haze rule.

In order to better understand EPA’s 

conclusion regarding the Annex, EPA 

believes it is helpful to review the 

history of the GCVTC and the WRAP. In 

its 1996 report to EPA, the GCVTC 

recommended a wide range of control 

strategies to address regional haze, 

including strategies to reduce emissions 

of SO2 from large stationary sources. 

Thus, the GCVTC specifically 

recognized that stationary sources 

would need to be an important part of 

an overall visibility strategy and, in 

particular, that controlling sulfates from 

these sources was a key strategy for 

addressing haze. As part of this overall 

strategy, the GCVTC also concluded that 

interim targets that provided for ‘‘steady 

and continuing emission reductions’’

over the entirety of the planning period 

might also be needed. 

In 1997, EPA proposed the regional 

haze rule, and in 1998, the WGA 

submitted comments to EPA requesting 

the addition of specific language to the 

rule to address the recommendations of 

the GCVTC. In these comments, the 

WGA reemphasized the commitment of 

the Western governors to the GCVTC 

recommendations. Following public 

notice and an opportunity to comment 

on the WGA’s proposal, EPA issued the 

final regional haze rule (64 FR 35714, 

July 1, 1999). In 40 CFR 51.309 of the 

rule, EPA established a specific set of 

SIP requirements for the States and 

Tribes that participated in the GCVTC. 

As EPA noted in the preamble to the 

rule, these requirements acknowledged 

and gave effect to the substantial body 

of work already completed by the 

GCVTC and the WRAP. 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33767

One of the requirements in 40 CFR 

51.309 addressed the GCVTC’s 

recommendation that the States 

establish a cap on regional emissions of 

SO2 from stationary sources. Under 40 

CFR 51.309(f) of the regional haze rule, 

the WRAP was required to submit an 

annex to the GCVTC Report that would 

contain specific emission reduction 

milestones for the years 2003, 2008, 

2013, and 2018. This provision 

explicitly references the 

recommendations of the GCVTC for 

‘‘steady and continuing emissions 

reductions * * * consistent with the 

Commission’s definition of reasonable 

progress’’ and its goal of 50 to 70 

percent reduction in emissions of SO2

between 1990 and 2040. In the preamble 

to the final regional haze rule, EPA 

explained that the WRAP would have to 

take into account four specific factors in 

setting these milestones. The preamble 

specifically noted that ‘‘[t]he first factor 

affecting the selection of interim 

milestones is the GCVTC’s definition of 

reasonable progress.’’ (64 FR 35756). 

The other factors listed in the rule are: 

(1) The ultimate target in 2040 of a 50 

to 70 percent reduction in emissions of 

SO2 from stationary sources; (2) the 

requirement that the emissions cap 

provide for greater progress than would 

be achieved through source-specific 

BART requirements; and (3) the timing 

of progress assessment and the 

identification of mechanisms to address 

the cases where emissions exceed 

milestones. 

In the regional haze rule, EPA 

concluded that the specific SIP 

requirements in 40 CFR 51.309 provide 

for reasonable progress toward the 

national visibility goal. The WRAP’s 

plan for capping SO2 emissions from 

stationary sources is a part of the 

Western States’ and Tribes’ long-term 

strategy for achieving reasonable 

progress. As described above, the SO2

program grew out of the GCVTC’s 

recommendations for measures to 

remedy adverse impacts on visibility. 

Some commenters expressed concerns 

that the WRAP’s program for controlling 

SO2 emissions in the West, as further 

defined by the Annex to the GCVTC’s 

Report, is a ‘‘BART provision’’ subject to 

the American Corn Growers court 

remand. For several reasons, EPA 

believes that this is not the case.

Under the CAA, the BART provisions 

require the installation of control 

technology on specific sources that were 

built between 1962 and 1977. Nothing 

in the Annex requires specific controls 

on any individual source. A key 

component of the Annex’s SO2 program 

is the goal that all reductions called for 

by the program remain voluntary. If the 

reductions are achieved through 

voluntary measures, then there will be 

no requirements of any kind. Even if the 

SO2 milestones are not achieved 

through voluntary actions, the Annex 

does not provide for source-specific 

controls. Rather, the failure to achieve 

these milestones would trigger a 

‘‘backstop’’ emissions trading program. 

Such a program, by its very nature, does 

not dictate that any particular source 

install control technology or otherwise 

reduce its emissions. 

The EPA also notes that the Annex 

covers all stationary sources that emit 

more than 100 tons per year of SO2—not 

just sources built between 1962 and 

1977—and thus goes well beyond the 

scope of the statutory BART provisions. 

For this reason (and others noted 

above), EPA believes that the SO2

program is a component of the WRAP’s 

strategy for ensuring reasonable 

progress, an aspect of the regional haze 

program that was not addressed by the 

American Corn Growers decision. 

The EPA approved the WRAP’s longterm strategy for addressing visibility 

consistent with the broad discretion 

afforded States by section 169A and title 

I of the CAA in developing strategies to 

meet reasonable progress goals and 

national standards. See Union Electric 

Co. v. EPA, 427 U.S. 246 (1976); Train

v. NRDC, 421 U.S. 60 (1975). The SO2

program, which caps emissions of SO2

from all large stationary sources, reflects 

the WRAP States’ and Tribes’ judgement 

as to one appropriate means for 

addressing haze and ensuring 

reasonable progress. The decision to 

limit emissions from this category of 

sources is well within the discretion of 

the States and Tribes. The court’s 

decision in American Corn Growers, 

which addresses only the BART 

provisions, does not in any way limit 

the general authority of the States to 

choose appropriate control measures to 

ensure reasonable progress. Any 

suggestion that the decision requires 

States to undertake a source specific 

analysis of a source’s contribution to the 

problem of regional haze before the 

State can subject a source to regulation 

would go far beyond the actual holding 

in the case. 

As discussed above, 40 CFR 51.309 

does not require participating States to 

assess and impose BART on individual 

sources. Best available retrofit 

technology is only relevant as one of 

four factors that the WRAP must 

consider in establishing the appropriate 

emission reduction milestones for SO2—

i.e., the level of the cap. The regional 

haze rule requires that the milestones in 

the Annex to the GCVTC Report ‘‘must 

be shown to provide for greater 

reasonable progress than would be 

achieved by application of best available 

retrofit technology (BART) pursuant to 

§ 51.308(e)(2).’’ 40 CFR 51.309(f)(1)(i). 

This is not a requirement for BART. The 

requirement that the milestones 

‘‘provide for greater reasonable 

progress’’ than BART is based on the 

decision by EPA to provide States with 

the flexibility to adopt alternative 

measures in lieu of the BART 

requirements set forth in statute so long 

as these alternative measures were 

‘‘better than BART.’’ See 40 CFR 

51.308(e)(2). In short, the SO2 program 

described in the regional haze rule, as 

further defined by the Annex, does not 

impose controls on specific sources but 

rather ensures that greater reasonable 

progress is made than would be through 

installation of source specific controls 

on the BART sources. The regional haze 

rule accordingly authorizes States to 

achieve improvements in visibility 

through the most cost-effective 

measures available. 

The American Corn Growers court 

decision did not address the provisions 

in the regional haze rule allowing States 

to adopt a trading program or other 

alternative measures in place of source 

specific control measures for BART 

sources. The EPA finds nothing in the 

court’s decision that would invalidate 

the trading program alternative to 

BART, as provided for in 40 CFR 

51.308(e)(2). In the preamble to the 

regional haze rule, EPA sets forth the 

basis for its decision to allow States this 

flexibility and describes the process for 

States to make a showing that the 

alternative measures provide for greater 

reasonable progress. Significantly, 

nothing in the D.C. Circuit’s opinion 

suggests that such an alternative is in 

conflict with the requirements of the 

visibility provisions of the CAA. An 

approach that allows States to adopt 

alternative measures in lieu of BART 

fully comports with the court’s view of 

the States’ broad authority in this area. 

Accordingly, the Annex meets the 

requirements set out in 40 CFR 

51.309(f), and EPA believes that it may 

approve the proposed revisions to the 

regional haze rule incorporating the 

emission reduction milestones and 

other measures set forth in the Annex. 

2. Whether the December 31, 2003 SIP 

Deadline Should Be Extended 

Under 40 CFR 51.309 of the regional 

haze rule, SIPs for the optional program 

for the nine Western States are due by 

December 31, 2003. The EPA received a 

number of comments on the proposed 

rule with respect to this deadline. Four 

commenters, including the State of 

Colorado and three industry trade 

33768 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

groups, requested that EPA extend the 

deadline for SIPs under 40 CFR 51.309. 

One commenter, representing an 

environmental organization, 

recommended that this deadline should 

not change. 

The primary argument of those 

recommending an extension of the 

December 31, 2003 deadline, is that the 

American Corn Growers decision creates 

additional uncertainty for States 

deciding whether to submit regional 

haze SIPs under 40 CFR 51.309 or 40 

CFR 51.308. Some commenters 

requested that EPA extend the deadline 

by the amount of time it takes to resolve 

the remanded portions of the regional 

haze rule. The environmental group 

commenter opposed to the extension 

stated that there is no legal or policy 

basis for an extension because the 

deadline is required by the rule. In 

addition, this commenter noted that 

States have had several years to prepare 

SIPs under 40 CFR 51.309, and that the 

market-based alternative to BART is 

unaffected by the court decision. 

Finally, this commenter believed that 

delays in the SIP submittals could 

undermine EPA’s finding that the 40 

CFR 51.309 program constitutes greater 

reasonable progress than BART.

In the final rule, EPA retains the 

December 31, 2003 deadline for a 

number of reasons. First, as noted 

above, EPA does not believe that the 

American Corn Growers decision affects 

the WRAP States’ ability to move 

forward in implementing 40 CFR 

51.309. While the court decision may 

affect a State’s decision on whether to 

pursue the optional program under 40 

CFR 51.309, EPA does not believe that 

this is an adequate justification for 

delaying the program. Second, EPA 

believes that the 2003 deadline is a 

fundamental element of the overall 

optional strategy provided by 40 CFR 

51.309. The strategy was supportable 

under the regional haze rule in large 

part because it was an early strategy that 

would be in place well before SIPs 

under 40 CFR 51.308. The fact that it 

was received early and contained 

comprehensive strategies was an 

important part of the rationale for its 

acceptance. The EPA believes that the 

longer the strategy is delayed in its 

implementation, the less valid this 

rationale becomes. 

3. Procedural Issues 

One commenter stated that EPA 

cannot approve the Annex because of 

procedural flaws related to 40 CFR 

51.309(f)(1) of the regional haze rule. 

The commenter asserted that EPA’s 

rulemaking to approve the Annex is 

procedurally flawed because EPA did 

not publish the Annex upon its receipt. 

Additionally, the commenter notes that 

EPA did not amend the regional haze 

rule within 1 year after receipt of the 

Annex. 

The EPA disagrees with the assertions 

that this rulemaking is procedurally 

flawed. The EPA published a Notice of 

Availability in the Federal Register for 

the Annex on November 15, 2000 (65 FR 

68999), indicating where the Annex 

could be found on EPA’s Web site. The 

commenter is correct that EPA 

established a deadline for itself of 1 year 

for the Agency to incorporate the 

provisions of the Annex if EPA found 

that the Annex met the requirements of 

the rule. Although the statement that 

EPA ‘‘will act’’ within 1 year signaled 

EPA’s intentions to act within that time 

period, nothing in the regional haze rule 

precludes EPA from acting after this 

self-imposed deadline. In particular, 

action within the 1-year deadline 

should not be interpreted as a 

prerequisite for approving the Annex or 

for incorporating the Annex into the 

regional haze rule. It is clear from the 

commenter’s statements, however, that 

the statement that EPA will act within 

1 year has created confusion as to the 

meaning of the provision. The EPA is 

clarifying this provision by removing 

the phrase ‘‘1 year’’ from section 

309(f)(3). 

B. Milestones 

A central feature of the program in the 

WRAP annex, and in EPA’s proposed 

rule, is a set of emissions milestones for 

SO2 from stationary sources for the time 

period between 2003 and 2018. In the 

proposed rule, EPA included the Annex 

milestones. In the final rule, EPA 

includes the same milestones as 

proposed. 

In addition, the proposed rule 

included specific language to allow for 

future adjustments to the milestones. In 

the Annex, the WRAP described a 

limited set of future circumstances that 

would necessitate adjustments to the 

milestones. For each of these 

circumstances, the Annex included a 

detailed description of how the 

milestone would be adjusted, including 

a discussion of the administrative 

process for making each adjustment. In 

the proposed rule, EPA included 

regulatory language for each adjustment, 

closely following the provisions of the 

Annex. In the final rule, EPA has made 

a few changes to the adjustments based 

upon comments received. 

In this unit of the preamble, we 

discuss comments received related to 

the milestones and the adjustments. 

1. Whether Milestones Satisfy 

Requirements in the Regional Haze Rule 

Proposed rule. In the proposal, EPA 

indicated its agreement with the 

WRAP’s conclusion that the emissions 

milestones meet the requirements of the 

CAA and the regional haze rule. The 

EPA devoted a significant portion of the 

preamble of the proposed rule to a 

discussion of its rationale for this 

proposed finding, (67 FR 30420–30426). 

In this discussion, EPA concluded that 

the WRAP’s program for SO2 was 

appropriate in lieu of source specific 

BART limits because the milestone for 

the year 2018 provided for ‘‘greater 

reasonable progress’’ in visibility 

improvement than WRAP States would 

obtain by implementing the requirement 

for source-specific BART. In addition, 

the preamble to the proposal discusses 

EPA’s finding that the milestones for the 

years between 2003 and 2017 provide 

for ‘‘steady and continuing’’ progress. 

With respect to EPA’s findings on 

BART, the preamble discussion for the 

proposed rule focused largely on the 

demonstration provided by the WRAP 

in Attachment C of the Annex. The EPA 

noted the WRAP used the following 

procedure to identify the year 2018 

milestone: 

• Developed an estimate of baseline 

SO2 emissions for the year 2018, (i.e.,

the predicted SO2 emissions in the year 

2018 in the absence of a program to 

reduce SO2 emissions); 

• Developed a list of BART-eligible 

sources in the region;

• Developed an estimate of the 

emissions reductions that BART sources 

could achieve, and 

• Selected a year 2018 milestone that 

reduces the baseline emissions by an 

amount that would achieve greater 

reasonable progress in improving 

visibility than by requiring each BARTeligible source to install BART. 

In the proposal, EPA discussed the 

data and methods relied on by the 

WRAP for each of these steps. The EPA 

agreed with the conclusion reached by 

the WRAP that the 2018 milestone 

meets the requirements of the regional 

haze rule, taking into account the 

uncertainties inherent in the 

calculations of predicted emissions in 

2018. 

Public Comments. Public comments, 

with one exception, were supportive of 

EPA’s finding that the year 2018 

milestone represented ‘‘greater 

reasonable progress’’ than BART. One 

commenter, representing the trucking 

industry, disagreed with this finding, 

citing a number of areas where it 

believed that the demonstration was 

lacking or inadequate. 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33769

The WRAP commented that EPA’s 

preamble discussion did not completely 

capture the scope and methodology of 

the year 2018 milestone decision. In 

their comments, the WRAP agreed that 

EPA had correctly described the method 

the WRAP used to determine that the 

program achieved greater reasonable 

progress than BART. However, the 

WRAP’s comments stress that while the 

milestones were informed by these 

calculations, the milestones were 

negotiated numbers reflecting a broader 

view of the backstop trading program 

and the relevant factors in the CAA. In 

addition, the WRAP notes that 

individual elements of the calculations 

do not represent a consensus position in 

isolation from the balanced package in 

the Annex. 

The commenter from the trucking 

industry was critical of EPA’s 

acceptance of the year 2018 milestones. 

The commenter noted that in the 

preamble EPA appeared to have 

concerns with: (1) How the WRAP 

identified BART-eligible sources, (2) 

how the WRAP calculated emissions 

reductions from those sources, and (3) 

the WRAP’s inclusion of the 35,000 tons 

for ‘‘headroom and uncertainty.’’ This 

commenter believed that taken overall, 

EPA should have considered the 

WRAP’s milestone for year 2018 to be 

deficient. The commenter was also 

critical of the provision for a backstop 

trading program, arguing that such a 

program would allow for emissions 

reductions far away from the Colorado 

Plateau to be substituted for more 

effective reductions at a closer distance. 

The comments, with one exception, 

supported EPA’s proposed conclusion 

that the milestones for the years 2003 

through 2017 represented ‘‘steady and 

continuing’’ progress. Comments from 

the trucking industry were critical of 

this finding. In their view, the 

milestones do not provide for steady 

and continuing progress because some 

of the early year milestones exceed year 

2000 actual emissions levels. 

Final rule. The final rule retains the 

milestones contained in the proposed 

rule. The EPA continues to believe that 

the milestones provide for ‘‘greater 

reasonable progress than BART’’ and for 

‘‘steady and continuing progress.’’ The 

EPA disagrees with comments that the 

milestones are deficient in this regard. 

The EPA agrees with stakeholders that 

it is a critical consideration that the 

WRAP’s milestones provide a ‘‘cap’’ on 

emissions which may not be exceeded. 

Any program providing for case-by-case 

controls on a specific set of sources does 

not establish such a ‘‘cap’’ for the 

region. Moreover, this cap applies to a 

population of sources that includes all 

sources in the region emitting more than 

100 tons of SO2, which is a much 

broader population than if only the 

BART-eligible sources were included. 

The EPA continues to conclude that the 

WRAP milestones are reasonable in 

light of the inherent uncertainties that 

exist in any forecast to the year 2018. 

Modeling results showed predicted 

visibility improvements equivalent to, 

or greater than, those that would result 

from a ‘‘command and control’’

scenario.

The EPA disagrees with comments 

that the milestones cannot be 

considered to provide for ‘‘steady and 

continuing’’ reductions if actual 

emissions were allowed to increase in 

the early years. As noted in the 

proposal, EPA believes that the WRAP 

appropriately used the GCVTC goal of a 

13 percent reduction in emissions 

between 1990 and 2000 as a starting 

point or frame of reference, rather than 

an estimate of actual emissions for the 

year 2000. Given that a greater than 

expected degree of reduction has 

already occurred, EPA agrees that the 

region should not be effectively 

penalized for achieving early reductions 

in emissions. 

2. Adjustments for States and Tribes 

That Choose Not To Participate 

Proposed rule. When developing the 

Annex, the WRAP understood that some 

States and Tribes may choose not to 

participate in the optional program 

provided by 40 CFR 51.309. Thus, the 

WRAP provided to EPA individual optout amounts for each State and Tribe 

and for each year from 2003 to 2018. 

These opt-out amounts represented the 

amount of emissions that would be 

deducted from the milestones for each 

State and Tribe that does not 

participate. The EPA included a table in 

the proposed rule (67 FR 30446, May 6, 

2002) that shows these opt-out amounts 

for each State and Tribe. The proposed 

rule noted, as the WRAP recommended, 

that the emissions amounts budgeted in 

this table are only for the purpose of 

determining the milestones at the 

beginning of the program if some States 

and Tribes choose not to participate. 

The EPA cautioned that the amounts 

budgeted to each State and Tribe in this 

table are not necessarily the amounts 

that will be allocated to sources within 

the relevant State’s or Tribe’s 

jurisdiction if a trading program is 

triggered. 

The proposal described the process by 

which the milestones would be adjusted 

to take into account the individual State 

and tribal opt-out amounts. For States, 

SIPs for all participating States are due 

by the December 31, 2003 deadline. 

Accordingly, EPA assumed in the 

proposal that after this deadline has 

passed it will be known which States 

are participating and which are not. 

Thus, the proposal called for SIPs to 

provide for deducting the State-specific 

amounts in Table 2 (67 FR 30446, May 

6, 2002) for ‘‘opt-out States’’ from the 

amounts in Table 1 (67 FR 30425, May 

6, 2002) at the outset of the program. For 

Tribes, the proposed rule provides 

flexibility for opting into the program 

after the 2003 SIP submission deadline. 

Under the proposal, for Tribes that have 

not opted into the program by the 2003 

deadline, the amounts in Table 2 (67 FR 

30446, May 6, 2002) would be deducted 

from the amounts in Table 1 at the 

outset of the program. For Tribes that 

opt into the program at a later date, the 

proposal required these amounts to be 

automatically added to the amounts in 

Table 1 (67 FR 30425, May 6, 2002), 

beginning with the first year after a TIP 

implementing 40 CFR 51.309 is 

approved by EPA. 

In the proposal, EPA stated that for 

the program under 40 CFR 51.309 to 

achieve the WRAP and GCVTC 

objectives, a sufficient number of States 

must participate in the program. The 

EPA proposed to defer to the WRAP’s 

judgment on the issue of how many 

States would constitute a ‘‘critical 

mass’’ for the program, and we 

requested comment on this issue. 

Public Comments. A few comments 

were received on issues related to the 

proposed opt-out amounts and 

discussion. 

Two commenters agreed with EPA’s 

clarification that the opt-out amounts 

did not necessarily represent the 

amount of allocations that a State’s or 

Tribe’s sources would receive if the 

backstop trading program were 

triggered. One commenter 

recommended that the State opt-out 

amounts should be treated as the 

amount of allocations for a given State, 

because: (1) The opt-out amounts 

represent the best estimate of emissions 

reductions for the BART-eligible sources 

in each State or Tribe, and (2) inclusion 

of the tables may create a perception 

that any State that issues fewer 

allocations than the opt-out amounts is 

treating the sources within the State 

inequitably. 

Several commenters agreed with 

EPA’s recommendation to defer 

judgments on ‘‘critical mass’’ issues to 

the WRAP. One environmental group 

commenter recommended that, in 

evaluating whether there are enough 

States and Tribes participating in 40 

CFR 51.309, EPA must thoroughly 

consider the extent to which the SO2

declining cap will effectively prevent 

33770 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

4See memorandum from Lily Wong, EPA Region 

9, to Docket OAR–2002–0076. March 2003.

degradation from the visibility 

impairing emissions from new source 

growth across the region. 

Subsequent to the comment period, 

the Western States Air Resources 

Council (WESTAR) Model Rule/MOU 

Working Group noted 4 that as States 

and Tribes follow their process for 

adopting SIPs and TIPs under 40 CFR 

51.309, the States and Tribes will not 

necessarily be aware of which other 

States and Tribes will choose to 

participate in the program. Accordingly, 

the WESTAR Working Group believed 

that States and Tribes would need to 

include all of Table 2 and calculation 

procedures in their SIP/TIP submittals, 

such that the SIP/TIP submittal could 

account for all possibilities of 

participation by other States and Tribes. 

Further, the WESTAR Working Group 

noted that in the initial years of the 

program, EPA may not have approved 

the SIP for all participating States before 

the date of the annual determination of 

whether the milestone is exceeded. 

Lastly, Tribes are not required to submit 

a TIP by 2003 and can choose to 

participate in the program at anytime. 

Accordingly, the WESTAR Working 

Group recommended that EPA clarify 

whether the comparison of emissions to 

the milestones would take into account 

all States that have submitted SIPs, or 

only those with approved SIPs as of the 

date of the determination.

Final Rule. The final rule retains the 

opt-out tables from the proposal. The 

EPA continues to agree with the WRAP 

that the opt-out tables do not necessarily 

represent the amounts that would be 

allocated to a given State or Tribe under 

a trading program. The WRAP has 

developed a detailed methodology for 

determining and establishing trading 

program allocations for each source. 

This methodology is described in detail 

in sections II.D and III.D.7 of the Annex. 

It is this methodology that will result in 

allocations should the trading program 

be needed. The EPA believes that 

establishing the amounts in the opt-out 

tables as the amounts for trading 

program allocations would 

unnecessarily constrain the WRAP from 

implementing its methodology. 

The EPA continues to believe, as 

discussed in the proposal, that 

judgments on the issue of ‘‘critical 

mass’’ are best left to the WRAP. 

Regarding the comment that the SO2

declining cap may not effectively 

prevent degradation of visibility from 

new sources throughout the region if not 

enough States and Tribes participate, 

EPA notes that visibility progress issues 

as a general matter will need to be 

addressed in SIPs submitted under 40 

CFR 51.308. Accordingly, EPA does not 

believe that this comment warrants any 

change to the proposed rule language. 

The EPA agrees with the WESTAR 

Working Group that States and Tribes 

submitting their SIPs and TIPs under 40 

CFR 51.309 should include Table 2 and 

the calculation procedures in their SIP 

or TIP regulations in order to account 

for all possibilities of participation by 

other States and Tribes. The EPA also 

agrees with the WESTAR Working 

Group recommendation to add to the 

final rule clarification that the opt-out 

adjustment under 40 CFR 51.309(h)(1)(i) 

will include the States and Tribes for 

which SIPs and TIPs have not been 

approved by EPA as of the date of the 

determination.

3. Adjustments for Smelter Operations 

Proposed rule. At the time the WRAP 

was submitted to EPA, two copper 

smelters in the region, the Phelps Dodge 

Hidalgo smelter and the BHP San 

Manuel smelter, had suspended 

operations. In the Annex, the WRAP 

recommended that the program 

specifically account for the possibility 

that these smelters could come back on 

line should economic conditions 

change. Accordingly, the Annex 

contained a specific set of complex 

decision criteria to adjust the milestones 

in the future for a number of specific 

scenarios related to the two smelters. 

The EPA in the proposal attempted to 

clarify the WRAP’s adjustments with a 

series of ‘‘if-then’’ tables, and we 

requested comment on whether these 

tables accurately reflect the decision 

criteria in the Annex. 

Public comments. Commenters agreed 

that the EPA’s proposed table accurately 

reflected the Annex. Two commenters 

noted that subsequent to the 

development of the Annex, a third 

smelter, the Phelps Dodge Chino 

smelter, suspended operations. These 

two commenters recommended that the 

regional haze rule should recognize this 

without reopening the negotiated 

agreement on the milestones. Further, 

the commenters recommended that the 

regional haze rule should provide some 

assurance that when the Chino Smelter 

comes back on line again, its 16,000 

allowances will be available to it 

without prematurely triggering the 

program. 

Final rule. The final rule retains the 

smelter adjustment tables as proposed. 

The EPA considered whether the final 

rule should contain contingencies for 

the Chino Smelter similar to those for 

Hidalgo and San Manuel. For example, 

one approach would be to deduct the 

amount from the Chino smelter from the 

milestones and to develop a series of 

adjustments to account for the 

possibility that it may come back on 

line, similar to the approach for the 

other two smelters. The EPA has not 

taken this approach, because of the 

complexity that would be added to the 

adjustments, and because this scenario 

was not specifically discussed as the 

WRAP was negotiating the Annex. 

4. Adjustments for Utility Boilers 

Opting To Use More Refined Flow Rate 

Methods 

Proposed rule. The proposed rule 

requested comment on the specific 

method and process for adjusting the 

milestones for sources using a refined 

method for measuring stack flow rates. 

This was seen as a significant issue, 

because the flow rate affects the 

determination of emissions rate from a 

continuous emissions monitoring 

system (CEMS). 

In 1999, EPA adopted revisions to 

EPA’s Reference Method 2, the standard 

method for measuring stack flow rates 

(64 FR 26484, May 14, 1999). The 

revisions provided three new 

procedures: Methods 2F, 2G, and 2H. 

The new procedures, if used for a given 

source, allow for a more detailed 

assessment of the stack flow rates to 

provide more accurate flow rate results. 

The changes addressed concerns raised 

by utilities that Reference Method 2 may 

over-estimate flow in certain cases, such 

as when the flow is not going straight up 

the stack. If the flow rate is overestimated, this would also lead to the 

overestimation of SO2 emissions 

because the facility’s continuous flow 

rate monitor is calibrated to correspond 

to the flow test method. Facilities 

subject to the acid rain program under 

title IV of the CAA must perform these 

flow tests at least once a year to 

determine the accuracy of their 

continuous flow monitors. Facilities 

have an option to use either the old 

Method 2, or one or more of the new 

methods. 

When the WRAP made its emission 

projections for purposes of developing 

the milestones, the new methods were 

not yet in place. Accordingly, if a source 

owner chooses to use the new flow 

methods, and if as expected it results in 

a reduced flow rate for the same level 

of operation, then there will be a 

corresponding decrease in the measured 

emissions. In the preamble to the 

proposal, EPA agreed with the WRAP 

that this would create the possibility of 

a ‘‘paper’’ decrease relative to the 

milestone if the milestone reflects the 

old method. As discussed in section 

III.A.5 of the Annex, the WRAP notes 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33771

that a protocol is needed for adjusting 

the milestones to reflect changes in the 

baseline emission for utility boilers any 

time that a source opts to change its 

CEMs method. The WRAP addressed 

this issue in greater detail in a 

supplemental paper entitled ‘‘Emissions 

Tracking Prior to Triggering the 

Backstop Trading Program,’’ which was 

submitted to EPA on June 1, 2001. 

The WRAP has identified three 

possible technical procedures for 

developing an ‘‘adjustment factor’’ for 

the new flow method. The EPA agrees 

that any of these three procedures 

would be acceptable. Under the first 

procedure, there would be a side-byside comparison of flow rates using both 

the new and the old flow reference 

methods. For example, if the new 

method measured 760,000 cubic feet per 

minute, and the old method measured 

800,000 cubic feet per minute, the 

adjustment factor would be (760,000/

800,000), or 0.95. The second method 

would use annual average heat rate, 

which is reported to the Energy 

Information Administration (EIA), as a 

surrogate for the flow rate. Under this 

method, the flow adjustment factor 

would be calculated using the annual 

average heat rate using acid rain heat 

input data (MMBtu) and total generation 

(MWHrs)reported to EIA, calculated as 

the following ratio:

Heat Input/MW-hrs for first full year of data using new flow rate method

Heat Input/MW-hrs for last full year of data using old flow rate method

The third method would use data 

reported to EPA’s acid rain program. 

Under this method, there would be a 

comparison of the standard cubic feet 

per minute (CFM) per megawatt(MW) 

before and after the new flow reference 

method based on CEMs data, calculated 

as the following ratio:

SCF/Unit of Generation for first full year of data using new flow rate method

SCF/Unit of Generation for last full year of data using old flow rate method

In the supplemental information 

paper, the WRAP identified three 

possible approaches for using the 

adjustment factors for making a correct 

comparison of emissions to the 

milestones. The WRAP did not indicate 

a preference for any single approach. 

The three options are as follows: 

(a) Using one of the options described 

above for determining the flow 

adjustment factor, revise the source’s 

baseline emissions forecast for 2003, 

2008 and 2013. For each year following 

the adoption of the new flow reference 

method through 2017, reduce the 

interim milestone by the corresponding 

amount. To illustrate how this approach 

would work, the proposal used an 

example where the adjustment factor for 

a given stack is 0.95. As discussed 

above, this means that the emissions 

with the new method is deemed to be 

0.95 times the emissions with the old 

method. For this example, for option (a) 

this means that the previous baseline 

emissions for that source would be 

multiplied by 0.95. The annual 

compliance check would then be done 

by comparing regional SO2 emissions 

(unadjusted, as reported to EPA’s acid 

rain program) to the revised milestone. 

(b) Using one of the options described 

above for determining the flow 

adjustment factor, revise the source’s 

reported emissions on an annual basis, 

and do not adjust the milestone. For the 

example noted above, under option (b) 

the emissions reported to EPA’s acid 

rain program would be adjusted upward 

by multiplying the amount times (1/

0.95). For each year following the 

adoption of the new flow reference 

method through 2017, the annual 

compliance check would be done by 

comparing the adjusted regional SO2

emissions to the unadjusted milestones.

(c) Use a combination of the two 

approaches. Under this approach, 

interim milestones would be adjusted 

only every 5 years (using option (a) 

above) and the reported emissions for 

additional sources making the change in 

the intervening years are adjusted for 

comparison to the milestones (using 

option (b) above). 

In the proposal, EPA stated that any 

one of these three approaches would be 

acceptable, but that a specific approach 

needs to be selected for the final rule. 

The EPA also noted its view that these 

adjustments to the milestone or to the 

reported emissions would not 

necessarily require SIP or TIP revisions, 

because the precise method for making 

the adjustment, and the publicly 

available data elements that will be used 

for making the adjustment, could be 

specifically identified in the final rule. 

Public comments. Commenters 

generally agreed with EPA’s assessment 

that any of the three approaches for 

determining an adjustment factor would 

be acceptable. 

The WRAP noted in its comments that 

the 2018 milestone already included 

assumptions about the effect of this flow 

rate adjustment. The WRAP recognized 

that the preamble to the rule implies 

this distinction but the WRAP 

recommended that this be reflected in 

the regulatory text as well. 

Regarding the three options related to 

the process for using the adjustment 

factors, the WRAP recommended option 

(c) in its comments. That is, the 

milestones would be adjusted every 5 

years with the periodic SIP revisions, 

and adjustments would be made to the 

reported emissions for the interim 

period. Other commenters, while 

supporting the concept of adjusting the 

milestones with the SIP revisions, did 

not address whether the reported 

emissions should be adjusted in the 

interim period. The EPA infers from 

these comments that these commenters 

are likely recommending that emission 

adjustments need not be made in the 

interim period. 

Final rule. The final rule includes 

regulatory language agreeing with the 

WRAP’s recommendations regarding the 

flow rate adjustment. States are required 

in the SIPs to provide for reporting of 

‘‘adjusted’’ emission rates pending an 

update to the milestones, which would 

occur at the time of the plan revisions 

required under 40 CFR 51.309(d)(10). 

5. Adjustments for Enforcement Actions 

Proposed rule. The proposed rule 

included a provision in the Annex for 

adjustments to the milestones for 

‘‘illegal emissions.’’ In developing the 

milestones, the WRAP identified the 

baseline emissions for each source 

during the base year, and ‘‘forecasted’’

emissions for the source during the 2003 

to 2018 time period, taking into 

consideration growth, utilization, 

retirement, and the absence of any 

additional requirements. The 


ER05JN03.004</GPH> ER05JN03.005</GPH>
33772 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

5For option 1, the proposal used the broad term 

‘‘resolution’’ to refer to all types of emissions 

reductions resulting from enforcement actions.

6The EPA interprets the term ‘‘administrative 

record’’ in the WRAP’s comments to refer to 

information made available in support of the State’s 

or Tribe’s implementation plan submittal to EPA 

under 40 CFR 51.309(d)(10).

7This comment responded to EPA’s question on 

how the milestones should be adjusted with a 

compilation of these source-specific 

baseline emissions resulted in the 

baseline emission inventory totals, 

which serve as a ‘‘starting point’’ for 

measuring progress from the program. 

The WRAP recognized in the Annex 

that if a source was in violation of 

applicable requirements during the base 

year when its emissions were 

determined, the baseline emissions 

during 2003–2018 would be 

overestimated. 

In the proposal, EPA included this 

provision with general regulatory 

language providing for the adjustment of 

baseline emissions for illegal emissions, 

and we requested comment on possible 

ways of clarifying the provision in the 

final rule. The EPA noted in the 

preamble to the proposal that there are 

instances where it may be unclear 

whether under the approach in the 

Annex, emissions would be considered 

as ‘‘illegal,’’ for example where:

—Disputing parties resolve their 

differences through (1) A consent 

decree that is either entered through 

Federal or State courts, or (2) an 

administrative enforcement 

proceeding by either a State, Tribe, or 

EPA; or 

—A State disagrees with EPA or a 

citizens’ group over whether or not a 

particular alleged violation occurred.

The EPA requested comment on how 

these situations should affect the 

milestones. Specifically, EPA requested 

comment on the following possible 

options: 

Option 1. Under this option, the rule 

would require that if there is any 

resolution 5 to alleged illegal SO2

emissions, then all of the reductions 

resulting from the resolution would be 

considered as ‘‘illegal emissions.’’

Taking into account these reductions, 

the State or Tribe would then ‘‘reforecast’’ the source’s emissions and its 

effect on the milestone. ‘‘Re-forecast’’

means to re-apply the forecasting 

process, that is the process the WRAP 

originally used to project future 

emissions and develop the milestones, 

using the corrected baseline SO2

emissions for the affected source. A 

comparison of this re-forecast of 

emissions with the previous forecast of 

emissions would determine the amount 

of the adjustment for each year up 

through 2018.

Option 2. Under this option, the rule 

would allow for case-by-case judgments 

on the appropriateness of adjusting 

baseline emissions following resolution 

of allegations of illegal SO2 emissions. 

The rule would, however, clarify the 

entity responsible for deciding whether 

a case involves illegal emissions 

warranting an adjustment to the 

milestones. Under this option, we 

requested comment on which entity 

should be responsible for this 

determination, that is, whether the rule 

should clarify whether the parties 

entering into a settlement, the States, 

the Tribes, the WRAP, or EPA would 

determine the settlement’s impact on 

the milestones. 

The EPA noted that under any of the 

proposed options, adjustments to the 

milestone would occur only after the 

source in the enforcement case has 

achieved the requisite reduction of SO2

emissions. Consequently, adjustments to 

the milestones would have no effect on 

any other facility’s operation because all 

of the reductions would be achieved by 

the source subject to the enforcement 

action. 

The EPA also solicited comments in 

the proposal on how to treat any extra 

SO2 emissions reductions that a facility 

might achieve as a result of a settlement. 

The EPA will often allow a company 

that is settling through a consent decree 

or settlement agreement to perform a 

supplementary environmental project 

and allow the expenditures on this 

project to partially offset penalties that 

the company would otherwise be 

assessed. The EPA noted in the 

preamble to the proposal that if the 

milestones are not reduced by the 

amount of extra emissions reductions 

from this type of project, then the 

environment may see little benefit, since 

another company would be allowed 

more SO2 emissions. Thus, in the 

proposal, EPA sought input on whether 

these ‘‘extra’’ emissions reductions 

should be considered part of this 

‘‘illegal emission’’ adjustment and 

factored into a recalculation of the 

milestone. 

Public Comments. The EPA received 

a number of comments on this 

provision. 

A few commenters recommended that 

this provision be deleted from the rule 

entirely. Some commenters criticized 

this provision because it would lower 

the milestones and reduce the potential 

pool of allowances under the backstop 

trading program. Accordingly, these 

commenters believed that the provision 

would serve to punish the ‘‘nonviolators’’ in the program at large. 

Another commenter believed that any 

adjustment for ‘‘illegal emissions’’ is not 

appropriate unless it has been 

demonstrated that the provision would 

improve visibility. 

Other commenters supported the 

provision but recommended that the 

term ‘‘adjustments for illegal emissions’’

be replaced with the term ‘‘adjustments 

due to enforcement actions.’’ Some 

commenters requested clarification on 

whether these adjustments would only 

apply to enforcement actions that would 

have affected the assumptions used in 

baseline emissions projections. One 

commenter recommended that the 

proposed adjustment for illegal 

emissions should apply only to 

emissions reductions resulting from 

consent decrees or administrative orders 

where the EPA or authorized State has 

commenced the enforcement action, and 

not where emissions reductions arise 

out of ‘‘voluntary settlements’’ initiated 

by the company. 

Regarding the two options for 

clarifying this provision, the WRAP and 

other commenters recommended the 

second option. These commenters noted 

that case-by-case judgments will be 

needed to determine whether and the 

degree to which the milestones should 

be adjusted. Responding to EPA’s 

request to clarify the entity responsible 

for calculating the adjustment, the 

WRAP recommended that the entity 

responsible should be the parties 

entering into a settlement, in 

conjunction with the relevant State or 

Tribe. The commenters envisioned that 

EPA would have an oversight role in the 

SIP approval process to determine that 

the adjustment agreed to through the 

enforcement process is properly 

reflected in the milestone adjustment. 

The WRAP comments recommended 

that specific language be added to the 

final rule requiring States and Tribes to 

document, and include in the 

administrative record,6 a discussion of 

whether any adjustments to the 

milestones are appropriate based upon 

administrative or judicial enforcement 

actions, and to include an explanation 

of the basis for the State’s or Tribe’s 

decision.

Regarding EPA’s request for comment 

on how ‘‘extra’’ emissions reductions in 

enforcement actions should be treated, 

the WRAP and other commenters 

believed that these extra emissions 

reductions should also be treated on a 

case-by-case basis. The WRAP 

commenters recommended that EPA 

include a provision in the rule requiring 

States or Tribes to address in the 

periodic SIP revision whether SO2

allowances should be retired or 

confiscated 7 as a result of an 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33773

recommendation on whether allowances should be 

retired or confiscated. The EPA interprets this 

comment as addressing both the milestones and the 

allowances, which add up to the milestones.

administrative or judicial enforcement 

action and the rationale for the State’s 

or Tribe’s decision.

Final rule. The EPA has retained this 

provision in the final rule. The EPA 

agrees with the WRAP that this 

provision is necessary to ensure that the 

‘‘baseline,’’ the starting point for the 

milestone calculations, reflects 

compliance with regulations. So long as 

the reductions to the milestones do not 

occur before the date a source comes 

back into compliance, EPA does not 

believe that this adjustment has the 

effect of ‘‘penalizing’’ the other sources. 

Regarding the comment that this 

provision is deficient due to a lack of 

demonstrated visibility improvements, 

EPA believes that the WRAP was not 

required to make a demonstration of the 

visibility improvements of this specific 

provision, which is part of the WRAP’s 

overall program for SO2 reductions from 

stationary sources. 

The final rule reflects EPA’s 

agreement with recommendations of 

commenters to replace the term 

‘‘adjustments for illegal emissions’’ with 

the term ‘‘adjustments due to 

enforcement actions.’’ The EPA agrees 

that this terminology better 

encompasses the types of situations that 

the provision would address. The EPA 

interprets the term ‘‘enforcement 

action’’ in these comments to be used 

broadly to include any type of 

enforcement action including 

administrative orders, settlements, 

consent decrees, court orders, and 

compliance schedules in title V permits.

As recommended by some 

commenters, we have added language 

consistent with Option 2. The EPA 

agrees with commenters that there will 

be case-by-case considerations in 

enforcement actions that could affect 

whether an adjustment to the milestones 

is appropriate. The EPA generally agrees 

with comments suggesting that the 

entity responsible for calculating the 

amount of the adjustment should be the 

parties entering into the settlement, and 

that where those parties do not include 

the State or Tribe, the State or Tribe 

should be consulted to assure that 

correct assumptions are used for the 

adjustment. Further, EPA believes that if 

the parties involved in the action are 

responsible for recommending the 

amount of the adjustment, or whether 

an adjustment is appropriate, this would 

allow a source entering a voluntary 

settlement to negotiate whether or not 

an adjustment should be made. 

The EPA believes it is useful to clarify 

a few points regarding actions where 

EPA or a citizens’ group is the plaintiff 

in the enforcement action. Such cases 

would be brought to the U.S. District 

Court. Pursuant to longstanding 

Department of Justice policy, in any 

such case members of the public, 

including an interested State or Tribe, 

would have an opportunity to review 

and comment on the proposed consent 

decree settling the enforcement case. 

See 28 CFR 50.7. For any such case 

before the U.S. District Court, EPA 

intends to provide the State or Tribe an 

opportunity to review and comment on 

the proposed settlement. If a settlement 

or order from the U.S. District Court is 

issued and contains an adjustment to 

the milestones, such a settlement or 

order from the court is binding and the 

State and Tribe would be required to 

adjust the milestones as directed by the 

court. For instances where such court 

actions are silent on reforecasting the 

baseline emissions and adjusting the 

milestones, EPA believes the State or 

Tribe must determine whether such a 

reforecast and adjustment is 

appropriate. 

The EPA agrees with the WRAP’s 

recommendations that the State or Tribe 

should provide documentation of these 

adjustments for enforcement cases in 

the administrative record for the 5-year 

SIP or TIP revision. Specifically, the 

rule requires the following 

documentation:

—Identification of each source that has 

reduced SO2 emissions under an 

administrative or judicial enforcement 

action, 

—Whether the milestones were adjusted 

in response to the reduction in SO2

emissions under the enforcement 

action, 

—The rationale for the State’s or Tribe’s 

decision on the milestone adjustment, 

—If extra SO2 emissions reductions 

(over and above those reductions 

needed for compliance) were part of 

the settlement, whether those 

reductions resulted in any adjustment 

to the milestones or allowance 

allocations. 

C. Annual Process for Determining 

Whether a Trading Program Is Triggered 

The proposed rule describes an 

annual process to determine whether 

the emissions from participating States 

exceed the milestones and thus trigger 

the backstop trading program. This 

proposed process contained a number of 

deadlines for steps in the annual 

process, and contained special 

provisions for certain years. Only a few 

comments were received on these 

provisions. 

1. Date for the Annual Determination 

Proposed rule. The proposed rule 

contained annual deadlines for 

determining whether the milestone is 

exceeded. This proposed schedule 

called for a draft determination not later 

than December 31 of each year, 

beginning with a draft determination for 

the year 2003 by December 31, 2004. 

The proposed schedule called for a final 

determination, taking into account 

public comments, by the end of the 

following March, beginning with a final 

determination by March 31, 2005 for 

calendar year 2003.

Public comments. In their comments 

on the proposal, the WRAP 

recommended that this annual deadline 

be extended by 1 year. For example, 

pursuant to this recommendation, EPA 

would extend the deadline for the final 

determination for calendar year 2003 

from March 31, 2005 to March 31, 2006. 

Because certain States or Tribes may 

have more numerous or complex 

sources, the WRAP believed that 

additional time may be needed to 

collect, validate, and analyze emissions 

data. In support of this request for 

additional time, the WRAP notes that 

adding time for the annual 

determination would not affect the 

timing for implementing the backstop 

trading program. For example, even if 

the annual determination for calendar 

year 2003 were not made until 2006, 

this would not affect the date for the 

onset of the trading program. If the 

calendar year 2003 milestone were 

triggered, sources would still need to 

hold allowances for emissions in 

calendar year 2009. 

Final rule. In the final rule, EPA has 

retained the deadline for the annual 

determination as proposed. The EPA 

recognizes that some States within the 

region may have more complex 

technical and administrative procedures 

for collecting annual emissions 

inventory data. The EPA’s current 

judgment is that for States who have 

indicated possible participation in the 

program under 40 CFR 51.309, these 

obstacles do not exist. The EPA believes 

that it is not desirable to move the 

deadline forward in time unless it is 

absolutely necessary. While, as the 

WRAP correctly notes, this would not 

affect the deadlines for implementation 

of the backstop trading program, it 

would have the effect of reducing the 

amount of time for planning and 

implementation if the trading program 

were triggered. If the States needing 

more time do, in fact, decide to 

participate in the program, EPA believes 

that the regional haze rule could be 

33774 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

8See note from Lily Wong, EPA Region 9, to 

docket OAR–2002–0076, March 2003.

revised at a later date to reflect this 

need. 

2. Option for Triggering the Trading 

Program in the Year 2013 

Proposed rule. The proposed rule 

provided States and Tribes with the 

option at a specific point in time to 

consider emission projections for the 

year 2018, in addition to actual 

emissions inventory reports for previous 

years in deciding whether or not to 

trigger the backstop market trading 

program. For this option, if States and 

Tribes so choose, the emissions 

inventory reports for the year 2012—

which are collected in calendar year 

2013—may also contain emissions 

projections for the year 2018. If the 

projections indicate that the year 2018 

milestone will be exceeded, then under 

the proposal, States and Tribes may 

choose to implement the market trading 

program beginning in the year 2018. 

Public comments. One commenter 

representing Western business interests 

recommended that the WRAP develop, 

and the final rule contain, specific 

criteria for the option of triggering the 

trading program in 2013. The 

commenter recommended that, for 

example, the final rule should contain 

criteria for a specific emissions level in 

2013, or a specific level of emissions 

reductions yet to be achieved between 

2013 and 2018. 

Final rule. In the final rule, EPA has 

retained the 2013 option as proposed. 

The EPA believes that the intent of this 

provision in the Annex is to provide 

broad flexibility to the States and Tribes 

for deciding whether this 2013 option 

should be exercised. The EPA does not 

believe that it is desirable or feasible to 

develop specific decision criteria for 

this purpose in the final rule. 

3. Requirements for Recordkeeping 

Proposed rule. The proposal, in 40 

CFR 51.309(h)(iii), included a 

requirement for the retention of records 

relevant to the annual comparison of 

SO2 emissions to the milestones for at 

least 5 years from the establishment of 

the record. For records that provided the 

basis for an adjustment to the milestone, 

the proposed rule required retention of 

records for at least 5 years after the date 

of the SIP revision. 

Final rule. No public comments were 

received on this issue during the 

comment period. Following the close of 

the comment period, however, the 

WESTAR model rule working group 8

questioned whether this recordkeeping 

requirement would be adequate in all 

cases, if EPA’s intent were to retain the 

records for 5 years after they are 

relevant to the annual determination. 

Given the design of the program, 4 and 

1⁄4 years can elapse between the creation 

of a record and the use of the record in 

the annual comparison of regional SO2

emissions against the milestone. This is 

because for all except the first 2 years 

of the program, the annual 

determination is based on a 3-year 

average of the regional SO2 emissions 

for the preceding 3-year period. 

Additionally, the formal comparison 

with the milestone is not accomplished 

until 15 months after the end of this 3-

year period. Thus, close to 5 years can 

pass from the establishment of a record 

to its use. The working group believed 

that the intent of the recordkeeping 

requirement was to maintain relevant 

records for 5 years after the 

determination of whether the milestone 

was exceeded for a given year, which 

could mean that some records relevant 

to the determination would be needed 

for approximately 10 years from the date 

they were generated. The EPA agrees 

that this was the intent of the 

recordkeeping requirement in 40 CFR 

51.309(h)(iii) of the proposed rule; 

accordingly, the final rule extends the 

time period for the retention of records 

from 5 to 10 years.

D. Requirements for the Backstop 

Trading Program 

A fundamental feature of the Annex is 

a backstop market trading program that 

would be triggered if any annual 

milestone is exceeded. The Annex, as 

required by 40 CFR 51.309(f) of the 

regional haze rule, provided 

documentation and details for the 

backstop trading program. Attachment 

A to the annex was a draft model rule 

for use by States in implementing the 

backstop trading program. In the 

proposal, EPA included ten 

fundamental elements that SIPs under 

40 CFR 51.309 must contain, and the 

basic requirements for those elements to 

help guide EPA’s review of the SIPs. 

The fundamental elements described in 

the proposed rule were as follows: 

(1) Provisions for the allocation of 

allowances to each source in the 

program; 

(2) Emissions quantification 

protocols;

(3) Provisions for the monitoring, 

recordkeeping and reporting of 

emissions; 

(4) Provisions for a centralized system 

to track allowances and emissions; 

(5) Provisions requiring the 

identification of an authorized account 

representative for each source in the 

program; 

(6) Provisions requiring the account 

representative to demonstrate annual 

compliance with allowances; 

(7) Provisions for the process of 

transferring allowances between parties; 

(8) Provisions describing the 

‘‘banking’’ of extra emissions reductions 

for use in future years, if the 

implementation plan allows for banked 

allowances; 

(9) Provisions establishing 

enforcement penalties for 

noncompliance with the trading 

program; and 

(10) Provisions for periodic evaluation 

of the trading program.

In the proposed rule, EPA included 

basic requirements for each of these 10 

provisions, and we requested comment 

on whether we had addressed each 

requirement in an appropriate level of 

detail, and on whether the substance of 

the requirement was sufficient to ensure 

the integrity of the trading program. 

The EPA did not receive any adverse 

comments regarding the level of detail 

of the proposed requirements for the 

trading program. We did receive 

comment on the substance of a few of 

the provisions that we discuss in this 

section of the preamble. 

1. Allowances 

Proposed rule. The proposed rule 

required the backstop trading program 

to include allowances. An allowance 

authorizes a source included within a 

market trading program to emit one ton 

of SO2 during a given year. At the end 

of the compliance period, which is a 12-

month period ending with each 

calendar year, a source owner’s 

allowances must exceed or equal its 

annual emissions. 

The proposed rule would require 

States and Tribes to include initial 

source-specific allowances for each 

source included within the program. 

Under the proposal, these initial 

allocations must specify the tons per 

year allocated for each source for each 

year between 2009 and 2018. The 

Annex contains a detailed discussion of 

the methodology for distributing 

allowances to sources. The EPA 

proposed, however, that the details of 

this methodology were not needed in 

EPA’s rule. If those allowances add up 

to the appropriate regional total, EPA 

proposed that the objectives of the 

program would be met. The EPA 

proposed one exception to this 

approach, a requirement that 20,000 

tons of allowances be reserved as a ‘‘setaside’’ for use by Tribes. 

Public comments. The EPA received 

comments on three issues related to 

allowances. First, the WRAP and one 

electric utility commenter 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33775

recommended that the proposed rule be 

modified such that initial SIPs would 

not be required to have source-specific 

amounts for each source. Instead, these 

commenters recommended that EPA 

allow the initial SIPs to include a 

formula that will be used to calculate 

the allowances when the program is 

triggered. 

Second, the WRAP and one 

environmental group commenter 

recommended specific regulatory 

language for reserving a portion of 

allowances for renewable energy 

resources such as wind, solar 

photovoltaic and solar thermal 

technologies, geothermal, landfill gas 

and biomass technologies, and 

hydropower projects meeting Lowimpact Hydropower Institute criteria. 

This regulatory language consisted of a 

regulatory definition of ‘‘eligible energy 

resource.’’ In addition, the 

recommendation included specific 

regulatory language for inclusion in 40 

CFR 51.309(h)(4)(i) that would provide 

‘‘eligible energy resources’’ with 2.5 

tons of SO2 allowances per megawatt of 

installed nameplate capacity per year.

Final rule. The EPA has amended the 

proposed rule as requested by the 

WRAP and other commenters. The EPA 

agrees that a clear and definitive 

formula for issuing source-specific 

allowances is an acceptable approach. 

The approach to distributing allowances 

described in the Annex provides for 

adjustments of the allocations over time, 

for example providing ‘‘bonus’’

allocations for early reductions. Because 

the allocations provide for adjustments 

over time, it is likely that individual 

source allocations could change 

between the date of the 2003 SIPs and 

the date a trading program would be 

triggered. Accordingly, EPA believes 

that re-calculation of the source-specific 

allowances when the program is 

triggered would be likely in any case. If 

the program is triggered, the subsequent 

SIP revision must include the sourcespecific allocations. 

The EPA has also incorporated the 

WRAP’s recommended provision 

regarding renewable energy credits. 

Given the WRAP’s desire that this 

provision be a feature of the backstop 

trading program, EPA agrees that 

regulatory language is needed to ensure 

that this feature is included in SIPs. The 

EPA has incorporated the regulatory 

language recommended by the WRAP 

with two modifications. First, EPA 

includes only the first sentence of the 

WRAP’s recommended definition 

(‘‘Eligible renewable energy resource, 

for purposes of 40 CFR 51.309, means 

electricity generated by non-nuclear and 

non-fossil low or no air emission 

technologies’’). The EPA believes that it 

is not necessary to include, and would 

be difficult to interpret, the WRAP’s 

recommended additional language 

limiting the definition to only those 

technologies ‘‘using resources that are 

virtually inexhaustible, reduce haze, 

and are environmentally beneficial.’’

The EPA agrees with the WRAP that it 

is useful to clarify that this definition 

specifically includes:

—Electricity generated by wind energy 

technologies; 

—Solar photovoltaic and solar thermal 

technologies; 

—Geothermal technologies; 

—Technologies based on landfill gas 

and biomass sources; and 

—New low-impacts hydropower that 

meets the Low-Impact Hydropower 

Institute criteria.

Similarly, EPA agrees with the WRAP 

that it is useful to clarify that ‘‘biomass’’

includes agricultural, food and wood 

wastes, but does not include biomass 

from municipal solid waste, black 

liquor, or treated wood, and that for 

purposes of this definition, low-impacts 

hydropower does not include pumped 

storage. At the same time, EPA has 

concerns that the various lists in the 

WRAP’s proposed definition may not be 

exhaustive, and that it would be 

preferable that the list be able to change 

without necessitating a change to 40 

CFR 51.309. 

The EPA has also included an 

amendment to 40 CFR 51.309(h)(4)(i) 

which requires that the backstop market 

trading program include the WRAP’s 

recommended provision for renewable 

energy credits. This amendment 

requires SIPs under 40 CFR 51.309 to 

include a provision that eligible 

renewable energy resources that begin 

operation after October 1, 2000 will 

receive 2.5 tons of SO2 allowances per 

megawatt of installed nameplate 

capacity per year. The rule also includes 

language consistent with the WRAP’s 

recommendation that allowance 

allocations for renewable energy 

resources that begin operation prior to 

the program trigger will be retroactive to 

the time of initial operation. The EPA 

believes, however, that it is important 

for States to preserve flexibility over 

time with respect to implementing this 

provision. Accordingly, the final rule 

allows, but does not require, that 

implementation plans may provide for 

an upper limit on the number of 

allowances provided for eligible 

renewable energy resources. 

2. Emissions Quantification Protocols 

Proposed rule. The proposed rule 

required that implementation plans 

under 40 CFR 51.309 must include 

specific emissions quantification 

protocols, that is, procedures for 

determining actual emissions. These 

procedures will be used to measure, or 

determine, annual emissions from each 

source in the trading program if the 

trading program is triggered. The 

proposed rule also required that States 

include the necessary monitoring, 

recordkeeping, and reporting provisions 

to measure and track results. 

In the Annex, the WRAP recognized 

the need to have detailed and prescribed 

emission quantification protocols and 

recommended that the participating 

States and Tribes establish such 

provisions in the SIPs submitted under 

40 CFR 51.309. The Annex describes the 

WRAP’s approach to monitoring in 

section II, pages 39–41, in section III, 

item III.D.3 on page 64, and in 

Attachment A, Draft Model Rule section 

C.2.3 Monitoring Requirements, and 

section C9 Emissions Monitoring. In 

particular, the WRAP recognized the 

need for emission monitoring protocols 

which ensure that emissions estimates 

are accurate and comparable for 

participating sources. For the trading 

program, the emissions become a 

tradeable, fungible commodity. 

Accordingly, it is important to the 

integrity of the program to ensure that 

one ton of emissions from one source is 

equivalent to one ton of emissions from 

another source.

In the Annex, the WRAP proposed 

that sources subject to the acid rain 

program under title IV of the CAA 

would continue to follow the 

continuous emissions monitoring 

procedures in the acid rain program, 

which appear in 40 CFR part 75. 

Because continuous emissions 

monitoring represents the best available 

method for determining emissions, EPA 

would not require separate emission 

protocols for these sources as part of 

implementing 40 CFR 51.309. 

For other categories of sources not 

covered by part 75, the WRAP in the 

Annex recognized the need to develop 

protocols based upon ‘‘best available’’

monitoring techniques for each source 

category. In the proposed rule, for 

source categories with sources in more 

than one State submitting an 

implementation plan under 40 CFR 

51.309, EPA required each State to use 

the same protocol. Further, in the 

proposal, EPA included criteria for 

determining the acceptability of these 

protocols in the implementation plans. 

These criteria are the same criteria listed 

in section 5.2 and 5.3 of EPA’s 

Economic Incentive Program (EIP) 

guidelines. These guidelines state that 

emission quantification protocols:

33776 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

—Must ensure reliable results, and that 

they must ensure that repeated 

application of the protocol obtains 

results equivalent to EPA-approved 

test methods; 

—Must be replicable, that is, the 

protocol ensures that different users 

will obtain the same or equivalent 

results in calculating the amount of 

emissions and/or emissions 

reductions.

These EIP guidelines also specify that 

trading programs need to include 

monitoring, recordkeeping, and 

reporting provisions to provide 

adequate information for determining a 

source’s compliance with the program. 

Adequate monitoring, recordkeeping 

and reporting procedures have several 

key attributes, including 

representativeness (characteristic of the 

source category and available 

monitoring techniques), reliability, 

replicability, frequency (that is, the 

monitoring is sufficiently repeated 

within the compliance period), 

enforceability (that is, the monitoring is 

independently verifiable), and 

timeliness. 

Public comments. Comments on this 

provision were generally supportive of 

the notion that stringent protocols are 

needed to ensure the integrity of the 

‘‘currency’’ for the trading program. 

Consistent with this view, one 

commenter representing electric utilities 

recommended that non-utility sources 

need to employ emissions quantification 

protocols that are equivalent to those of 

electric utilities. In the WRAP’s 

comments, a few changes to the 

regulatory language were recommended. 

Some comments expressed concerns 

that the proposal did not provide 

enough flexibility in the use of 

quantification protocols. 

The WRAP comments recommended 

that the proposal be modified to state:

For source categories with sources in more 

than one State submitting an implementation 

plan under this section, each State must use 

protocols that are ‘‘sufficiently rigorous and 

comparable to ensure that emissions in the 

region are measured in a reliable and a 

consistent manner.

The WRAP believed that the terms 

‘‘sufficiently rigorous and comparable’’

were preferable to the word requirement 

of the ‘‘same’’ methodology for each 

State. The WRAP also sought 

clarification that the proposed language 

in 40 CFR 51.309(h)(4)(iii) requiring that 

‘‘the protocols must provide consistent 

approaches for all sources within a 

given source category’’ would not limit 

the WRAP States’ and Tribes’ ability to 

establish different monitoring 

requirements within source categories 

based on established criteria such as the 

size of an emission unit. For example, 

the WRAP comments noted that it may 

be appropriate to require the use of a 

CEMS on a large industrial boiler while 

using emission factors for a smaller 

boiler that is used as a backup unit.

Finally, the WRAP expressed 

concerns that this provision should 

provide for the use of flexible 

monitoring options that make sense for 

this particular trading program. Because 

smaller sources are anticipated to have 

greater difficulty meeting stringent 

monitoring requirements, the WRAP’s 

market trading forum (MTF) is 

considering adopting more flexible 

monitoring provisions for these smaller 

sources. For smaller sources, the MTF 

goals are:

—To provide assurances that the 

milestone goals will still be met, 

—To ensure that data are sound and 

reliable, 

—To obtain data that are consistent with 

the assumptions of the Annex, and 

—To ensure the integrity of the trading 

program.

While these MTF discussions are still in 

the preliminary stages, the WRAP 

comments seek assurance from EPA that 

the final rule will allow consideration of 

different approaches. 

Another commenter noted that 

emission quantification protocols are 

continually evolving and becoming 

more refined. This commenter 

expressed concerns that if improved 

protocols, different from those used to 

establish the baseline, are used to 

determine steady and continuing 

progress and if the program is triggered, 

this could have the effect of penalizing 

sources for developing and using 

improved protocols. This commenter 

noted that EPA should not create a 

disincentive to such innovation. The 

commenter believed that if the 

quantification protocols remain static 

for SO2 measurements until the program 

is triggered, at which time sources will 

be required to implement different 

reduction programs, then sources will 

be better able to adapt to the more 

precise measurements resulting from 

new quantification protocols. This 

commenter also believed that as a result, 

the sources will be able to factor in the 

need, if any, for greater reductions 

resulting from improved quantification 

protocols. 

Final rule. The EPA has retained the 

language as proposed. The EPA believes 

that it is important to retain the 

requirement that sources in similar 

categories use the same method for 

determining emissions under the 

trading program. The EPA wishes to 

clarify that this does not preclude the 

MTF from making distinctions within a 

given category regarding the appropriate 

technique for determining emissions. 

However, we believe that it is important 

that any such distinctions be done 

consistently to ensure that the same 

methods are being used for similar 

sources. 

The EPA does not believe that the 

proposed rule discourages innovation in 

the development of monitoring 

techniques. For the ‘‘pre-trigger’’ portion 

of the program, that is, the time period 

before a trading program, the program 

specifically provides for adjustments to 

the milestones to ensure that changes in 

monitoring techniques are appropriately 

considered. 

3. Enforcement Penalties 

Proposed rule. The proposed rule 

required that the backstop trading 

program include specific enforcement 

penalties to be applied if the emissions 

from a source exceed the allowances 

held by the source. In the preamble, 

EPA noted that the Annex provides for 

two types of automatic penalties when 

excess emissions occur:

—The automatic surrender of two 

future-year allowances for every ton 

of excess emissions, and 

—A financial penalty ($5000 per ton, 

indexed to inflation from the year 

2000) deemed to exceed the expected 

cost of allowances by a factor of three 

to four.

In addition, the proposed rule 

required that in establishing 

enforcement penalties, the State or 

Tribes must ensure that:

—When emissions from a source in the 

program exceed the allowances held 

by the source, each day of the year is 

a separate violation, and 

—Each ton of excess emissions is a 

separate violation.

Public comments. The WRAP and a 

number of industry group commenters 

objected to the proposed requirements 

that when emissions from a source in 

the program exceed the allowances held 

by the source, each day of the year be 

considered a separate violation and that 

each ton of excess emissions be 

considered a separate violation. First, 

the WRAP and some industry comments 

asserted that the maximum penalty is 

punitive, and cannot be justified for a 

program that has been established to 

meet a welfare-based regional goal. 

Second, commenters believed that 

because this provision involved greater 

case-by-case judgments than the 

penalties in the Annex, the provision 

could lead to inconsistencies between 

the various State and tribal agencies. 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33777

The WRAP and other commenters 

recommended that EPA replace the 

penalty provisions in the proposal with 

the provisions that were recommended 

in the Annex, which were, in turn, 

based upon the acid rain program. 

Final rule. The EPA has made a few 

changes to the final rule based upon 

public comments received. First, EPA 

has decided to include in the final rule 

the two specific types of automatic 

penalties listed in the Annex for excess 

emissions. The EPA believes that by 

including a requirement for these 

penalty provisions in the final rule, EPA 

can remove any ambiguity that may 

exist over whether the types of 

provisions envisioned by the WRAP 

would be acceptable to EPA for SIPs 

submitted under 40 CFR 51.309. The 

EPA agrees with the commenters that 

the program should establish sufficient 

penalties to deter non-compliance. The 

final rule includes a requirement to 

forfeit two allowances for each ton of 

excess emissions, and a requirement for 

monetary penalties. The EPA uses the 

WRAP’s specific $5000 per ton amount 

in the final rule. At the same time, EPA 

believes that because it will be a number 

of years before the onset of any backstop 

trading program, it is possible that the 

appropriate $/ton figure could change 

over this time period, and that there 

may be additional factors that may need 

to be taken into account. The final rule 

provides for the development of an 

alternative to this amount, if the value 

is consistent across States and Tribes 

and the value substantially exceeds the 

expected costs of allowances, in order to 

provide a strong incentive for sources to 

hold allowances at least equal to their 

emissions. 

The EPA believes that many 

commenters may have misunderstood 

the proposed regulatory language 

requiring that each day of the year be 

considered a separate violation and that 

each ton of excess emissions be 

considered a separate violation. The 

EPA wishes to clarify that we view these 

provisions as clarifying the liabilities

that exist for violations under the CAA, 

and that these penalties are not 

automatic. The EPA believes that it is 

important to recognize that while the 

penalty structure devised by the WRAP 

will represent the principle way to deter 

violations, EPA believes that it is useful 

to clarify that the additional liabilities 

exist under the CAA. We believe this is 

consistent with the acid rain program. 

For example, under 40 CFR 77.1(b), EPA 

clarifies that the automatic penalties in 

the acid rain program do not negate 

other penalties under the CAA, as 

follows:

(b) Nothing in this part shall limit or 

otherwise affect the application of sections 

112(r)(9), 113, 114, 120, 303, 304, or 306 of 

the Act, as amended. Any allowance 

deduction, excess emission penalty, or 

interest required under this part shall not 

affect the liability of the affected unit’s and 

affected source’s owners and operators for 

any additional fine, penalty, or assessment, 

or their obligation to comply with any other 

remedy, for the same violation, as ordered 

under the Act.

While EPA agrees with the WRAP that 

the penalty structure contained in the 

backstop trading program, which is 

patterned after the acid rain program, 

should be effective and should 

constitute the principal way penalties 

would be imposed, it is nonetheless 

useful and important to clarify that 

sources are potentially liable for other 

penalties under the CAA. 

The EPA also clarifies in the final rule 

language, as noted on page 46 of the 

Annex (Annex section II.D.6.f.), that in 

addition to excess emissions, violations 

are possible with respect to other 

program requirements (such as 

monitoring and reporting requirements). 

We agree with the WRAP that CAA civil 

and criminal penalties would apply to 

such violations, including liability for 

each day as an individual violation. 

4. Requirements for Periodic Evaluation 

Proposed rule. The proposed rule 

required the backstop trading program 

to include a provision for periodic 

evaluations of the program. Such 

periodic evaluations are required as a 

means of determining whether the 

program, in its actual implementation, 

would need any mid-course corrections. 

The proposal included a list of nine 

questions that the program evaluations 

should address. These proposed 

questions, which were derived from 

EPA’s guidance for EIP, section 5.3(b), 

were as follows: 

(A) Whether the total actual emissions 

could exceed the milestones, even 

though sources comply with their 

allowances;

(B) Whether the program achieved the 

overall emission milestone it was 

intended to reach, and a discussion of 

the actions that have been necessary to 

reach the milestone; 

(C) The effectiveness of the 

compliance, enforcement and penalty 

provisions; 

(D) The administrative costs of the 

program to sources and to State and 

tribal regulators, including a discussion 

of whether States and Tribes have 

enough resources to implement the 

trading program; 

(E) Whether the market trading 

program has likely led to decreased 

costs for reaching the milestone relative 

to a non-market based approach, 

including a discussion of the market 

price of allowances relative to control 

costs that might have otherwise been 

incurred; 

(F) Whether the trading program 

resulted in any unexpected beneficial 

effects, or any unintended detrimental 

effects; 

(G) Whether the actions taken to 

reduce SO2 have led to any unintended 

increases in other pollutants; 

(H) Whether there are any changes 

needed in emissions monitoring and 

reporting protocols, or in the 

administrative procedures for program 

administration and tracking; 

(I) The effectiveness of the provisions 

for interstate trading, and whether there 

are any procedural changes needed to 

make the interstate nature of the 

program more effective. 

Public comments. The only comments 

on the periodic evaluation provision 

were from the WRAP. The WRAP, while 

supporting items (A), (C), (H) and (I) 

without changes, recommended changes 

to items (B) and (D) and recommended 

deletion of items (E), (F) and (G). 

The WRAP’s comments recommended 

deleting the phrase ‘‘and a discussion of 

the actions that have been necessary to 

reach the milestones’’ from the end of 

item (B). The WRAP noted that the 

backstop trading program is intended to 

provide incentives for long-term 

business planning. The program also 

allows other concerns, such as the need 

to meet the PM2.5 NAAQS, to bring 

about some of the emissions reductions 

needed to meet the regional haze goals. 

The WRAP stated that it could be 

difficult to determine what actions were 

required to achieve all of the emissions 

reductions in the region, because most 

of the reductions would follow from 

individual business decisions. 

Accordingly, in its comments, the 

WRAP recommended that this provision 

not be mandated by the rule. 

The WRAP comments recommended 

deletion of the phrase ‘‘the 

administrative costs of the program to 

sources and to State and tribal 

regulators’’ from item (D), such that this 

item would be modified to read ‘‘a 

discussion of whether States and Tribes 

have enough resources to implement the 

trading program.’’ The WRAP stated that 

States and Tribes will be monitoring the 

costs of the program as part of their ongoing internal program review, but that 

this should not be mandated by EPA. 

Rather, the WRAP recommended that 

the rule should be focused on what is 

needed to meet the visibility 

improvement goals, and that the 

development of the most cost-effective 

33778 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

strategies to meet those goals should be 

left to the States and Tribes. 

The WRAP’s comments recommended 

deletion of item (E) from the rule. The 

WRAP indicated that while States and 

Tribes may choose to perform an 

analysis of the cost effectiveness of the 

program, this should not be mandated 

by EPA. The WRAP also recommended 

deletion of items (F) and (G) from the 

rule. In its comments, the WRAP 

explained its view that it could be very 

difficult to determine what changes in 

emissions in the region are due to the 

milestones because so many different 

factors will come into play in a backstop 

trading program. Moreover, the WRAP 

comments noted that the regional haze 

rule already includes provisions for a 5-

year SIP review of the entire program 

under 40 CFR 51.309, and that new SIPS 

will be developed every 10 years. The 

WRAP stated that it believes that 

existing requirements in the rule are 

adequate to ensure that there are not any 

unintended consequences due to 

implementation of the backstop trading 

program, and that the additional audit 

requirements in (F) and (G) could prove 

to be difficult and expensive to analyze. 

Final rule. The final rule incorporates 

the WRAP’s recommended changes to 

items (B) and (D), and accepts the 

WRAP’s recommendation to delete item 

(E). The EPA has, however, retained 

items (F) and (G). The EPA believes that 

it is important that a program evaluation 

of the trading program determine 

whether the trading program resulted in 

any unexpected beneficial effects, or 

any unintended detrimental effects and 

whether the actions taken to reduce SO2

have led to any unintended increases in 

other pollutants. While the WRAP 

correctly notes that there are SIP 

reviews every 5 years, and new SIPS 

every 10 years, EPA believes that the 

program evaluations should be designed 

to provide information that indicate 

whether these SIP reviews should 

contain any mid-course corrections. The 

EPA does not believe that it will require 

a burdensome or exhaustive analysis to 

determine whether, qualitatively, such 

effects have occurred. If it is known that 

these detrimental effects have occurred, 

EPA believes that WRAP States should 

take this into account in the SIP 

revisions. 

E. Provisions Related to Time Period 

After 2018 

Proposed rule. In the proposal, EPA 

noted that the Annex did not attempt to 

address the fate of this program beyond 

calendar year 2018. In the proposal, 

EPA believed that it is reasonable for 

WRAP States and Tribes to defer until 

a later date any judgment on the specific 

levels of SO2 that can be achieved. 

Finally, in the proposal, EPA noted its 

belief that any actions that occur after 

2018 should not be allowed to increase 

SO2 emissions beyond the 2018 

milestone. Accordingly, EPA proposed 

to indicate in the language in Table 1 of 

the proposed rule that any milestone 

developed for years after 2018 must not 

allow increases over and above those for 

the year 2018. 

Public comments. One commenter, 

supported by two other commenters, 

believed that, because the WRAP Annex 

covers the period from 2003 to 2018, 

EPA’s approval of the Annex should not 

be dependent on what occurs after 2018. 

The EPA interprets this comment as 

requesting that the final rule be silent on 

the time period after 2018. The WRAP’s 

comments recommended that the 

language in Table 1 of the proposed rule 

be modified to read ‘‘no more than 

510,000 tons (480,000 tons if suspended 

smelters do not resume operation) 

unless the milestones are replaced with 

a different program that meets any 

BART and ‘reasonable progress’

requirements established in this rule.’’

Final rule. The EPA has incorporated 

language similar to that requested by the 

WRAP into Table 1. This ensures that 

the progress made by participating 

States and Tribes in addressing the 

visibility impairment will not be eroded 

in the event that the SIP revisions due 

in 2018 are not in place at the beginning 

of 2019. At the same time, this provision 

clearly indicates that this SIP revision is 

the expected means of addressing 

visibility after that date. 

F. Provisions Related to Indian Tribes 

Proposed Rule. Western Indian Tribes 

have been directly involved during the 

development of the GCVTC report and 

the subsequent development of the 

WRAP Annex report. Through this 

involvement, they have been able to 

ensure that unique issues of importance 

to Tribes have been carefully considered 

by all stakeholders. The Annex 

addresses issues of tribal interest, 

including a specific provision of the 

program for Tribes in the market trading 

program. The EPA believes that tribal 

participation is important for the 

success of the visibility protection 

program in the Western United States 

and reflected this in the proposed rule.

When developing the backstop 

trading program, the WRAP established 

a 20,000 ton allowance amount (called 

the ‘‘set-aside’’) to be allocated to 

Tribes. In the event that the backstop 

market trading program is triggered, the 

set-aside would be available to Tribes to 

either (1) allow for new source growth 

over and above the amounts allocated 

for new sources by the Annex; (2) sell 

for revenue; or (3) retire. Note that this 

set-aside amount is in addition to any 

allocations to individual sources within 

Indian Country. For example, if the 

Navajo Nation participates in the 

program, there would be an allocation 

for the Four Corners Power Plant and for 

the Navajo Power Plant, which are 

located on the Navajo Reservation. The 

WRAP’s backstop trading program 

includes within the overall milestones 

an amount for each such existing source 

in addition to the tribal set-aside. For 

more discussion of this issue, see 67 FR 

30438, May 6, 2002. 

In the proposal, EPA included the 

20,000 ton tribal set-aside as a 

requirement of the backstop trading 

program. In addition, EPA discussed in 

the preamble its views of EPA’s role 

with respect to allocation of the 20,000 

ton set-aside. In this discussion, EPA 

stated its view that allocation of the 

20,000 ton amount was not a critical 

short-term need, because the backstop 

trading program would be triggered, at 

the earliest, in the year 2009. The EPA 

indicated its expectation that Tribes will 

develop the method for allocating the 

20,000 tons, but that EPA will seek to 

provide assistance as necessary to 

facilitate the process. 

In the proposed rule, EPA reiterated 

its position that it will ‘‘pursue the 

principle of tribal ‘self government’ and 

will work with tribal governments on a 

‘government-to-government’ basis.’’ The 

CAA Amendments of 1990 added 

section 301(d) which authorizes EPA to 

‘‘treat Tribes as States’’ for the purposes 

of administering CAA programs. The 

EPA promulgated regulations 

implementing section 301(d) in the 

Tribal Authority Rule, which elaborates 

on EPA’s tribal policies, on February 12, 

1998, (63 FR 7254). For a more detailed 

discussion of EPA’s tribal policies, see 

the Tribal Authority Rule (63 FR 7254) 

and the proposed rule (67 FR 30418). 

Public Comments. The EPA received 

several comments relating to tribal 

issues, including the set-aside for Tribes 

in the market trading program and the 

need for providing assistance (such as 

developing a model TIP) to Indian 

Tribes. 

The WRAP’s comments agreed with 

the proposed language in 

§ 51.309(h)(4)(i) regarding the set-aside 

and added that the final rule should say 

that tribal participation in the market 

trading program would not be affected 

by States that do not choose to 

participate in the market trading 

program. The WRAP comments 

included an example: ‘‘if California opts 

out of the backstop trading program, all 

Tribes that are located in California may 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33779

still participate in the distribution of the 

tribal set-aside.’’ The WRAP also 

suggested that EPA make assistance in 

developing a TIP a high priority, and 

that EPA should develop a model 

implementation plan which could be 

appropriately modified and used by any 

Tribe choosing to participate in the 

market trading program. 

One commenter representing 

industrial sources located in Indian 

country expressed the concern that 

participation by Tribes with large 

stationary sources was important for the 

program to reach ‘‘critical mass.’’

Additionally, this commenter believed 

that EPA should work to serve the 

interests of sources located in Indian 

country by assisting the Tribes in 

developing a program under 40 CFR 

51.309. 

The WRAP’s comments agreed with 

EPA’s assessment that allocation of the 

20,000 ton tribal set-aside does not need 

to be completed in the near-term, and 

strongly agreed that the distribution of 

the set-aside should be determined by 

the Tribes and not EPA or the WRAP. 

However, the WRAP recommended that 

the final rule contain a provision that 

will require the determination of a 

method to allocate or manage the setaside by no later than 1 year after the 

market trading program is triggered. 

Final Rule. The EPA agrees with 

commenters regarding participation of 

Indian Tribes in the regional SO2

emissions reductions program. The EPA 

agrees that Tribes should be allowed to 

participate in the program and their 

participation is not dependent on the 

participation of the States that surround 

them. As stated in the Tribal Authority 

Rule (63 FR 7271)

[t]ribes * * * shall be treated in the same 

manner as states with respect to all 

provisions of the Clean Air Act and 

implementing regulations, except for those 

provisions identified in section 49.4 and the 

regulations that implement those provisions. 

(63 FR 7271).

Because the CAA provisions for the 

regional haze rule are not listed in 

section 49.4, Tribes should have the 

opportunity to be treated in the same 

manner as States for purposes of 

implementing 40 CFR 51.309. 

Accordingly, eligible Tribes may submit 

a plan regardless of the participation of 

neighboring States.

The EPA concurs with the comments 

regarding the importance of assisting 

Tribes in developing TIPs. As stated in 

the proposal, ‘‘For Tribes which choose 

to implement 40 CFR 51.309, EPA 

believes there are a number of ways that 

EPA can provide assistance.’’ The EPA 

will help those Tribes with major SO2

sources to comply with the pre-trigger 

emissions tracking requirements, and to 

assist Tribes interested in participating 

in the backstop trading program. To this 

end, EPA has met, or plans to meet, 

with all Tribes that have major SO2

sources. In these meetings, EPA is 

explaining the regional haze rules and 

options for participating in the SO2

reduction program. 

The EPA agrees with the WRAP’s 

comments that a model TIP could serve 

to facilitate implementation of the 

program in Indian country. The EPA 

will work with Tribes to further assess 

the needs for such a model TIP. The 

EPA also agrees with the WRAP’s 

recommendation to establish a 1-year 

deadline for allocation of the 20,000 ton 

set-aside, and we have added this 

language to the final rule. 

EPA is committed to protecting tribal 

air resources, building tribal air program 

capacity, and working with Tribes on a 

government-to-government basis. 

IV. Statutory and Executive Order 

Reviews 

In preparing any final rule, EPA must 

meet the administrative requirements 

contained in a number of statutes and 

executive orders. In this section of the 

preamble, we discuss how the final rule 

addresses these administrative 

requirements. Except where EPA 

committed in the proposal to further 

efforts, these discussions reflect EPA’s 

assessments for the proposed rule. No 

public comments were received 

regarding EPA’s proposed treatment of 

these administrative requirements. 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), EPA 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 

impacts 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 a ‘‘significant regulatory 

action.’’ As such, this action was 

submitted to OMB for review. Changes 

made in response to OMB suggestions or 

recommendations are documented in 

the public record. 

Today’s final rulemaking amends the 

regional haze rule by incorporating a 

specific set of SO2 emission targets for 

regionwide stationary sources of SO2

emissions for a nine-State region in the 

Western United States. The emission 

targets would affect and have potential 

economic impacts only for States 

choosing to participate in the optional 

program provided by 40 CFR 51.309 of 

the regional haze rule. The emissions 

reductions resulting from the program 

vary over the 2003 to 2018 time period. 

If all nine States participate in the 

program, the WRAP estimates that for 

the year 2018, SO2 emissions would be 

reduced from a projected baseline of 

612,000—642,200 tons to an enforceable 

milestone of 480,000—510,000 tons. If 

the milestones are not achieved through 

voluntary emissions reductions by the 

affected sources, then they will be 

achieved through an enforceable 

backstop market trading program. 

In order to understand the possible 

regulatory impacts of this rule, it is 

necessary to review the previous 

analysis that EPA completed for the 

entire regional haze program. In 1999, 

EPA prepared a Regulatory Impact 

Analysis (RIA) for the regional haze rule 

(see regional haze rule docket (A–95–

38)). In that RIA, EPA assessed the costs, 

economic impacts, and benefits for four 

illustrative progress goals, two sets of 

control strategies, two sets of 

assumptions for estimating benefits, and 

systems of nationally uniform progress 

goals versus regional varying progress 

goals (64 FR 35760, July 1, 1999). 

Because we had no way of predicting 

the visibility goals each State would 

pick under the regional haze rule 

requirements, we conducted an 

extensive analysis of eight ‘‘what if’’

scenarios. For each scenario, the RIA 

determined the control measures 

needed to achieve the given degree of 

visibility improvement and the 

associated costs. The RIA also presented 

results for six specific sub-regions, such 

as ‘‘Rocky Mountain,’’ ‘‘West,’’ and 

others. These emission reduction 

scenarios are provided in the RIA in 

Tables 6–7 and 6–8.

The EPA believes that some of the 

emissions reductions from the Annex 

provisions for stationary source SO2, 

assuming States choose this optional 40 

33780 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

9The number of power plants was obtained from 

‘‘Data Worksheets from ICF Consulting Detailing 

Utility Emissions Projections,’’ Item 3 in 

supplemental information transmitted to Tim 

Smith, EPA, from Patrick Cummins, WRAP. June 

29, 2001. The non-utility estimate was obtained 

from: Technical Support Documentation. Voluntary 

Emissions Reduction Program for Major Industrial 

Sources of Sulfur Dioxide in Nine Western States 

and a Backstop Market Trading Program. Section 

2.A. Revised Appendix A for the Pechan Report, 

table A–1.

10The EPA provides documentation of these 

estimates in a technical memorandum, ‘‘Size of 

Potentially Affected Entities Should the Western 

Regional Air Partnership States Choose to Adopt 

Regulations in Accordance with the Draft Proposed 

Rule Revising § 51.309(h).’’ Allen Basala, EPA, 

October 17, 2001. This memorandum is included in 

the docket for today’s final rule.

CFR 51.309 approach, may result from 

environmental obligations under the 

CAA. To the extent this is the case, the 

emissions reductions required the 

WRAP’s SO2 milestones and backstop 

trading program may have already been 

addressed in other regulatory impact 

analyses for those programs. 

The remainder of the emissions 

reductions resulting from the WRAP’s 

program for stationary source SO2

would be over and above those required 

to meet other environmental obligations. 

Where this is the case, we believe that 

the control costs and other potential 

economic consequences of achieving the 

reductions are reflected in the RIA for 

the 1999 regional haze rule. The range 

of results for the eight scenarios 

analyzed in the RIA resulted in 

predicted SO2 emissions reductions that 

are within the range of emissions 

reductions included in the Annex. Two 

of the eight scenarios resulted in 

284,000 tons of stationary source 

reductions in regions containing one or 

more of the WRAP Annex States. Five 

other scenarios include SO2 emissions 

reductions ranging from 95,000 to 

128,000 tons per year. Hence, the costs 

and benefits associated with the 

WRAP’s program are captured in the 

RIA for the 1999 final regional haze 

rule. 

The EPA received no public 

comments regarding Executive Order 

12866. 

B. Paperwork Reduction Act 

The information collection 

requirements in today’s rule have been 

submitted to OMB under the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq.

An Information Collection Request (ICR) 

document has been prepared by EPA 

(ICR No. 1813.05) and a copy may be 

obtained from Susan Auby, by mail at 

Office of Environmental Information—

Information Strategies Branch, U.S. EPA 

(2822T), 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460, by e-mail 

at auby.susan@epa.gov, or by calling 

(202) 566–1672. A copy may also be 

downloaded off the Internet at http://

www.epa.gov/icr.

The EPA has prepared burden 

estimates for the specific burden 

impacts of today’s rule. These burden 

estimates are calculated using the 

assumption that seven eligible States 

and four tribes would participate in the 

program. The results of the calculations 

indicate 16,100 hours to 19,990 hours 

for affected sources, 14,010 to 14,430 

hours for States, 2,520 to 2,600 hours for 

Tribes, 1,305 to 1,375 hours for the 

Federal government, and 240 hours for 

regional planning organizations. 

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 use 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 are listed in 40 CFR 

part 9 and 48 CFR chapter 15. 

The EPA sought comments on EPA’s 

need for this information, the accuracy 

of the provided burden estimates, and 

any suggested methods for minimizing 

respondent burden. The EPA received 

no comments regarding the burden or 

the Paperwork Reduction Act as it 

applies to today’s rulemaking. 

C. Regulatory Flexibility Act 

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 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 purposes of assessing the impacts 

of today’s rulemaking on small entities, 

small entity is defined as: (1) A small 

business that is a small industrial entity 

as defined in the U.S. Small Business 

Administration (SBA) size standards (as 

discussed on the SBA Web site at

http://www.sba.gov/size/

indextableofsize.html); (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 is independently 

owned and operated and is not 

dominant in its field.

After considering the potential for 

economic impacts of today’s rule on 

small entities, I certify that today’s rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Today’s rule amends the 

requirements of the regional haze 

program to provide nine Western States 

and a number of Tribes with an optional 

method for complying with the 

requirements of the CAA. No State or 

Tribe is required to submit an 

implementation plan meeting its 

requirements. For States or Tribes that 

choose to submit an implementation 

plan under this optional program, 

however, today’s rule requires those 

States and/or Tribes to meet a series of 

regional SO2 emission milestones. The 

EPA will determine whether these 

milestones are met based on the actual 

emissions from stationary sources with 

SO2 emissions of more than 100 tons per 

year. From data EPA obtained from the 

WRAP’s Web site, it appears that there 

are 194 establishments meeting the 100 

tons per year of SO2 criterion for this 

program, including 39 utility power 

plants, and 155 non-utility sources.9

The vast majority of these 

establishments—which include sources 

such as power plant boilers, copper 

smelters, chemical plants, petroleum 

refineries, natural gas production plants, 

large manufacturing operations, mills—

are not small entities. The EPA 

estimates that 12 facilities are likely to 

be owned by small entities, and 164 are 

owned by entities that are not small. 

The EPA has been unable to determine 

the size of 16 entities that own 18 of the 

establishments.10 Even if all 18 were 

determined to be owned by small 

entities, and all nine States and those 

Tribes with covered sources adopted the 

optional approach to complying with 

the visibility requirements of the CAA, 

less than 30 small entities would be 

potentially affected by this rule.

The goal of the WRAP is for the 

regional SO2 milestones established by 

the rule to be met through voluntary 

measures and EPA believes that 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33781

participating States and Tribes may be 

able to meet the milestones through 

such measures. However, as a backstop 

in the event the milestones are not met 

in this manner, today’s rule requires the 

implementation of a market trading 

program to ensure that emissions in the 

relevant region do not exceed the 

milestones. Today’s rule gives the States 

and Tribes the discretion to allocate 

emissions credits to sources, as the 

States and Tribes determine 

appropriate. Ultimately, the impact on 

small entities will not be determined by 

this rule, but rather by how the relevant 

State or Tribe exercises its discretion in 

adopting the optional program and 

allocating emissions credits. We 

encourage States and Tribes to consider 

the impact of its market trading program 

on small entities. Nonetheless, EPA 

believes that no more than 28 small 

entities will be affected by this rule, and 

most likely less, given that EPA does not 

anticipate that all nine States with the 

option to participate in this program 

will do so. We did not receive any 

public comments regarding the RFA or 

the Small Business Regulatory 

Enforcement Fairness Act of 1996. The 

EPA continues to believe that today’s 

rulemaking will not have a significant 

economic impact on a substantial 

number of small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

(UMRA), 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, 

2 U.S.C. 1532, EPA generally must 

prepare a written statement, including a 

cost-benefit analysis, for any proposed 

or final rule that ‘‘includes any Federal 

mandate that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

* * * in any one year.’’ A ‘‘Federal 

mandate’’ is defined under section 

421(6), 2 U.S.C. 658(6), to include a 

‘‘Federal intergovernmental mandate’’

and a ‘‘Federal private sector mandate.’’

A ‘‘Federal intergovernmental 

mandate,’’ in turn, is defined to include 

a regulation that ‘‘would impose an 

enforceable duty upon State, local, or 

tribal governments,’’ section 

421(5)(A)(i), 2 U.S.C. 658(5)(A)(i), 

except for, among other things, a duty 

that is ‘‘a condition of Federal 

assistance,’’ section 421(5)(A)(i)(I). A 

‘‘Federal private sector mandate’’

includes a regulation that ‘‘would 

impose an enforceable duty upon the 

private sector,’’ with certain exceptions, 

section 421(7)(A), 2 U.S.C. 658(7)(A). 

Before promulgating an EPA rule for 

which a written statement is needed 

under section 202 of the UMRA, section 

205, 2 U.S.C. 1535, 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.

By incorporating into the regional 

haze rule the provisions of the Annex 

for a voluntary emissions reductions 

program and backstop trading program, 

EPA is not directly establishing any 

regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments. The entire program under 

40 CFR 51.309, including today’s 

amendments, is an option that each of 

the States may choose to exercise. The 

program is not required and thus is 

clearly not a ‘‘mandate.’’ Thus, EPA is 

not obligated to develop a small 

government agency plan, as required 

under section 203 of UMRA. 

The EPA also believes that because 

today’s rule provides those States 

potentially subject to the rule with 

substantial flexibility, today’s rule meets 

the UMRA requirement in section 205 to 

select the least costly and burdensome 

alternative in light of the statutory 

mandate for SIPs for visibility 

protection that address BART. Today’s 

rule provides States and sources with 

the flexibility to achieve regional SO2

reductions in a way that is both cost and 

administratively effective. Sources are 

given the opportunity to achieve 

voluntary reductions. If such reductions 

do not occur, then the rule provides for 

the establishment of a trading program 

to achieve targeted emissions 

reductions. If a trading program is 

implemented, sources have the 

flexibility to buy and sell allowances in 

order to reach emissions reductions 

milestones in the most cost-effective 

way. Today’s rule, therefore, inherently 

provides for adoption of the least costly, 

most-cost effective, and leastburdensome alternative that achieves 

the objective of this rule. 

The EPA believes that this rulemaking 

is not subject to the requirements of 

UMRA. For regional haze SIPs overall, 

it is questionable whether a requirement 

to submit a SIP revision constitutes a 

Federal mandate, as discussed in the 

preamble to the regional haze rule, (64 

FR 35761, July 1, 1999). However, 

today’s rule contains no Federal 

mandates (under the regulatory 

provisions of title II of the UMRA) for 

States, local, or tribal governments or 

the private sector. The program 

contained in 40 CFR 51.309, including 

today’s rule, is an optional program. 

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.’’

Under section 6(b) of Executive Order 

13132, EPA may not issue a regulation 

that has federalism implications, that 

imposes substantial direct compliance 

costs, and that is not required by statute, 

unless the Federal government provides 

the funds necessary to pay the direct 

compliance costs incurred by State and 

local governments, or EPA consults with 

State and local officials early in the 

process of developing a regulation. 

Under section 6(c) of Executive Order 

13132, EPA may not issue a regulation 

that has federalism implications and 

that preempts State law, unless EPA 

consults with State and local officials 

early in the process of developing the 

regulation. 

Today’s 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. As an optional 

program, today’s rule will not directly 

impose significant new requirements on 

State and local governments. In 

addition, even if today’s rule did have 

federalism implications, it will not 

impose substantial direct compliance 

costs on State or local governments, nor 

will it preempt State law. 

Consistent with EPA policy, we 

nonetheless consulted with State and 

local officials early in the process of 

developing this regulation, to provide 

them with an opportunity for 

meaningful and timely input into its 

development. These consultations 

included a working meeting with State 

and local officials and numerous 

discussions with committees and 

forums of the WRAP. In the spirit of 

Executive Order 13132 and consistent 

with EPA policy to promote 

33782 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

communications between EPA and State 

and local governments, EPA specifically 

solicited comment on today’s rule from 

State and local officials. We received no 

comments regarding this executive 

order from State and local officials or 

any other public commenters. 

As required by section 8(a) of 

Executive Order 13132, EPA included a 

certification from its Federalism Official 

stating that EPA had met the Executive 

Order’s requirements in a meaningful 

and timely manner, when it sent the 

draft of this final rule to OMB for review 

pursuant to Executive Order 12866. A 

copy of this certification has been 

included in the public version of the 

official record for this final 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 6, 2000), requires EPA 

to, among other things, ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

executive order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian Tribes, on the 

relationship between the Federal 

government and Indian Tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian Tribes.’’

Under section 5(b) of Executive Order 

13175, EPA may not issue a regulation 

that has tribal implications, that 

imposes substantial direct compliance 

costs, and that is not required by statute, 

unless the Federal government provides 

the funds necessary to pay the direct 

compliance costs incurred by tribal 

governments, or EPA consults tribal 

officials early in the process of 

developing today’s regulation. Under 

section 5(c) of the Executive Order, EPA 

may not issue a regulation that has tribal 

implications and that preempts tribal 

law, unless EPA consults with tribal 

officials early in the process of 

developing today’s regulation. 

Today’s rule may have tribal 

implications, but we believe that it will 

neither impose substantial direct 

compliance costs on the Tribes nor 

preempt tribal law. The EPA sought 

input from potentially affected Tribes 

before reaching a conclusion on whether 

this rule will have tribal implications. 

This was due, in a large part, to the 

voluntary nature of this program and the 

uncertainty of potential impacts on 

Tribes in the event a State or Tribe 

chooses to participate in the program. 

Possible impacts on Tribes choosing to 

opt into this program are discussed 

above in unit III of this preamble. 

The EPA notes that the WRAP 

consulted extensively with tribal 

representatives in the development of 

the Annex, the document which 

provided the basis for today’s 

rulemaking. The Annex provides 

recognition of Tribes throughout the 

document and there is a specific 

discussion of tribal issues in 

Attachment F of the Annex. Today’s 

rulemaking closely mirrors the 

recommendations of the WRAP and 

therefore reflects discussions between 

the WRAP and Western Tribes.

In keeping with EPA policies 

regarding Tribes and Executive Order 

13175, prior to the issuance of the final 

rule, EPA provided additional 

opportunities for consultation with 

tribal officials or authorized 

representatives of tribal governments on 

the potential impacts of today’s rule on 

Tribes. After consulting with a tribal 

representative, EPA provided Tribes 

with several opportunities to provide 

comments on today’s rulemaking. 

During the public comment period, EPA 

met with tribal environmental staff at 

tribal environmental forums in Portland, 

Oregon and Sparks, Nevada. Also, 

during the public comment period, EPA 

sent letters to all Western Tribes 

describing the regional haze rules and, 

in particular, today’s rule, alerting them 

to the public comment period and 

seeking their opinions on the 

rulemaking. Finally, EPA staff met with 

Tribes in the Western United States, that 

have sources located on their tribal 

lands, with sources potentially subject 

to BART requirements. Although EPA 

did receive public comments on Tribal 

issues, we did not receive any public 

comments specific to this executive 

order. 

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 a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the EPA 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 EPA. The EPA interprets 

Executive Order 13045 as applying only 

to those regulatory actions that are 

based on health or safety risks, such that 

the analysis required under 5–501 of the 

Order has the potential to influence the 

regulation. Today’s rule to codify the 

SO2 emission reduction program is not 

subject to Executive Order 13045 

because it does not establish an 

environmental standard intended to 

mitigate health or safety risk. There 

were no public comments received 

pertaining to this executive order. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211, ‘‘Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ (66 FR 28355, 

May 22, 2001), provides that agencies 

shall prepare and submit to the 

Administrator of the Office of 

Information and Regulatory Affairs, 

OMB, a Statement of Energy Effects for 

certain actions identified as ‘‘significant 

energy actions.’’ Section 4(b) of 

Executive Order 13211 defines 

‘‘significant energy actions’’ as ‘‘any 

action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action.’’ Under 

Executive Order 13211, a Statement of 

Energy Effects is a detailed statement by 

the agency responsible for the 

significant energy action relating to: (i) 

Any adverse effects on energy supply, 

distribution, or use including a shortfall 

in supply, price increases, and 

increased use of foreign supplies should 

the proposal or rule be implemented, 

and (ii) reasonable alternatives to the 

action with adverse energy effects and 

the expected effects of such alternatives 

on energy supply, distribution, and use. 

While this rulemaking is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, EPA has 

determined that this rulemaking is not 

a significant energy action because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. In today’s rule, if States chose 

to implement the option provided by 40 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33783

11 ICF consulting, Final Report on Regional 

Economic Impacts of Annex. Transmitted to Tim 

Smith, EPA/OAQPS by Patrick Cummins, WRAP 

Co-Project Manager, June 29, 2001.

12Memorandum from Jim Souby to Staff Council, 

State Environmental Directors and State Air 

Directors, ‘‘Energy and Air Quality Issues.’’

February 23, 2001.

13Technical Memorandum, ‘‘Analysis of New 

Coal-Fired Power Plants Under the Proposed Sulfur 

Dioxide Emission Reduction Milestones for the 

Nine-State Grand Canyon Visibility Transport 

Region.’’ February 22, 2001.

CFR 51.309, this would lead to a 

regional reduction in SO2 emissions in 

order to meet the WRAP’s SO2

milestones for the 2003–2018 time 

period. The WRAP’s analysis of the 

program’s requirements results in the 

following projections: 11

• No reduction in crude oil supply; 

• No reduction in fuel production; 

• 0.0 percent to 0.2 percent increase 

in wholesale electricity prices in 2018; 

• Production cuts in coal in the 

Western States balanced by increases in 

coal production in the Appalachian 

region; 

• No increase in energy distribution 

costs; 

• No significantly increased 

dependence on foreign supplies of 

energy;

• Adverse impacts on employment, 

gross regional product, and real 

disposable incomes in the affected 

Western States of less than 0.05 percent 

in 2018; 

• Room for new sources of electrical 

generating capacity within the target 

SO2 emission levels. 

Given the particular concern in the 

West regarding needed electrical 

generating capacity, EPA believes it 

important to note the WGA statement 

that ‘‘the conclusion [* * * of their 

analysis * * *] is that sulfur dioxide 

emissions reductions milestones should 

in no way impede the construction of 

new coal-fired power plants in the 

West 12 ***’’

Furthermore, an assessment by WGA 

of the effects of the WRAP Annex 

indicates that it is possible to build 7000 

megawatts or more of new coal-fired 

generation at any time between 2001 

and 2018 without exceeding the SO2

emission milestones in the Annex.13

However, the amount of megawatts that 

could be built is affected by analytical 

assumptions regarding fuel mix and 

quality, capacity utilization, control 

levels, and the demarcation of fuel use 

regions. Additional scenarios included 

in the WGA analysis show that there 

could be room for 19,000 megawatts of 

generation capacity.

The EPA believes that the program 

contained in the Annex and in today’s 

rule will not result in energy reduction 

of 500 or more megawatts installed 

production capacity. Under this 

program, considerable flexibility is 

afforded to electricity generators on how 

to comply with the program. Even if the 

trading program is triggered and sources 

must comply with allowances, we 

believe that the least-cost solutions 

afforded by the trading program, and the 

ability to secure emissions reductions 

from other sources, will make it very 

unlikely that the program would lead to 

plant shutdowns. The EPA did not 

receive any public comments 

specifically addressing this executive 

order or EPA’s findings. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (‘‘NTTAA’’), Public Law 104–

113, section 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards 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 voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

However, today’s rule does not 

incorporate any requirements to use any 

particular technical standards, such as 

specific measurement or monitoring 

techniques. Therefore, EPA is not 

considering the use of any voluntary 

consensus standards in this rulemaking. 

Today’s rule does require States to 

develop emissions quantification 

protocols and monitoring procedures for 

their SIPs as part of the market trading 

program. However, EPA generally defers 

to the choices the States make in their 

SIPs when the CAA does not prescribe 

requirements, so EPA is not requiring 

the use of specific, prescribed 

techniques, or methods in those SIPs. 

Nevertheless, while EPA believes that it 

is not necessary to consider the use of 

any voluntary consensus standards for 

this proposal, we will encourage States 

and Tribes to consider the use of such 

standards in the development of these 

protocols. The EPA did not receive any 

public comments concerning this 

executive order.

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, disproportionately high 

and adverse human health or 

environmental effects of its programs, 

policies, and activities on minorities 

and low-income populations. 

The EPA believes that today’s rule 

should not raise any environmental 

justice issues. The overall result of the 

program is regional reductions in SO2. 

Because this program would likely 

reduce regional and local SO2 levels in 

the air and because there are separate 

programs under the CAA to ensure that 

SO2 levels do not exceed national 

ambient air quality standards, it appears 

unlikely that this program would permit 

any adverse affects on local populations. 

The EPA did not receive any public 

comments regarding this executive 

order. 

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 U.S. 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 U.S. 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 a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective on 

August 4, 2003.

List of Subjects in 40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Carbon monoxide, 

Nitrogen oxides, Particulate matter, 

Sulfur dioxide, Volatile organic 

compounds.

Dated: May 21, 2003. 

Christine Todd Whitman, 

Administrator.

■ For the reasons set forth in the 

preamble, part 51 of chapter I of title 40 

of the Code of Federal Regulations is 

amended as follows:

33784 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS

Subpart P—Protection of Visibility

■ 1. The authority citation for part 51 

continues to read as follows:

Authority: 42 U.S.C. 7410–7671q.

■ 2. Section 51.309 is amended by:

■ a. Revising paragraph (b)(5).

■ b. Adding paragraphs (b)(8), (b)(9), 

(b)(10), (b)(11), (b)(12) and (b)(13).

■ c. Revising paragraph (c).

■ d. Revising paragraphs 

(d)(4)(i)through(d)(4)(iv).

■ e. Revising paragraph (f)(1)(i) and 

(f)(3).

■ f. Adding paragraph (h).

The revisions and additions read as 

follows:

§ 51.309 Requirements related to the 

Grand Canyon Visibility Transport 

Commission.

* * * * *

(b) * * * 

(5) Milestone means the maximum 

level of annual regional sulfur dioxide 

emissions for a given year, assessed 

annually consistent with paragraph 

(h)(2) of this section beginning in the 

year 2003.

* * * * *

(8) Base year means the year, 

generally a year between 1996 and 1998, 

for which data for a source included 

within the program were used by the 

WRAP to calculate base year emissions 

as a starting point for development of 

the Annex required by paragraph (f) of 

this section. 

(9) Forecast means the process used 

by the WRAP to predict future 

emissions for purposes of developing 

the milestones required by paragraph (f) 

of this section. 

(10) Reforecast means a corrected 

forecast, based upon reapplication of the 

forecasting process after correction of 

base year emissions estimates. 

(11) BHP San Manuel means: 

(i) the copper smelter located in San 

Manuel, Arizona which operated during 

1990, but whose operations were 

suspended during the year 2000, 

(ii) The same smelter in the event of 

a change of name or ownership. 

(12) Phelps Dodge Hidalgo means: 

(i) The copper smelter located in 

Hidalgo, New Mexico which operated 

during 1990, but whose operations were 

suspended during the year 2000,

(ii) the same smelter in the event of 

a change of name or ownership. 

(13) Eligible renewable energy 

resource, for purposes of 40 CFR 51.309, 

means electricity generated by nonnuclear and non-fossil low or no air 

emission technologies. 

(c) Implementation Plan Schedule.

Each Transport Region State may meet 

the requirements of § 51.308(b) through 

(e) by submitting an implementation 

plan that complies with the 

requirements of this section. Each 

Transport Region State must submit an 

implementation plan addressing 

regional haze visibility impairment in 

the 16 Class I areas no later than 

December 31, 2003. Indian Tribes may 

submit implementation plans after the 

December 31, 2003 deadline. A 

Transport Region State that does not 

submit an implementation plan that 

complies with the requirements of this 

section (or whose plan does not comply 

with all of the requirements of this 

section) is subject to the requirements of 

§ 51.308 in the same manner and to the 

same extent as any State not included 

within the Transport Region.

* * * * *

(d) * * *

(4) * * *

(i) Sulfur dioxide milestones 

consistent with paragraph (h)(1) of this 

section. 

(ii) Monitoring and reporting of sulfur 

dioxide emissions. The plan submission 

must include provisions requiring the 

annual monitoring and reporting of 

actual stationary source sulfur dioxide 

emissions within the State. The 

monitoring and reporting data must be 

sufficient to determine whether a 13 

percent reduction in actual emissions 

has occurred between the years 1990 

and 2000, and for determining annually 

whether the milestone for each year 

between 2003 and 2018 is exceeded, 

consistent with paragraph (h) (2) of this 

section. The plan submission must 

provide for reporting of these data by 

the State to the Administrator and to the 

regional planning organization 

consistent with paragraph (h)(2) of this 

section. 

(iii) Criteria and Procedures for a 

Market Trading Program. The plan must 

include the criteria and procedures for 

activating a market trading program 

consistent with paragraphs (h)(3) and 

(h)(4) of this section. The plan must also 

provide for implementation plan 

assessments of the program in the years 

2008, 2013, and 2018. 

(iv) Provisions for market trading 

program compliance reporting 

consistent with paragraph (h)(4) of this 

section.

* * * * *

(f) * * *

(1) * * *

(i) The annex must contain 

quantitative emissions milestones for 

stationary source sulfur dioxide 

emissions for the reporting years 2003, 

2008, 2013 and 2018. The milestones 

must provide for steady and continuing 

emissions reductions for the 2003–2018 

time period consistent with the 

Commission’s definition of reasonable 

progress, its goal of 50 to 70 percent 

reduction in sulfur dioxide emissions 

from 1990 actual emission levels by 

2040, applicable requirements under the 

CAA, and the timing of implementation 

plan assessments of progress and 

identification of deficiencies which will 

be due in the years 2008, 2013, and 

2018. The milestones must be shown to 

provide for greater reasonable progress 

than would be achieved by application 

of best available retrofit technology 

(BART) pursuant to § 51.308(e)(2) and 

would be approvable in lieu of BART. 

(2) * * *

(3) The EPA will publish the annex 

upon receipt. If EPA finds that the 

annex meets the requirements of 

paragraph (f)(1) of this section and 

assures reasonable progress, then, after 

public notice and comment, EPA will 

amend the requirements of this section 

to incorporate the provisions of the 

annex. If EPA finds that the annex does 

not meet the requirements of paragraph 

(f)(1) of this section, or does not assure 

reasonable progress, or if EPA finds that 

the annex is not received, then each 

Transport Region State must submit an 

implementation plan for regional haze 

meeting all of the requirements of 

§ 51.308.

* * * * *

(h) Emissions Reduction Program for 

Major Industrial Sources of Sulfur 

Dioxide. The first implementation plan 

submission must include a stationary 

source emissions reductions program for 

major industrial sources of sulfur 

dioxide that meets the following 

requirements: 

(1) Regional sulfur dioxide 

milestones. The plan must include the 

milestones in Table 1, and provide for 

the adjustments in paragraphs (h)(1)(i) 

through (iv) of this section. Table 1 

follows:

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33785

TABLE 1.—SULFUR DIOXIDE EMISSIONS MILESTONES

Column 1 Column 2 Column 3 Column 4 

For the year . . . 

. . . if BHP San Manuel and Phelps 

Dodge Hidalgo resume operation, 

the maximum regional sulfur dioxide 

milestone is . . . 

. . . if neither BHP San Manuel nor 

Phelps Dodge Hidalgo resumes operation, the minimum regional sulfur 

dioxide milestone is . . . 

. . . and the emission inventories 

for these years will determine 

whether emissions are greater than 

or less than the milestone: 

2003 ...................................... 720,000 tons .................................... 682,000 tons .................................... 2003. 

2004 ...................................... 720,000 tons .................................... 682,000 tons .................................... Average of 2003 and 2004. 

2005 ...................................... 720,000 tons .................................... 682,000 tons .................................... Average of 2003, 2004 and 2005. 

2006 ...................................... 720,000 tons .................................... 682,000 tons .................................... Average of 2004, 2005 and 2006. 

2007 ...................................... 720,000 tons .................................... 682,000 tons .................................... Average of 2005, 2006 and 2007. 

2008 ...................................... 718,333 tons .................................... 680,333 tons .................................... Average of 2006, 2007 and 2008. 

2009 ...................................... 716,667 tons .................................... 678,667 tons .................................... Average of 2007, 2008 and 2009. 

2010 ...................................... 715,000 tons .................................... 677,000 tons .................................... Average of 2008, 2009 and 2010. 

2011 ...................................... 715,000 tons .................................... 677,000 tons .................................... Average of 2009, 2010 and 2011. 

2012 ...................................... 715,000 tons .................................... 677,000 tons .................................... Average of 2010, 2011 and 2012. 

2013 ...................................... 695,000 tons .................................... 659,667 tons .................................... Average of 2011, 2012 and 2013. 

2014 ...................................... 675,000 tons .................................... 642,333 tons .................................... Average of 2012, 2013 and 2014. 

2015 ...................................... 655,000 tons .................................... 625,000 tons .................................... Average of 2013, 2014 and 2015. 

2016 ...................................... 655,000 tons .................................... 625,000 tons .................................... Average of 2014, 2015 and 2016. 

2017 ...................................... 655,000 tons .................................... 625,000 tons .................................... Average of 2015, 2016 and 2017. 

2018 ...................................... 510,000 tons .................................... 480,000 tons .................................... Year 2018 only. 

Each year after 2018 ............ no more than 510,000 tons unless 

the milestones are replaced with 

a different program that meets 

any BART and reasonable 

progress requirements established in § 51.309.

no more than 480,000 tons unless 

the milestones are replaced with 

a different program that meets 

any BART and reasonable 

progress requirements established in § 51.309.

3-year average of the year and the 

two previous years, or any alternative provided in any future plan 

revisions under § 51.308(f). 

(i) Adjustment for States and Tribes 

Which Choose Not to Participate in the 

Program, and for Tribes that opt into the 

program after the 2003 deadline. If a 

State or Tribe chooses not to submit an 

implementation plan under the option 

provided in § 51.309, or if EPA has not 

approved a State or Tribe’s 

implementation plan by the date of the 

draft determination required by 

§ 51.309(h)(3)(ii), the amounts for that 

State or Tribe which are listed in Table 

2 must be subtracted from the 

milestones that are included in the 

implementation plans for the remaining 

States and Tribes. For Tribes that opt 

into the program after 2003, the 

amounts in Table 2 or 4 will be 

automatically added to the milestones 

that are included in the implementation 

plans for the participating States and 

Tribes, beginning with the first year 

after the tribal implementation plan 

implementing § 51.309 is approved by 

the Administrator. The amounts listed 

in Table 2 are for purposes of adjusting 

the milestones only, and they do not 

represent amounts that must be 

allocated under any future trading 

program. Table 2 follows:

TABLE 2.—AMOUNTS SUBTRACTED FROM THE MILESTONES FOR STATES AND TRIBES WHICH DO NOT EXERCISE THE

OPTION PROVIDED BY § 51.309 

State or tribe 2003 2004 2005 2006 2007 2008 2009 2010

1. Arizona ......................... 117,372 117,372 117,372 117,372 117,372 117,941 118,511 119,080

2. California ...................... 37,343 37,343 37,343 37,784 37,343 36,363 35,382 34,402

3. Colorado ...................... 98,897 98,897 98,897 98,897 98,897 98,443 97,991 97,537

4. Idaho ............................ 18,016 18,016 18,016 18,016 18,016 17,482 16,948 16,414

5. Nevada ......................... 20,187 20,187 20,187 20,187 20,187 20,282 20,379 20,474

6. New Mexico ................. 84,624 84,624 84,624 84,624 84,624 84,143 83,663 83,182

7. Oregon ......................... 26,268 26,268 26,268 26,268 26,268 26,284 26,300 26,316

8. Utah ............................. 42,782 42,782 42,782 42,782 42,782 42,795 42,806 42,819

9. Wyoming ...................... 155,858 155,858 155,858 155,858 155,858 155,851 155,843 155,836

10. Navajo Nation ............ 53,147 53,147 53,147 53,147 53,147 53,240 53,334 53,427

11. Shoshone-Bannock 

Tribe of the Fort Hall 

Reservation .................. 4,994 4,994 4,994 4,994 4,994 4,994 4,994 4,994

12. Ute Indian Tribe of the 

Uintahand Ouray Reservation ......................... 1,129 1,129 1,129 1,129 1,129 1,131 1,133 1,135

13. Wind River Reservation ................................ 1,384 1,384 1,384 1,384 1,384 1,384 1,384 1,384

State or tribe 2011 2012 2013 2014 2015 2016 2017 2018

1. Arizona ......................... 119,080 119,080 116,053 113,025 109,998 109,998 109,998 82,302

2. California ...................... 34,402 34,402 33,265 32,128 30,991 30,991 30,991 27,491

3. Colorado ...................... 97,537 97,537 94,456 91,375 88,294 88,294 88,294 57,675

4. Idaho ............................ 16,414 16,414 15,805 15,197 14,588 14,588 14,588 13,227

33786 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

State or tribe 2011 2012 2013 2014 2015 2016 2017 2018

5. Nevada ......................... 20,474 20,474 20,466 20,457 20,449 20,449 20,449 20,232

6. New Mexico ................. 83,182 83,182 81,682 80,182 78,682 78,682 78,682 70,000

7. Oregon ......................... 26,316 26,316 24,796 23,277 21,757 21,757 21,757 8,281

8. Utah ............................. 42,819 42,819 41,692 40,563 39,436 39,436 39,436 30,746

9. Wyoming ...................... 155,836 155,836 151,232 146,629 142,025 142,025 142,025 97,758

10. Navajo Nation ............ 53,427 53,427 52,707 51,986 51,266 51,266 51,266 44,772

11. Shoshone-Bannock 

Tribe of the Fort Hall 

Reservation .................. 4,994 4,994 4,994 4,994 4,994 4,994 4,994 4,994

12. Ute Indian Tribe of the 

Uintahand Ouray Reservation ......................... 1,135 1,135 1,135 1,135 1,135 1,135 1,135 1,135

13. Northern Arapaho and 

Shoshone Tribes of the 

Wind River Reservation 1,384 1,384 1,384 1,384 1,384 1,384 1,384 1,384

(ii) Adjustment for Future Operation 

of Copper Smelters. 

(A) The plan must provide for 

adjustments to the milestones in the 

event that Phelps Dodge Hidalgo and/or 

BHP San Manuel resume operations or 

that other smelters increase their 

operations. 

(B) The plan must provide for 

adjustments to the milestones according 

to Tables 3a and 3b except that if either 

the Hidalgo or San Manuel smelters 

resumes operation and is required to 

obtain a permit under 40 CFR 52.21 or 

40 CFR 51.166, the adjustment to the 

milestone must be based upon the levels 

allowed by the permit. In no instance 

may the adjustment to the milestone be 

greater than 22,000 tons for the Phelps 

Dodge Hidalgo, greater than 16,000 tons 

for BHP San Manuel, or more than 

30,000 tons for the combination of the 

Phelps Dodge Hidalgo and BHP San 

Manuel smelters for the years 2013 

through 2018. Tables 3a and 3b follow:

TABLE 3A.—ADJUSTMENTS TO THE MILESTONES FOR FUTURE OPERATIONS OF COPPER SMELTERS

Scenario If this happens . . . and this happens . . . 

. . . then you calculate the milestone by adding this amount to the value in column 3 of 

Table 1

1 ..................... Phelps Dodge Hidalgo resumes operation, but BHP 

San Manuel does not.

Phelps Dodge Hidalgo resumes production 

consistent with past operations and emissions.

A. Beginning with the year that production resumes, and for each year up to the year 

2012, the milestone increases by: 

(1) 22,000 tons PLUS 

(2) Any amounts identified in Table 3b. 

B. For the years 2013 through 2018, the milestone increases by this amount or by 

30,000 tons, whichever is less. 

2 ..................... Phelps Dodge Hidalgo resumes operation, but BHP 

San Manuel does not.

Phelps Dodge Hidalgo resumes operation in 

a substantially different manner such that 

emissions will be less than for past operations (an example would be running only 

one portion of the plant to produce sulfur 

acid only).

A. Beginning with the year that production resumes, and for each year up to the year 

2012, the milestone increases by: 

(1) Expected emissions for Phelps Dodge Hidalgo (not to exceed 22,000 tons), PLUS 

(2) Any amounts identified in Table 3b. 

B. For the years 2013 through 2018, the milestone increases by this amount or by 

30,000 tons, whichever is less. 

3 ..................... BHP San Manuel Manuel resumes operation, but 

Phelps Dodge Hidalgo does 

not.

BHP San Manuel resumes production consistent with past operations and emissions.A. 16,000 tons PLUS 

B. Any amounts identified in Table 3b. 

4 ..................... BHP San Manuel resumes operation, but Phelps Dodge 

Hidalgo does not.

BHP San Manuel resumes operations in a 

substantially different manner such that 

emissions will be less than for past operations (an example would be running only 

one portion of the plant to produce sulfur 

acid only).

A. Expected emissions for BHP (not to exceed 16,000 tons) PLUS 

B. Any amounts identified in Table 3b. 

5 ..................... Both Phelps Dodge Hidalgo 

and BHP San Manuel resume operations.

Both smelters resume production consistent 

with past operations and emissions.

A. Beginning with the year that production resumes, and for each year up to the year 

2012, the milestone increase by 38,000 

tons. 

B. For the years 2013 through 2018, the milestone increases by 30,000 tons. 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33787

TABLE 3A.—ADJUSTMENTS TO THE MILESTONES FOR FUTURE OPERATIONS OF COPPER SMELTERS—Continued

Scenario If this happens . . . and this happens . . . 

. . . then you calculate the milestone by adding this amount to the value in column 3 of 

Table 1

6 ..................... Both Phelps Dodge Hidalgo 

and BHP San Manuel resume operations.

Phelps Dodge Hidalgo resumes production 

consistent with past operations and emissions, but BHP San Manuel resumes operations in a substantially different manner 

such that emissions will be less than for 

past operations (an example would be running only one portion of the plant to 

produce sulfur acid only).

A. For the year that production resumes, and 

for each year up to the year 2012, the milestone increases by: 

(1) 22,000 PLUS 

(2) Expected emissions for San Manuel (not 

to exceed 16,000 tons). 

B. For the years 2013 though 2018, the milestone increases by this same amount, or by 

30,000 tons, whichever is less. 

7 ..................... Both Phelps Dodge Hidalgo 

and BHP San Manuel resumes operations.

BHP San Manuel resume production consistent with the past operations and emissions, but Phelps Dodge Hidalgo resumes 

operations in a substantially different manner such that emissions will be less than 

for past operations (an example would be 

running only one portion of the plant to 

produce sulfur acid only).

A. For the year that production resumes, and 

for each year up to the year 2012, milestone increases by: 

(1) 16,000 PLUS 

(2) Expected Hidalgo emissions (not to exceed 22,000 tons). 

B. For the years 2013 though 2018, the milestone increases by this same amount, or by 

30,000 tons, whichever is less. 

8 ..................... Both Phelps Dodge Hidalgo 

and BHP San Manuel do 

not resume operations.

.......................................................................... A. Any amounts identified in Table 3b. 

TABLE 3B.—ADJUSTMENTS FOR CERTAIN COPPER SMELTERS WHICH OPERATE ABOVE BASELINE LEVELS

[In tons] 

Where it applies in table 3a, if the following smelter . . . 

complies with 

existing permits but has 

actual annual 

emissions that 

exceed the following baseline level . . . 

. . . the milestone increases by the 

difference between actual 

emissions and 

the baseline 

level, or the 

following 

amount, 

whichever is 

less 

Asarco Hayden ........................................................................................................................................................ 23,000 3,000 

BHP San Manuel ..................................................................................................................................................... 16,000 1,500 

Kennecott Salt Lake ................................................................................................................................................ 1,000 100 

Phelps Dodge Chino ................................................................................................................................................ 16,000 3,000 

Phelps Dodge Hidalgo ............................................................................................................................................. 22,000 4,000 

Phelps Dodge Miami ............................................................................................................................................... 8,000 2,000 

(iii) Adjustments for changes in 

emission monitoring or calculation 

methods. The plan must provide for 

adjustments to the milestones to reflect 

changes in sulfur dioxide emission 

monitoring or measurement methods for 

a source that is included in the program, 

including changes identified under 

paragraph (h)(2)(iii)(D) of this section. 

Any such adjustment based upon 

changes to emissions monitoring or 

measurement methods must be made in 

the form of an implementation plan 

revision that complies with the 

procedural requirements of § 51.102 and 

§ 51.103. The implementation plan 

revision must be submitted to the 

Administrator no later than the first due 

date for a periodic report under 

paragraph (d)(10) of this section 

following the change in emission 

monitoring or measurement method. 

(iv) Adjustments for changes in flow 

rate measurement methods for affected 

sources under 40 CFR 72.1. For the 

years between 2003 and 2017, the 

implementation plan must provide for 

adjustments to the milestones for 

sources using the methods contained in 

40 CFR part 60, appendix A, Methods 

2F, 2G, and 2H. For any year for which 

such an adjustment has not yet been 

made to the milestone, the 

implementation plan must provide for 

an adjustment to the emissions 

reporting to ensure consistency. The 

implementation plan must provide for 

adjustments to the milestones by no 

later than the date of the periodic plan 

revision required under § 51.309(d)(10). 

(v) Adjustments due to enforcement 

actions arising from settlements. The 

implementation plan must provide for 

adjustments to the milestones, as 

specified in paragraph (h)(1)(vii) and 

(viii) of this section, if: 

(A) an agreement to settle an action, 

arising from allegations of a failure of an 

owner or operator of an emissions unit 

at a source in the program to comply 

with applicable regulations which were 

in effect during the base year, is reached 

between the parties to the action; 

(B) the alleged failure to comply with 

applicable regulations affects the 

assumptions that were used in 

calculating the source’s base year and 

forecasted sulfur dioxide emissions; and 

(C) the settlement includes or 

recommends an adjustment to the 

milestones. 

33788 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

(vi) Adjustments due to enforcement 

actions arising from administrative or 

judicial orders. The implementation 

plan must also provide for adjustments 

to the milestones as directed by any 

final administrative or judicial order, as 

specified in paragraph (h)(1)(vii) and 

(viii) of this section. Where the final 

administrative or judicial order does not 

include a reforecast of the source’s 

baseline, the State or Tribe shall 

evaluate whether a reforecast of the 

source’s baseline emissions is 

appropriate. 

(vii) Adjustments for enforcement 

actions. The plan must provide that, 

based on paragraph (h)(1)(v) and (vi) of 

this section, the milestone must be 

decreased by an appropriate amount 

based on a reforecast of the source’s 

decreased sulfur dioxide emissions. The 

adjustments do not become effective 

until after the source has reduced its 

sulfur dioxide emissions as required in 

the settlement agreement, or 

administrative or judicial order. All 

adjustments based upon enforcement 

actions must be made in the form of an 

implementation plan revision that 

complies with the procedural 

requirements of §§ 51.102 and 51.103. 

(viii) Documentation of adjustments 

for enforcement actions. In the periodic 

plan revision required under 

51.309(d)(10), the State or Tribe shall 

include the following documentation of 

any adjustment due to an enforcement 

action: 

(A) identification of each source 

under the State or Tribe’s jurisdiction 

which has reduced sulfur dioxide 

emissions pursuant to a settlement 

agreement, or an administrative or 

judicial order; 

(B) for each source identified, a 

statement indicating whether the 

milestones were adjusted in response to 

the enforcement action; 

(C) discussion of the rationale for the 

State or Tribe’s decision to adjust or not 

to adjust the milestones; and 

(D) if extra SO2 emissions reductions 

(over and above those reductions 

needed for compliance with the 

applicable regulations) were part of an 

agreement to settle an action, a 

statement indicating whether such 

reductions resulted in any adjustment to 

the milestones or allowance allocations, 

and a discussion of the rationale for the 

State or Tribe’s decision on any such 

adjustment.

(ix) Adjustment based upon program 

audits. The plan must provide for 

appropriate adjustments to the 

milestones based upon the results of 

program audits. Any such adjustment 

based upon audits must be made in the 

form of an implementation plan revision 

that complies with the procedural 

requirements of §§ 51.102 and 51.103. 

The implementation plan revision must 

be submitted to the Administrator no 

later than the first due date after the 

audit for a periodic report under 

paragraph (d)(10) of this section. 

(x) Adjustment for individual sources 

opting into the program. The plan may 

provide for adjustments to the 

milestones for any source choosing to 

participate in the program even though 

the source does not meet the 100 tons 

per year criterion for inclusion. Any 

such adjustments must be made in the 

form of an implementation plan revision 

that complies with the procedural 

requirements of §§ 51.102 and 51.103. 

(2) Requirements for monitoring, 

recordkeeping and reporting of actual 

annual emissions of sulfur dioxide.

(i) Sources included in the program.

The implementation plan must provide 

for annual emission monitoring and 

reporting, beginning with calendar year 

2003, for all sources with actual 

emissions of sulfur dioxide of 100 tons 

per year or more as of 2003, and all 

sources with actual emissions of 100 

tons or more per year in any subsequent 

year. States and Tribes may include 

other sources in the program, if the 

implementation plan provides for the 

same procedures and monitoring as for 

other sources in a way that is federally 

enforceable. 

(ii) Documentation of emissions 

calculation methods. The 

implementation plan must provide 

documentation of the specific 

methodology used to calculate 

emissions for each emitting unit 

included in the program during the base 

year. The implementation plan must 

also provide for documentation of any 

change to the specific methodology used 

to calculate emissions at any emitting 

unit for any year after the base year. 

(iii) Recordkeeping. The 

implementation plan must provide for 

the retention of records for at least 10 

years from the establishment of the 

record. If a record will be the basis for 

an adjustment to the milestone as 

provided for in paragraph (h)(1) of this 

section, that record must be retained for 

at least 10 years from the establishment 

of the record, or 5 years after the date 

of the implementation plan revision 

which reflects the adjustment, 

whichever is longer. 

(iv) Completion and submission of 

emissions reports. The implementation 

plan must provide for the annual 

collection of emissions data for sources 

included within the program, quality 

assurance of the data, public review of 

the data, and submission of emissions 

reports to the Administrator and to each 

State and Tribe which has submitted an 

implementation plan under this section. 

The implementation plan must provide 

for submission of the emission reports 

by no later than September 30 of each 

year, beginning with reports due 

September 30, 2004 for emissions from 

calendar year 2003. For sources for 

which changes in emission 

quantification methods require 

adjustments under paragraph (h)(1)(iii) 

of this section, the emissions reports 

must reflect the method in place before 

the change, for each year until the 

milestone has been adjusted. If each of 

the States which have submitted an 

implementation plan under this section 

have identified a regional planning 

organization to coordinate the annual 

comparison of regional SO2 emissions 

against the appropriate milestone, the 

implementation plan must provide for 

reporting of this information to the 

regional planning body. 

(v) Exceptions reports. The emissions 

report submitted by each State and 

Tribe under paragraph (h)(2)(ii) of this 

section must provide for exceptions 

reports containing the following:

(A) identification of any new or 

additional sulfur dioxide sources greater 

than 100 tons per year that were not 

contained in the previous year 

emissions report; 

(B) identification of sources shut 

down or removed from the previous 

year emissions report; 

(C) explanation for emissions 

variations at any covered source that 

exceed plus or minus 20 percent from 

the previous year’s emissions report; 

(D) identification and explanation of 

changed emissions monitoring and 

reporting methods at any source. The 

use of any changed emission monitoring 

or reporting methods requires an 

adjustment to the milestones according 

to paragraph (h)(1)(iii) of this section. 

(vi) Reporting of emissions for the 

Mohave Generating Station for the years 

2003 through 2006. For the years 2003, 

2004, 2005, and for any part of the year 

2006 before installation and operation of 

sulfur dioxide controls at the Mohave 

Generating Station, emissions from the 

Mohave Generating Station will be 

calculated using a sulfur dioxide 

emission factor of 0.15 pounds per 

million BTU. 

(vii) Special provision for the year 

2013. The implementation plan must 

provide that in the emissions report for 

calendar year 2012, which is due by 

September 30, 2013 under paragraph 

(h)(2)(iv) of this section, each State has 

the option of including calendar year 

2018 emission projections for each 

source, in addition to the actual

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33789

emissions for each source for calendar 

year 2012. 

(3) Annual comparison of emissions 

to the milestone.

(i) The implementation plan must 

provide for a comparison each year of 

annual SO2 emissions for the region 

against the appropriate milestone. In 

making this comparison, the State or 

Tribe must make the comparison, using 

its annual emissions report and 

emissions reports from other States and 

Tribes reported under paragraph 

(h)(2)(iv) of this section. 

(ii) The implementation plan must 

provide for the State or Tribe to make 

available to the public a draft report 

comparing annual emissions to the 

milestone by December 31 of each year. 

The first draft report, comparing annual 

emissions in 2003 to the year 2003 

milestone will be due December 31, 

2004. 

(iii) The implementation plan must 

provide for the State or Tribe to submit 

to the Administrator a final 

determination of annual emissions by 

March 31 of the following year. The 

final determination must state whether 

or not the annual emissions for the year 

exceed the appropriate milestone. 

(iv) A State or Tribe may delegate its 

responsibilities to prepare draft reports 

and reports supporting the final 

determinations under paragraphs 

(h)(3)(i) through (iii) of this section to a 

regional planning organization 

designated by each State or Tribe 

submitting an approvable plan under 

this section. 

(v) Special considerations for year 

2012 report. If each State or Tribe 

submitting an approvable plan under 

this section has included calendar year 

2018 emission projections under 

paragraph (h)(2)(vii) of this section, then 

the report for the year 2012 milestone 

which is due by December 31, 2013 

under paragraph (h)(3)(ii) of this section 

may also include a comparison of the 

regional year 2018 emissions projection 

with the milestone for calendar year 

2018. If the report indicates that the year 

2018 milestone will be exceeded, then 

the State or Tribe may choose to 

implement the market trading program 

beginning in the year 2018, if each State 

or Tribe submitting an approvable plan 

under this section agrees. 

(vi) Independent review. The 

implementation plan must provide for 

reviews of the annual emissions 

reporting program by an independent 

third party. This independent review is 

not required if a determination has been 

made under paragraph (h)(3)(iii) of this 

section to implement the market trading 

program. The independent review shall 

be completed by the end of 2006, and 

every 5 years thereafter, and shall 

include an analysis of: 

(A) the uncertainty of the reported 

emissions data; 

(B) whether the uncertainty of the 

reported emissions data is likely to have 

an adverse impact on the annual 

determination of emissions relative to 

the milestone; and, 

(C) whether there are any necessary 

improvements for the annual 

administrative process for collecting the 

emissions data, reporting the data, and 

obtaining public review of the data. 

(4) Market trading program. The 

implementation plan must provide for 

implementation of a market trading 

program if the determination required 

by paragraph (h)(3)(iii) of this section 

indicates that a milestone has been 

exceeded. The implementation plan 

must provide for the option of 

implementation of a market trading 

program if a report under paragraph 

(h)(3)(v) of this section indicates that 

projected emissions for the year 2018 

will exceed the year 2018 milestone. 

The implementation plan must provide 

for a market trading program whose 

provisions are substantively the same 

for each State or Tribe submitting an 

approvable plan under this section. The 

implementation plan must include the 

following market trading program 

provisions:

(i) Allowances. For each source in the 

program, the implementation plan must 

either identify the specific allocation of 

allowances, on a tons per year basis, for 

each calendar year from 2009 to 2018 or 

the formula or methodology that will be 

used to calculate the allowances if the 

program is triggered. The 

implementation plan must provide that 

eligible renewable energy resources that 

begin operation after October 1, 2000 

will receive 2.5 tons of SO2 allowances 

per megawatt of installed nameplate 

capacity per year. Allowance allocations 

for renewable energy resources that 

begin operation prior to the program 

trigger will be retroactive to the time of 

initial operation. The implementation 

plan may provide for an upper limit on 

the number of allowances provided for 

eligible renewable energy resources. The 

total of the tons per year allowances 

across all participating States and 

Tribes, including the renewable energy 

allowances, may not exceed the 

amounts in Table 4 of this paragraph, 

less a 20,000 ton amount that must be 

set aside for use by Tribes. The 

implementation plan may include 

procedures for redistributing the 

allowances in future years, if as the 

amounts in Table 4 of this paragraph, 

less a 20,000 ton amount, are not 

exceeded. The implementation plan 

must provide that any adjustment for a 

calendar year applied to the milestones 

under paragraphs (h)(1)(i) through (vii) 

of this section must also be applied to 

the amounts in Table 4. Table 4 follows:

TABLE 4.—TOTAL AMOUNT OF ALLOWANCES BY YEAR

For this year: 

If the two 

smelters resume operations, the 

total number 

of allowances 

issued by 

States and 

Tribes may not 

exceed this 

amount: 

If the two 

smelters do 

not resume 

operations, the 

total number 

of allowances 

issued by 

States and 

Tribes may not 

exceed this 

amount: 

2009 ......................................................................................................................................................................... 715,000 677,000 

2010 ......................................................................................................................................................................... 715,000 677,000 

2011 ......................................................................................................................................................................... 715,000 677,000 

2012 ......................................................................................................................................................................... 715,000 677,000 

2013 ......................................................................................................................................................................... 655,000 625,000 

2014 ......................................................................................................................................................................... 655,000 625,000 

2015 ......................................................................................................................................................................... 655,000 625,000 

2016 ......................................................................................................................................................................... 655,000 625,000 

2017 ......................................................................................................................................................................... 655,000 625,000 

33790 Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 

TABLE 4.—TOTAL AMOUNT OF ALLOWANCES BY YEAR—Continued

For this year: 

If the two 

smelters resume operations, the 

total number 

of allowances 

issued by 

States and 

Tribes may not 

exceed this 

amount: 

If the two 

smelters do 

not resume 

operations, the 

total number 

of allowances 

issued by 

States and 

Tribes may not 

exceed this 

amount: 

2018 ......................................................................................................................................................................... 510,000 480,000 

(ii) Compliance with allowances. The 

implementation plan must provide that, 

beginning with the compliance period 6 

years following the calendar year for 

which emissions exceeded the 

milestone and for each compliance 

period thereafter, the owner or operator 

of each source in the program must hold 

allowances for each ton of sulfur 

dioxide emitted by the source. 

(iii) Emissions quantification 

protocols. The implementation plan 

must include specific emissions 

quantification protocols for each source 

category included within the program, 

including the identification of sources 

subject to part 75 of this chapter. For 

sources subject to part 75 of this 

chapter, the implementation plan may 

rely on the emissions quantification 

protocol in part 75. For source 

categories with sources in more than 

one State or tribal area submitting an 

implementation plan under this section, 

each State or Tribe should use the same 

protocol to quantify emissions for 

sources in the source category. The 

protocols must provide for reliability 

(repeated application obtains results 

equivalent to EPA-approved test 

methods), and replicability (different 

users obtain the same or equivalent 

results that are independently 

verifiable). The protocols must include 

procedures for addressing missing data, 

which provide for conservative 

calculations of emissions and provide 

sufficient incentives for sources to 

comply with the monitoring provisions. 

If the protocols are not the same for 

sources within a given source category, 

and where the protocols are not based 

upon part 75 or equivalent methods, the 

State or Tribes must provide a 

demonstration that each such protocol 

meets all of the criteria of this 

paragraph. 

(iv) Monitoring and Recordkeeping.

The implementation plan must include 

monitoring provisions which are 

consistent with the emissions 

quantification protocol. Monitoring 

required by these provisions must be 

timely and of sufficient frequency to 

ensure the enforceability of the program. 

The implementation plan must also 

include requirements that the owner or 

operator of each source in the program 

keep records consistent with the 

emissions quantification protocols, and 

keep all records used to determine 

compliance for at least 5 years. For 

source owners or operators which use 

banked allowances, all records relating 

to the banked allowance must be kept 

for at least 5 years after the banked 

allowances are used. 

(v) Tracking system. The 

implementation plan must provide for 

submitting data to a centralized system 

for the tracking of allowances and 

emissions. The implementation plan 

must provide that all necessary 

information regarding emissions, 

allowances, and transactions is publicly 

available in a secure, centralized data 

base. In the system, each allowance 

must be uniquely identified. The system 

must allow for frequent updates and 

include enforceable procedures for 

recording data. 

(vi) Authorized account 

representative. The implementation 

plan must include provisions requiring 

the owner or operator of each source in 

the program to identify an authorized 

account representative. The 

implementation plan must provide that 

all matters pertaining to the account, 

including, but not limited to, the 

deduction and transfer of allowances in 

the account, and certifications of the 

completeness and accuracy of emissions 

and allowances transactions required in 

the annual report under paragraph 

(h)(4)(vii) of this section shall be 

undertaken only by the authorized 

account representative. 

(vii) Annual report. The 

implementation plan must include 

provisions requiring the authorized 

account representative for each source 

in the program to demonstrate and 

report within a specified time period 

following the end of each calendar year 

that the source holds allowances for 

each ton per year of SO2 emitted in that 

year. The implementation plan must 

require the authorized account 

representative to submit the report 

within 60 days after the end of each 

calendar year, unless an alternative 

deadline is specified consistent with 

emission monitoring and reporting 

procedures. 

(viii) Allowance transfers. The 

implementation plan must include 

provisions detailing the process for 

transferring allowances between parties.

(ix) Emissions banking. The 

implementation plan may provide for 

the banking of unused allowances. Any 

such provisions must state whether 

unused allowances may be kept for use 

in future years and describe any 

restrictions on the use of any such 

allowances. Allowances kept for use in 

future years may be used in calendar 

year 2018 only if the implementation 

plan ensures that such allowances 

would not interfere with the 

achievement of the year 2018 amount in 

Table 4 in paragraph (c)(4)(i) of this 

section. 

(x) Penalties. The implementation 

plan must: 

(A) provide that if emissions from a 

source in the program exceed the 

allowances held by the source, the 

source’s allowances will be reduced by 

an amount equal to two times the 

source’s tons of excess emissions, 

(B) provide for appropriate financial 

penalties for excess emissions, either 

$5000 per ton (year 2000 dollars) or an 

alternative amount that is the same for 

each participating State and Tribe and 

that substantially exceeds the expected 

cost of allowances, 

(C) ensure that failure to comply with 

any program requirements (including 

monitoring, recordkeeping, and 

reporting requirements) are violations 

which are subject to civil and criminal 

remedies provided under applicable 

State or tribal law and the Clean Air 

Act, that each day of the control period 

is a separate violation, and that each ton 

of excess emissions is a separate 

violation. Any allowance reduction or 

Federal Register / Vol. 68, No. 108 / Thursday, June 5, 2003 / Rules and Regulations 33791

penalty assessment required under 

paragraphs (h)(4)(x)(A) and (B) of this 

section shall not affect the liability of 

the source for remedies under this 

paragraph. 

(xi) Provisions for periodic evaluation 

of the trading program. The 

implementation plan must provide for 

an evaluation of the trading program no 

later than 3 years following the first full 

year of the trading program, and at least 

every 5 years thereafter. Any changes 

warranted by the evaluation should be 

incorporated into the next periodic 

implementation plan revision required 

under paragraph (d)(10) of this section. 

The evaluation must be conducted by an 

independent third party and must 

include an analysis of: 

(A) Whether the total actual emissions 

could exceed the values in 

§ 51.309(h)(4)(i), even though sources 

comply with their allowances; 

(B) Whether the program achieved the 

overall emission milestone it was 

intended to reach; 

(C) The effectiveness of the 

compliance, enforcement and penalty 

provisions; 

(D) A discussion of whether States 

and Tribes have enough resources to 

implement the trading program; 

(E) Whether the trading program 

resulted in any unexpected beneficial 

effects, or any unintended detrimental 

effects; 

(F) Whether the actions taken to 

reduce sulfur dioxide have led to any 

unintended increases in other 

pollutants; 

(G) Whether there are any changes 

needed in emissions monitoring and 

reporting protocols, or in the 

administrative procedures for program 

administration and tracking; and 

(H) The effectiveness of the provisions 

for interstate trading, and whether there 

are any procedural changes needed to 

make the interstate nature of the 

program more effective. 

(5) Other provisions.

(i) Permitting of affected sources. The 

implementation plan must provide that 

for sources subject to part 70 or part 71 

of this chapter, the implementation plan 

requirements for emissions reporting 

and for the trading program under 

paragraph (h) of this section must be 

incorporated into the part 70 or part 71 

permit. For sources not subject to part 

70 or part 71 of this chapter, the 

requirements must be incorporated into 

a permit that is enforceable as a 

practical matter by the Administrator, 

and by citizens to the extent permitted 

under the Clean Air Act. 

(ii) Integration with other programs.

The implementation plan must provide 

that in addition to the requirements of 

paragraph (h) of this section, any 

applicable restrictions of Federal, State, 

and tribal law remain in place. No 

provision of paragraph (h) of this 

section should be interpreted as 

exempting any source from compliance 

with any other provision of Federal, 

State, tribal or local law, including an 

approved implementation plan, a 

Federally enforceable permit, or any 

other Federal regulations.

[FR Doc. 03–13255 Filed 6–4–03; 8:45 am] 

BILLING CODE 6560–50–P

NButt@cabq.goY

09/22/03 12:28 PM

EXHIBIT

J "3

To: air·quality·announce@pubsite.cabq.gov

cc: rmnieto@ls.led.us, gbarkmann@ls.led.us, lisa_bye@blm.gov,

Todd_richards@blm.gov, rlee@blm.gov, david_langley@nps.gov,

michaeLkessler@nps.gov, Itrujillo@amalca.org,

michael.w.carey@usace.army.mil, jeICwhitney@fws.gov,

Grogan@mrgcd.us, Ray@mrgcd.us, LeonardU@mrgcd.us,

jwitte@nmda4.nmsu.edu, SCAnderson@state.nm.us,

terry.cooper@kirtland.al.mil, Cholloway@doeal.gov,

Jkruger@slo.state.nm.us, du_mond@juno.com,

khendricks@mercury.bernco.gov, sclark@e2m.net,

Jackie.Carnes@kirtland.al.mil, aallen@ls.ied.us,

K_Michaud@blm.gov, gretchen_ward@nps.gov,

Tricia_Roller@fws.gov, Iholgui n@ls.ied.us

Subject: extension 01 comment period lor Open Burning and Regional

Haze and notice 01 hearing lor amendment to 20.11.1 NMAC

(See attached file: ABO Journal legal ad for extension of comments for

RH.doc)

ABO Journal leRal ad for extension of comments for Rt-
AlBUOUEROUEIBERNAULio

COUNTY AIR QUALITY . CONTROl. BOARD .

NOliCE OF HEARING AND

IlEGULAR IIEE1JNG.

On November \2, 2003, al 5:15

PM, Ihe AlbuquarquelBarnalillo

CoL>lty Air. Dually Control Board

(Board) IriI hold two PIIJIic hearilgs n tha City Com:ilfCoonJY Comm~·

.$Ion Chambers cl the A1txJque<cpeI

Bemalillo County Gpvemmenl Center, 400 Maft!lJelle Avenue WW, A~

buquerque, NM 87102. The hear..

ing5 w!U adaess: - Proi>osaJ 10 eslabish 20.11.46

NMAC, Westem Bacltstop SuUur

, OiOxide Trading Program.

-.PloposaJ 10 incorporatea rlE!\'AyadopIed 20.11.46 Nl.AAC ,,10 the

New Mallico' Slale I~enta·

non Plan (SIP) for a(r qualiIY.

The PO;rpose of the Irsl hearing is

10 receive lestlmony on the pro·

pose<t 20.11.46 NMAC; Westem

Backs10p SuUur Dioxide Trading

Program regulation. The mgulation

is being proposed "' order 10 com· ply v,ith the federal Clean Air Act

and the assocIaled EPA require· manls of 40 CFR' 51.:lO9 (Section

309). Section 309 01' the ladera/.

Regional Haze Regul~lIoo eslab-'

ishes mandalory reqc;remeots !hat

must be mel by Naw Mexico's air

quality implementalion plan. "eluding regional sulfur dioxide milestones, suttuf dioxide emissions

lracl<ng requirements ande back·

stop regional cap·and-t1ade pto·

gram for sulfur dioxide. The pro·

posed new local regulation includes

emissiOns inventory requirements

lor lracking campiance wilh Ihe'

sulfur dioxide mllesl"""s. The

emisSions inventory and tracking

requiremeflls for sulfur diOxide are

inclOOed as enforceatKe provisions

in lhe ptoposed ,regulalion."The

proposed regulation conlains the

requirements thai wolJd apply 10

.major (loo tons 0< more per y;lllr)

Industriat SOUItllSd sulfur dioxide

emissions asa 'bacl<stop"feglJatory program spediad sulfurdioxide

mileslones are e.ceeded. If the

mileslones are exceede:d, numerOllS mandalory requuetrfeots of the

proposed regulalion will be Itig.

gered, including the prucedtxes and

camplia,nce requirements 10< sourc· es in !he lracingprogram. However,

the mandalory prOliisions lila\' wil

be triggered by e.ceeding the mile·

slones may never be implemented j the 'goat 01 ri1eeling the regional

sulfur dio>ide mileslooes through

voluntary means is adlieYed.

Immediately after the November 12,

2003 hearing on tile proposed regulalion 20.1t46 NMAC closes, a >;eCOnd hearilg will be held curing

whicll the Board ..I be asked 10

place lhe new!y-adopled regutation

irm the stale im~tion plan

10' ai! qually (SIP). FoIIoWng the

two l'ieerings, and any oIhe' bea,·

ings held on NO\I8mber 12, IIle

Boand-wll hold Ws regular. moolI1ly

'meelirlg during whicll the Board is expeeled 10 ca~' approval ot lhe proposed reg.Jla1lon and ncor·

poration of the newtr':~ reguIaIion rno the SIP.

Hearings end meelings 01 Ihe

Board are open 10 the p!.tlIic and all

in1eresled pe=ns are encouraged 10 participate. All persons who wish

·10. testify reganflflQ lhe sLbject of

lIle heating may do so a11he hear·

ing end WIll be 'given ,a reasooable

opponunity 10 slbni relevant eVl'

d9rice, dela, views, and llIlJumenls,

oraly or in wntr)g: 10 inlroduce e~·

I hibi1s·and \0 ewnine witnessesm

accordence with Ih& Joint Air Qual.

tt Corittol Boand Onlinences, sec- lion 9-5-1-6 ROA 1994 and Bema-'

, 1110 eour.y Onfnance 9(·5, Section'

6.

.AI1~ intending to presenlled1~j.

cal lestinooy is asked to submita

writIan noticed ntaolto: Attn: N0-

vember Hearing Aetcrd, .Mr, Oan

Werren, Albuquerque Environmen·

tal Heallh Oepartment, P.O. Bo.

1293, AI:>u.querque, tiM 87103, or

in person in Room 3023. 400 ~ar·

quelleA..nUll /ffl,n advat1ce 01

lhe hearing. The notice of int9l1t

shaH Identify the name, address,

and alfiiation 01 the peBOn.

In adltlion, writlen comments In be

ncorporaled "to the. pubic racorn

sholJd be recei\led al the abolle

P.O. Box, or Environmenlel HeaJlh

DepaJlrTfenl olf"", belora 5:00 pm

on November 5, 2003. The com-

·meots shan include the'name end

address of Ihe individual IX organi·

zation submitting the statement.

Wri"en commenls may also be

subrnined electronicaUy 10 <!war·

renOcabq.gov and inClt.<ie the

required name and addtess info,·

mation. Inlert!sled persons may ob~

laina CO{1'J of tile 'proposed regula·

lion at the EnviO)ll(lWlntal HeaUh

Department Office. 0< by cootaeting

Mr. Neal Bun electronically al

nbuIt@cabq·.g:>v or by phone (505)

768·2600..

The Air Ouallty Control Board Is me

federally de!egated air quality au-'

Ihority for Albuquerque and Bema·

lillo'CoL>lty. Local delegation aufh6.

ril.. Ihe Boand -to administer and

.nfon:e lhe Clean Air Ad and the

. New Mexico Air Quality Conlrof Act,

and to requjre focal au polu1lon

sources 10 comply with. a~ quality

standards.'

NOTICE TO PERSONS WITH 015-

ABIUnES: If yoo hawa disabiity·

and require spec'al assistance 10

pariicipate in this (IMNloog, please

contact Mr. Neal Butt, EnYiroorner>-

til Health Oepartmen~ Room 3023,

AIBCGC. 768·260Q (Voice);

768·2617 (FAX): or 768·2482'

(TIY); as soon as possible' prior 10

the meeling dale. Public dOCU'1 manis, ~uding agendas and OlIn·

utes, can be providod in I'lllious

accessilIe bmaIs. JoeunP(· 5: 200

3

EXHIBIT

j 't
('-----'Leg'-als~)

ALBUaUERQU~ERNAULLO

COUNTY AIR QUALITY

CONTROL BOARD

NOncE OF A'r'AILABlUTY Of

REVISED AND NEW

DOCUMENTS RELATED TO THE

PROPOSED SECTION 309

REGIONAL HAZE STATE

IMPLEMENTATION PLAN

ELEMENT

On OcIoller 8, 2003 at 3:00 PM and

on November 12, 2003, at 5:15 PM,

!tie AlbuquerquelBemalilkl County

Air Quality Control Board (Board)

will hold publIC hearings In the City

CounciVCounly Commiss~n Chambers 01 the Albuquerque/Bernalillo

County Government C911ter. 400

Marquette Avenue NW, Albuquerque, NM 87102. Tha lollowirPg three

hearirPgs will begin al 3.00 PM on

October8 arid will De continiJ9d on

November 12, 2003 815:15 PM • Proposal \0 submll a 'Section

309" Regiooal Haze alement for

inclusion inlo the New Mexico

Slate. Implemenlation Plan (SIP)

lor elr quality, 'Section 309" 01

tha federal Regiooel haze reguIlrtion is !tie provisioo th31 pertains to certain Western slates

including New Mexico'

• Proposal to amend Ihe Open

Burning ragulatlon, 20.11,21

NMAC (New MeXICo Administrative Code), 10 incorporate reqUiraments 01 the lederal Regional Haze Regulalion coocemIng smolle managemenl

• Proposal to incorporate an

ameoded 20.11.21 NMAC mlo

Ihe SIP, superceding Regulauon

3,a prior varsion 01 Ihe Open

Buminglegu~tion.

The followingl\lro hearings will be-

~~~t 5:15 PM on November 12, • Proposal to adopl a new regulalion, 20.11.46 NMAC, Su~ur DioXide EmlaSIOnS Invantory ReqUlremanls: Western Backstop

SuKur DIOXide Tradmg Program

• Proposal 10 incorporatee newlyadopled 20.1\.46 NMAC info the

New Mexico Stala Implamentation Plan (SIP) lor air quality.

The -OrigirJal documenletion lor tha

OdOOer.8 hearirgs was available to

the public beginning on September

8, 2003, following published nolice

ot availability. Since thai dale, some

revisions hav':! bean mede 10 the

Open Buming regu~tioo and 10 the

proposad Regional Haze SIP element, including incorporation 01 reierencas to Ihe 2011.46 NMAC,

Weslern Bad,stop Suilur Dioxide

Trading Program regulation The

revISed Sec~on 309 Regional Haze

element IS now avail3ble, In addilion, tha 20.11.46 NMAC, Western

Backstop Sullur Dioxide Trading

Program regulation and Itle revtsed

Open Bumir>g regulation are now

avalJab~ to Ihe pUbilC for raview

and comment. (See today's related

legal adI

Hearings and meellngs of Ihe

Board are open to the publt and all

Inleresled persons are encouraaed

to partlcipale, Any person may ieslily at the Odober 8, 2003 hearing

, and ,at the Novembar 12, '2003

heaflng regarding Ihe Regional

Haze SIP elemerlt and It1e related

regulations. All persoos who wish to teslily regardill'J the subj9CI 01 the

hearing may, do SIl al Itle hearing

and WII! be Q1veoa reasonable opportunity 10 submll ralevant eVIder.ce, dale, views, and argurT1Elllls,

orally or In writir>g, to introduce exhibits and to examine wijroesses In

accordance wilt; the Join! Ai' a,x'-

tty Control Board Ordinances Sectiorl 9-5-1-6 ROA 19901 and Serna-

~uo County ~dinance 94-5, Secllon

Anyooe infendill'J In presenllechnical leslimooy is asked to submil a

wrillen notice of intent to: Atln:

Heanng Record, Mr. Dan Warren,

Albuquerque Enviroomental Heallh

Department, P.O. Box 1293. Albu·

querque. NM 87103, or in person in

Room 3023, 400 Marqufille Avenue

NW, In advance 01 the haanng. The

nolice ot inlent shaH Identity the

name, address, and alflfliltion of the

person.

In addijioo, lIIfillen cpmmenls to be

Incorporated inlo tf1e OctoberB

publIC; hearing record should be receiVed al Itle above P,O. Box, or

Envlronmentel Heailh Department

offICe, before 5:00 PM on OcllJber

8, 2003, and writteo cornments to

tl8 incorporated into lhe November

12 public hearing record should be

receil'ed alltle above P.O, Box, or

Environmental Health Departmenf

o1lice, belora 5:00 PM on Novem·

ber.5. 2003, The comments shall

include the name and address 01

the, individual or organLlallOn sub

milling the statement. Written iXlfTlmenls may also tl8 sUOOlill9d electronically 10 dwarren@cabq.govand

shai include It1e required name and

addfess information, Inleresled persons mey obIBin e copy of Itle proposed regulation al the Environmamal Heallh Departmenl Office, or

byconlading Mr, Neal Bull electronically at nbuII@cabq.gov or by

pnone (505) 768-2660

The Air Quality Control Board the

ledefally delegated air quality euthority lor Albuquerque and Bemanllo County. local delegation authorizes Ihe Board to administer and

eoforce tile ClaM Air Act and Iha

New Mexico Air Quality Confrol Act,

an!l to raquira local air pollution

sources to iXlmply wijh air quality

standards

NOTICE TO PERSONS WITH DISABILITIES: II you have a disability

and require spec~1 assIStance to

participate in this meeting, please

contae:! Mr. Neal Bull. Environmenlal HeaKh Department. Room 3023,

AlBCGC, 768-2600 (Voice).

768-2617 (FAX): or 768-2482

(TTY); as soon as possible prior 10

the meeting !lale. Public !locumenls, including ageodas and minules, can be ,prov~d In various

accesslbla formals

Journal: October 5, 2003

EXHIBIT 5
EXHIBIT

I 6

New Mexico Register / Volume XIV, Number 19 / October 15, 2003

In addition, written comments to be incorporated inlo the public record for the

October 8. 2003 hearings thai will conclude

on November 12, 2003 should be received

at the above P.O. Box, or Environmental

Healtll Department office, before 5:00 pm

on October 30, 2003. However, the

Department strongly encourages written

comments to be delivered prior to the

October 8. 2003 hearing. Written comments to be incorporated into the public

record for the Part 1. General Provisions

hearing scheduled for October 27, 2003.

should be received at the above P.O. Box, or

Environmental Health Department office,

before 5:00 pm on October 21,2003. These

comments shall include the name and

address of the individual or organization

submitting the statement. Written COlDments lUay also be submitted electronically

to dwauen@cahq i'0y but must still include

the required name and address infonnation..

Interested persons may obtain a copy ofthe

proposed regulations and Regional Haze

SIP element at the Environmental Health

Anyone intending 10 prcsent technical testimony at any ofthe hearings is risked to submit a written notice of intent to: Attn:

Hearing Record, Mr. Dan Warren,

Albuquerque Environmental Health

Department, P.O. Box 1293, Albuquerque.

NM 87103, or, in advance of the hearing,

you may deliver your notice ofintent to testify to Room 3023, 400 Marquette Avenue

NW. The notice of intent shall identify the

name, address, and affiliation of the person

testifying.

Hearings and meetings of the Board are

open to the public and all interested persons

are encouraged to participale. All persons

who wish to testify regarding the subject of

the 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 COWlty Ordinance 94-

5, Section 6.

The Air Quality Control Board is the federally delegated air quality authority for

Albuquerque and Bernalillo County.

Federal, State, and local delegation authorize the Board to administer and enforce the

Clean Air Act, the New Mexico Air Quality

Control Act, local air quality regulations,

and to require local air pollution sources 10

Immediately after the Open Burping hear- comply with air quality standards.

ing closes, a third hearing will be held during which the Board will be asked to place

the amended Open Burning regulation into

the SIP if the Board adopts amendments to

Open Burning

The purpose of the second hearing is to

receive testimony on proposed amendments

\0 the Open Burning regulation 10 comply

with federal smoke management mandates

for prescribed burning, agricultural burning,

and wildflIes as required by the Regional

Haze regulation.

The Board has extended the public comment period Cor the October 8, 2003 hearings until November 12, 2003, which wUl

provide additionai opportunity Cor comment. The three hearings that will begin on

Octobcr 8, 2003 will conclude on

November 12.

November 12, 2003 is also the scheduled

hearing date Cor a new regulation pertaining to a Backstop Trading Program

Cor sulfur dioxide emissions that is being

proposed in order to satisfy Cederal

Regional Haze requirements. A separate

notice will be published giving the date,

time, location and Intent oC the Backstop

Trading Program regulation. An earlier

legal ad stated that, at the Board's regular

October 8, 2003 meeting, the Board would

consider whether to approve the submission

of a 'Section 309' Regional Haze SIP,

whether to adopt the proposed amendments

to Open Burning and whether 10 incorporate the amended Opeg Burning regulation

into the SIP. Because the Board has extended the public comment period for the three

hearings thai will begin October 8, the deci·

sion on whether to approve the Section 309

Regional Haze SIP, the Open Bprning regulation and the placement of the Q.um

regulation into the SIP is now

scheduled to occur on November 12, 2003.

On October 27, 2003 at 5:15 PM, the

Board will hold a public hearing In Room

3023 of the Albuquerque/BernaUllo

County Covernment Center, 400

Marquette Avenue NW, Albuquerque,

NM 87102. The bearing will be regardIng the proposal to amend Section 5 oC

20.11.1 NMAC, General Proyislons, (Part

1) by deleted the requiremenl thaI all regulations become effective on the first day of

the month. Proposed Section .'5 will continue to state that a regulation or standard will

not be effective until 30 days after filing

with the State Records Center, as required

Notices ofRulemaking and Prop:..;:o.::..;se=:.:d=-R=u~le:.:::s _ ALBUQUERQUE / Wilderness Area. by the State AI, Quality Control Act.

BERNALILLO COUNTY

AIR QUALITY CONTROL

BOARD

ALBUQUERQUE/BERNALILLO

COUNTY AIR QUALITY CONTROL

BOARD

NOTICE OF HEARINGS AND

MEETINGS; EXTENSION OF

COMMENT PERIOD

On October 8, 2003, at 3:00 PM, the

Albuquerque/Bernalillo County Air Quality

Conlrol Board (Board) will begin a series of

three public hearings in the City

CouncillCowlly Commission Chambers of

the Albuquerque/Bernalillo County

Government Center, 400 Marquette Avenue

NW. Albuquerque, NM 87102. The hearings will address:

1. Proposal to submit a "Section

309" Regional Haze element for inclusion

into the New Mexico State Implementation

Plan (SIP) for air quality. "Section 309" of

the federal Regional haze regulation is the

provision that pertains to cert3 in Western

states, including New Mexico

2. Proposal to amend the QllIm

Burning regulation, 20.11.21 Nt-.1AC (New

Mexico Administrative Code), to incorporate requirements of the federal Regional

Haze Regulation concerning smoke management

3. Proposal to incorporate an

amended 20.11.21 NMAC into the SIP,

superceding Regulation 3

The purpose ofthe ftrst hearing is to receive

testimony on proposed submission of a

Regional Haze element for inclusion into

the SIP. The Regional Haze SIP is a federal mandate to develop strategies to improve

visibility in Class I areas to natural visibility conditions by the year 2064. Class I

areas are those designated as areas of special national or regional value from a natural, scenic, recreational, and/or historic perspective. These areas are the focus of federal visibility protection regulations, including the Regional Haze regulalion. Across

the country, Class I areas include such

places as the Grand Canyon, Yosemite, Mt.

Rainier, and Yellowstone. Of the 156

mandatory federal Class I areas in the US,

nine Class I areas are in New Mexico,

including Carlsbad Caverns National Park,

Bandelier National Monument, Bosque del

Apache National Wildlife Refuge, the Gila

Wilderness Area, and the San Pedro Parks
692 New Mexico Register / Volume XIV, Number 19/ October 15, 2003

Department Office, or by contacting Mr.

Neal Butt electronically at nb!!tt@qabq goy

or by phone (505) 768-2660.

NOTICE TO PERSONS WITH DISABILITIES: If you have a disability and require

special assistance to participate in this meet.

ing, please contact Mr. Neal Butt,

Environmental Health Department, Room

3023, 400 Marquette Avenue NW, 768.

2600 (Voice); 768-2617 (FAX); or 768-

2482 (TTY); as soon as possible prior to the

meeting date. Public documents, including

agendas and minutes, can be provided in

various accessible fonnals.

NEW MEXICO

COUNSELLING AND

THERAPY PRACTICE

BOARD

Public Rule Hearing

TIle New Mexico COlUlseling and Therapy

Practice Board will convene a public rule

hearing on Friday November 21, 2003. TIle

hearing will begin al 10:00 a.lll. and a Board

Meeting thereafter al the New Mexico

Gaming Control Board, 6400 Uptown Blvd

NE, Suite 100-E, Albuquerque, New

Mexico. The purpose of the rule hearing is

to hear public testimony and comments

regarding the proposed rules and regulations:

Proposed Rules and Regulations

PART I General Provisions

PART 2 Mental Health Core Curriculum

PART 3 Application Procedures. Initial

License, License Period

PART 4 Requirements for Licensure as a

Professional Clinical Mental Health

CmUlselor

PART 5 Requirements for Licensure as a

Professional Clinical Mental Health

Counselor for LPC's who were

Gnmdfathered

PART 6 Requirements for Licensure as a

Marriage and Family Therapist

PART 7 Requirements for Licensure as a

Professional Art Therapist

PART 8 Requirements for Licensure as a

Professional Mental Health Counselor

PART 9 Requirements for Licensure as a

Mental Health Counselor (practice under

Supervision)

PART 10 Requirements for Licensure Witll

Examination as an Alcohol and Drug Abuse

Counselor effective July 1,2003

PART 11 Requirements for Licensure with

Examination as an Alcohol and Drug Abuse

Cmulselor effective July 1,2005.

PART 12 Requirements for Licensure as a

Substance Abuse Trninee effective July 1,

2003

PART 13 Requirements for Licensure as a

Substance Abuse Trninee effective July 1,

2005

PART 14 Temporary License

PART 15 Examinations

PART 16 Continuing Education

PART 17 Fees

PART 18 Code of Ethics

PART 19 Approved Supervisors

PART 20 Parental Responsibility Act

Compliance

NEW MEXICO

DEPARTMENT OF

CULTURAL AFFAIRS

NEW MEXICO MUSEUM OF

NATURAL HISTORY AND

SCIENCE

NOTICE OF PUBLIC HEARlNG

A1 tlle

New Mexico Museum of Natural History

and Science

A Division of the Department of Cultural

Affairs

State of New Mexico

MUSEUM CONFERENCE ROOM

1801 Mountain Road NW

Albuquerque. New Mexico 87104

(505) 841-2823

Friday. November 11,2003 at 11 a.m. - 12

Noon

FOR CONSrDERATION OF ADOPTION

OF MUSEUM ADMISSION FEE

INCREASE AND VIRTUAL VOYAGES

ADMISSION FEE CHANGE

PROPOSED CHANGE IN MUSEUM

ADMISSION FEE

Adults changed to $6 from $5; Seniors

(60+) changed to $5 from $4. and Children

(3-11) changed to $3 from $2.

PROPOSED CHANGE IN VIRTUAL

VOYAGES ADMISSION FEE

Adults clulnged to $4 from $5; Seniors

(60+) $4 remains the same, and Children

changed to $4 from $3.

If you are an individual with a disability

who is in need of a reader, amplifier, qualified sign language interpreter. or any other

fonn of auxiliary aid or service to attend or

participate ill the public hearing. please contact Marlene T31mer before November 12.

1003 at (505) 841-1823 or TTY 841-1878.

NEW MEXICO ENERGY,

MlNERALSANDNATURAL

RESOURCES

DEPARTMENT

ENERGY CONSERVATION AND

MANAGEMENT DIVISION

NOTICE OF PUBLIC MEETING AND

HEARING OF THE NEW MEXICO

ENERGY, MINERALS AND

NATURAL RESOURCES

DEPARTMENT

The New Mexico Energy. Minerals and

Natural Resources Department will hold a

meeting and hearing at 9:00 A.M. Monday,

November 10, 2003 in Porter Hall. first

floor, 1220 South Saini Francis Drive. Santa

Fe.NM.

During the meeting, the New Mexico

Energy. Minerals and Natural Resources

Department will conduct public hearings all

proposed changes to rules 3.13.19 NMAC

for administration of the Renewable

Energy Production Tax Credit, NMSA

1978, SeClion 7-2A-19 as amended in 2003.

Copies of the proposed amendments to the

rules are available from the New Mexico

Energy, Mi.nernls and Naturnl Resources

Departmenl. Energy Conservation and

Management Division, 1220 South Saint

Francis Drive, Santa Fe. NM 87505 or by

contacting Michael McDiannid, mmcdiarmid@state.nm.us. At the conclusion of

the hearing, the Energy, Minerals and

Natural Resources Department may deliber~

ate and make final decisions on the proposed amendments 10 rules.

All interested persons may participate in the

hearing, and will be given an opportunity to

submit relevant evidence. data, views, and

argumen1s. orally Or in writing.

If you are an individual with a disability

who is in need of a reader, amplifier, qualified sign language interpreter, or any other

fonn of auxiliary aid or service to attend Or

participate in the hearing or meeting, please

contact Michael McDiarmid at least one

week prior to the meeting or as soon as pos~

sible. Public documents, including the

agenda and minutes. can be provided in var_

ious accessible fonnals. Please contact

Michael McDiarmid at 476-3319. through

New Mexico voice relay at l-800-659~1779

or TID 1-800-659-8331. if a summary or

other type of accessible fannat is needed.

A person who wishes to submit a written

statement, in lieu of providing oral testimony at the hearing, shall submit 1he written

statement prior to the bearing, or submit it
NButt@cabq.gov

10106/03 03:40 PM

EXHIBIT

I ?

To: ai r·qual ity·annou nce@pubsite.cabq.gov

cc: rmnieto@fs.fed.us, gbarkmann@fs.fed.us, lisa_bye@blm.gov,

Todd_richards@blm.gov, rlee@blm.gov, david_langley@nps.gov,

michael_kessler@nps.gov, Itrujillo@amafca.org,

michael.w.carey@usace.army.mil, jefCwhitney@fws.gov,

Grogan@mrgcd.us, Ray@mrgcd.us, LeonardU@mrgcd.us,

jwitte@nmda4.nmsu.edu, SCAnderson@state.nm.us,

terry.cooper@kirtland.af.mil, Cholloway@doeal.gov,

Jkruger@slo.state.nm.us, du_mond@juno.com,

khendricks@mercury.bernco.gov, sclark@e2m.net,

Jackie.Carnes@kirtland.af.mil, aallen@fs.fed.us,

K_Michaud@blm.gov, gretchen_ward@nps.gov,

Tricia_Roller@fws.gov, Iholguin@fs.fed.us

Subject: Notification of revised docs

The Air Quality Division has issued revised public review drafts of the

proposed amendments to the Open Burning Regulation, 20.11.21 NMAC and the

proposed Section 309 Regional Haze State Implementation Plan (SIP) element

for Albuquerque, Bernalillo County, NM. The proposal to amend the Open

Burning regulation is a result of the need to incorporate requirements of

Section 309 of the federal Clean Air Act pertaining to tracking emissions

from large scale prescribed burns (i.e. greater than 10 acres) and to apply

certain other requirements to these prescribed burns. The Section 309 SIP

element is being proposed in order to satisfy federal requirements that are

intended to improve visibility in federal Class I areas. These Class I

areas include national parks, national monuments, wilderness areas, and

wildlife refuges. The goal is to achieve natural visibility conditions by

the year 2064.

In addition, a proposed new regulation entitled "Sulfur Dioxide Emissions

Inventory Requirements; Western Backstop Sulfur Dioxide Trading Program",

20.11.46 NMAC, is now available for review and comment.

Please see the attached legal ads for further information regarding public

hearings and comment periods.

Note that the Appendices for the Regional Haze SIP are unchanged from

September 8, 2003 version, except that the updated Open Burning regulation

and the new proposed regulation "Sulfur Dioxide Emissions Inventory

Requirements; Western Backstop Sulfur Dioxide Trading Program", 20.11.46

NMAC are now included. Both of these are available electronically or in

hard copy.

You may obtain the updated documents by making a request to Neal Butt at

(505) 768-2660 or by sending an email to nbutt@cabq.gov. Also, if you

have questions, you may email Dan Warren at (505) 768-2637 or by calling

768-2637.

(See attached file: RH S02 legal ad for October 5, 2003.doc) (See attached

file: RH Revised documents available legal ad for October 5, 2003.doc)

RH 502 le~al ad for October 5. 2003.d RH Revised documents available le~al ad for October 5, 200:
Majordomo@lists.cabq

.gOY

11/04/03 10:09 AM

Please respond to

Majordomo

To: NButt@cabq.goY

cc:

Subject: Majordomo results

j

EXHIBIT

»» WHO air-quality-announce

Members of list 'air-quality-announce

l

:

nnorem®mail.pnm.com

rcudney@swcp.com

hershber®Unm.edu

mldumon@sandia.go

v

airqual@cabq.gov

gdennis@cabq.gov

gdingman@cabq.gov

bjones@cabq.gov

akearny@cabq.gov

jliberatore@cabq.gov

dmunoz@cabq.gov

bortega@cabq.gov

yrosario@cabq.gov

mstebleton@cabq.gov

dwarren@cabq.gov

gwheeler@cabq.gov

coopert@knt2.kirtland.af.mil

Churchhw@aol.com

mmcentee@cabq.gov

joe.mauser@abq.sc.phillips.com

malyse@ix.netcom.com

coromall@aol.com

du mond@juno.com

LRose@montand.com

bagallegos@cabq.gov

caaragon@cabq.gov

19iesen@cabq.gov

adlopez@cabq.gov

ppuckett@cabq.gov

itavarez@cabq.gov

calbrecht@cabq.gov

dgates@cabq.gov

mltorrez@cabq.gov

bmcgill@gcc. com

mayor@cabq.gov

vfisher@cabq.gov

cbeimer@cabq.gov

flucero@cabq.gov

dsalisbury@cabq.gov

vgriego@cabq.gov

bwinter@cabq.gov

hyntema@cabq.gov

gpayne@cabq.gov

msanchez@cabq.gov

spruiell.stanley@epamail.epa.gov

grogan®mrgcd.dst.nm.us

page.daron@epamail.epa.gov

gregory.rawlings@fhwa.gov

todd.robert@epamail.epa.gov

ychavez®mercury.bernco.gov

emckinley®mercury.bernco.gov
msalazar@mercury.bernco.gov

Mark.Plumley@med.va.gov

steve dubyk@nmenv.state.nm.us

dvetter@itgroup.com

guyfortier@mindspring.com

belljd@Vmcmail.com

kobnews@swcp.com

paul.burt@krqe.com

Itafoya@mercury.bernco.gov

tloner@cabq.gov

drocha@cabq.gov

nbennett@mercury.bernco.gov

clehner@cabq.gov

Thomas.Terry@epamail.epa.gov

shivgoel@hotmail.com

pchandler@bernco.gov

Lany Weaver@nmenv.state.nm.us

Gail-Cooke@nmenv.state.nm.us

Sandra Ely®nmenv.state.nm.us

lsegovIa@bernco.gov

rita trujillo@nmenv.state.nm.us

lcaudill@flash.net

Brad Musick@nmenv.state.nm.us

slacY®doeal.gov

dmckay@abqjournal.com

karenflash@aol.com

dunnpilo@swcp.com

kmulloy@salud.unm.edu

akirkman@e2m.net

mpappas@e2m.net

tsingletary@e2m.net

bsidu@cabq.gov

pdvedamanikam@cabq.gov

cityhall®village.tijeras.nm.us

sricdon@earthlink.net

dvuchetich®viennapat.com

godea®Viennapat.com

deichman@flash.net

fmacias@cabq.gov

jgould@doeal.gov

mnelson@swcp.com

hdoldew@sandia.gov

lstark@cabq.gov

tmenicucci@cabq.gov

paul.silverrnan@geltmore.com

jbnmpirg@aol.com

Bertha.Montoya@nmshtd.state.nm.us

hgreen@nmelc.org

nj a®millereng. com

mcarstens@deltapower.com

rwilliams@classonetech.com

jeffrey.fredine@nmshtd.state.nm.us

ray.mattheW@nmshtd.state.nm.us

Melissa Clark@URScorp.com

rkeers@keers.com

EAdams@cabq.gov

JCastillo@cabq.gov

JCzar@cabq.gov

MGomez@cabq.gov

SMayer@cabq.gov

JDileanis@cabq.gov

BRizzieri@cabq.gov

MCadigan@cabq.gov

JMessier@cabq.gov

EGriego@cabq.gov
TCummins@cabq.gov

RSertich@cabq.gov

NBennett@bernco.gov

LHouston@bernco.gov

SGallegos@bernco.gov

TRutherford@bernco.gov

SWentworth@bernco.gov

KSanchez@bernco.gov

TCummins@bernco.gov

LTafoya@bernco.gov

LRael®mrgcog.org

jessica@1000friends-nm.org

acorsie@ci-rio-rancho.nm.us

rdoucette@bernco.gov

adgallegos@bernco.gov

mgallegos@bernco.gov

emckinley@bernco.gov

administrator@gov.villiage.corrales.nm.us

debbie.omalley®Usa.net

planner@co.valencia.nm.us

fishing®Unm.edu

sricpaul@earthlink.net

poienvir@nm.net

atwood c@aps.edu

acorsie@ci.rio-rancho.nm.us

lsk@hmda.com

Romeliar@alanm.org

hrosoff®villr.com

danwestern@qwest.net

aquaticpoolsinc.com

aquatic004@aol.com

karib@abqunder.com

dennisr@agc.nm.org

ronfernandez@sandiaproperties.com

rjwrons@earthlink.net

ALEX.CUELLAR@citcomm.com

rbmiera@swcp.com

MayorChavez@Village.Tijeras.NM.US

wade.peggy@epa.gov

Regtext@netscan.com

dennisr@agc-nm.org

dsumshler®Worldnet.att.net

vljaramillo@cabq.gov

dnason@cabq.gov

pmseby@S2801aw.com

tfoley@kbhome.com

jhorton@agc-nm.org

ngregory@centexhomes.com

wacorrals®msn.com

rlupton@sivage.com

tlucero®mercury.bernco.gov

ksuozzi®mercury.bernco.gov

TimW®mercury.bernco.gov

sfish®mercury.bernco.gov

gschroeder®mercury.bernco.gov

TRAILSMGMT@aol.com

betchang@salud.unm.edu

gnryba@cybermesa.com

sdsaavedra@bernco.gov

leonardu®mrgcd.dist.nm.us

nmpirg®pirg.org

kkobam@citcomm.com

rkennedy@cabq.gov

leonardu®mrgcd.dst.nm.us

rogerp®mercury.bernco.gov
mato@bernco.gov

nmasek@bernco.gov

davem@bernco.gov

rana.evans@kirtland.af.mil

ericz@bernco.gov

grogan®mrgcd.com

chris.f.whitman@mwhglobal.com

bobmanhard@earthlink.net

hbutts6@comcast.net

jkelly@amafca.org

edlor13@aol . com

lsk@swcp.com

JSmith@reidandassociates.com

Heather Seus@URSCorp.com

DRay@cabq.gov

atdevoe@52801aw.com

o.mcclellan@att.net

roger.o.mcclellan@att.net

Imoye®pnm.com

rmead@desertmtncorp.com

klif@desertmtncorp.com

Terry.Cooper@kirtland.af.mil

slacy@doeac.gov

mark.vigil@lafarge-na.com

rguca@rguca.org

dapotter@fs.fed.us

robby@swop.net

rlee@blm.gov

gbarkmann@fs.fed.us

swalters@cabq.gov

bhall@cabq.gov

ssummers@cabq.gov

aduran@cabq.gov

hydroinc@quest.net

Ithomas@geraldmartin.com

gprice@centexhomes.com

jjharrison@centexhomes.com

scarnes@nm.net

joek@acnm.org

jackson@high-desert.com

bvreeke@bhinc.com

slary@tierrawestllc.com

moisessanchez@terra.cl

dcampbell®Vogelcampbell.org

stevem@bernco.gov

jleckst@sandia.gov

hahwang@sandia.gov

aarmijo@bernco.gov

jevans@cabq.gov

rsanchez@generalgrowth.com

theresasanchez@cabq.gov

jkubica@cabq.gov

tagarcia@cabq.gov

mcandelaria@cabq.gov

bamaldonado@cabq.gov

sumshler@rcac.org

rmcclannahan@abqjournal.com

marius®Unm.edu

cblewett@mrcog-nm.gov

bives@mrcog-nm.gov

hnealson@rnrcog-nm.gov

ltollefson@mrcog-nm.gov

jim.wilson@etest.com

pgrice6622@aol.com

jlovato@amafca.org
aldaz@aps.edu

tcallaha@slo.state.nm.us

kwent2®Unm.edu

NButt@cabq.gov

mmontoya@gacc.org

craig.sloggett@bnsf.com

nelsonconsulting@quest.net

jay@horsemensvoice.com

nancygage@horsemensvoice.com

rbeverly8@msn.com

lwatson@unm.edu

kenneth.murphy®nmshtd.state.nm.us

sglass@cabq.gov

nelsonconsulting@qwest.net

BarryG@unm.edu

GGallegos@salud.unm.edu

broehm@wagnerequipment.com

gnerich@hotmail.com

lloydh@flash.net

bjbrockx@aol.com

gary.henderson@erm.com

mike.sullivan@Wmeng.com

mike@brnt-tank.com

sfettes@cabq.gov

jhamel@cabq.gov

tmiller@cabq.gov

dhogan@cabq.gov

ccaruso@cabq.gov

valcole@flash.net

fredambrozi@aol.com

mikehconsulting@aol.com

bgolden@bradburystamm.com

kmaesta@pnm.com

andrew.d.rnoen@intel.com

helen. Rinehart®genmills. com

DANIELDENTON@msn.com

John.Tenison@Valero.com

Kordzi.Joe@eparnail.epa.gov

tlucero@bernco.gov

sbulgrin@sandiapueblo.msn.us

polbarbara@7cities.net

poi36801@isletapueblo.com

jbrennan@abqjournal.com

NNorem@pnm.com

Rigney.Theresa@ev.state.az.us

danaanderson@fs.fed.us

cabeyta@zianet.com

ddailey@cabq.gov

apuglisi@sandiapueblo.nsn.us

swngaikido@yahoo.com

nmcga@RT66.com

rpate@nmsu.edu

gjoffel@comcast.net

299 subscribers

»»

»»
Alex Puglisi, Environmental Dir

Pueblo of Sandia

Box 6008

Bernalillo, NM 87004

Barbara Cywinska-Bernacik

Director, O.E.P.,Puebl0 ofLaguna

P.O. Box 194

Laguna,NM 87026

Rick Lislie, Environmental Spp.

Canoncito Navajo Indian Res.

P.O. Box 3498

Canoncito, NM 87026

Jim Piatt

Environmental Director

P.O. Box 1270

Isleta, NM 87022

Board Coordinator

Bernalillo County

INTER-OFFICE MAIL

County Manager's Office

Charles P. Luehr

14225 Copper Ave. NE, #C-305

Albuquerque,NM 87123-1859

John Waconda

BIA, Southwest Regional Office

PO Box 26567

Albuquerque, NM 87125

EXHIBIT

'--9L
Dr. Stephen Pilon, MD-City (Chair) Dr. Betty Chang, MDCM, PhD-City Vacant-City Vacant-City

Karen Wemwonh-County (Vice Chair) PHU) Silvennan-County Sue Umshler, Esg.,PE-County

Albuquerque / Bernalillo County

Air Quality Control Board

Mr. Isreal Tavarez - Designated Secretary to the Board

AGENDA

I

EXHIBIT

<t

Date: November 12, 2003 (Wednesday) Location:

Time: 5:15 pm County Committee Room B

Hearings: Proposed new regulation, Sulfur Dioxide Emissions Inventory IO'h Floor

Requirements; Western Backstop Sulfur Dioxide Trading Program, 20.11.46 AlbuquerquelBernalillo

New Mexico Administrative Code (NMAC), and r elated SIP bearing. County Government Center

Conclusion of bearings begun on October 8, 2003, regarding proposed 400 Marquette NW

amendments to Open Burning, 20.11.21 NMAC, and related SIP bearing; and Albuquerque, NM

regarding Section 309 Regional Haze SIP element.

NOTE CHANGE OF VENUE

General inquires regarding this agenda may be directed to Neal Butt, (505) 768-2660,

(NButt@cabq.gov).

Hearings

Hearing #1 Proposed new regulation, Sulfur Dioxide Emissions Inventory Requirements; Western

Backstop Sulfur Dioxide Trading Program, 20.11.46 NMAC, to meet the Regional Haze

requirements ofthe federal Clean Air Act and 40 CFR 51 Subpart P, Section 309.

Hearing #2 Proposal to incorporate 20.11.46 NMAC, Sulfur Dioxide Emissions Inventory

Requirements; Western Backstop Sulfur Dioxide Trading Program. into the New Mexico

State Implementation Plan (SIP) for air quality.

Hearing #3 Conclusion of hearing begun on October 8, 2003, regarding proposal to amend 20.11.21

NMAC, Open Burning, to meet the Regional Haze requirements of the federal Clean Air

Act and 40 CFR 51 SubpartP, Section 309.

Hearing #4 Conclusion of hearing begun on October 8, regarding proposal to incorporate an amended

Open Burning regulation into the SIP.

Hearing #5 Conclusion of hearing begun on October 8, regarding proposal to approve the Section 309

Regional Haze State Implementation Plan Element: Albuquerque/Bernalillo County, NM,

as part ofthe SIP.

Regular Monthly Meeting Agenda

CALL TO ORDER

Item #1

Item #2

Approval of the Agenda (Chair)

Read and approve the October 27, 2003 Special Meeting Minutes (Chair)

ACTION ITEMS

Item #3

Item #4

Decision regarding proposed new regulation, 20.11.46 NMAC, Sulfur Dioxide Emissions

Inventory Requirements; Western Backstop Sulfur Dioxide Trading Program .

Decision regarding whether to incorporate 20.11.46 NMAC, Sulfur Dioxide

Emissions Inventory Requirements; Western Backstop Sulfur Dioxide Trading Program

into the SIP.
Item #5

Item #6

Item #7

Item #8

REPORTS

Item #9

Item #10

Decision regarding proposed amendments to 20.11.21 NMAC, Open Burning

Decision regarding whether to incorporate amended 20.11.21 NMAC, Open Burning,

into the SIP.

Decision regarding whether to incorporate the' Section 309' Regional Haze element into

the SIP.

Request to hold a hearing on 20.11.20 NMAC, Fugitive Dust Control, in order to

establish an effective date that complies with requirements ofthe New Mexico Records

Center, and to adopt a related Part 20 amendment resolution. Request to consider a

replacement resolution directing staffto place the newly adopted Fugitive Dust Control

regulation into the SIP.

Air Quality Division (Isreal Tavarez)

Vehicle Pollution Management Division (Glen Dennis)

PRESENTATION

OTHER BUSINESS I ANNOUNCEMENTS

ADJOURNMENT

NEXT SCHEDULED BOARD MEETING: December 10, 2003

NOTICE TO PERSONS WITH DISABILITIES: Ifyou have a disabjfjty and require special assistance to participate in this meeting, please

call Neal Butt (505) 768-2(j(j() (Voice), (505) 768-2482 (!TY), as soon as possible prior to the meeting. Public documents, including agendas and

minutes, can be provided in various accessib/eformats with reasonable notice.
EXHIBIT

I 10

PROPOSED FLOOR AMENDMENT FOR 20.11.46 NMAC

FLOOR AMENDMENT 1:

On page 3, line 39 insert the word "all" after the word "means" and

insert the word "of' after the word "Sections".
ALBUQUERQUE / BERNALILLO COUNTY

AIR QUALITY CONTROL BOARD

PUBLIC HEARING

Incorporation of New Regulation

SULFUR DIOXIDE EMISSIONS INVENTORY

REQUIREMENTS; WESTERN BACKSTOP SULFUR

DIOXIDE TRADING PROGRAM, 20.11.46 NMAC

Into the

New Mexico State Implementation Plan (SIP)

for Air Quality

NOVEMBER 12, 2003

'EXHIBITS'
SIP EXHIBIT

1-1..

20.11.46.1 ISSUING AGENCY: AlbuquerquelBemalillo County Air Quality Control Board, P.O. Box

1293, Albuquerque, New Mexico 87103.

[12/31/03]

TITLE 20 ENVIRONMENTAL PROTECTION

CHAPTER I I ALBUQUERQUEIBERNALILLO COUNTY AIR QUALITY CONTROL BOARD

PART 46 SULFUR DIOXIDE EMISSIONS INVENTORY REQUIREMENTS; WESTERN

BACKSTOP SULFUR DIOXIDE TRADING PROGRAM

A. This Part is applicable to all geographic areas within Bernalillo County, New Mexico and within the

jurisdiction ofthe Albuquerque!Bernalillo County Air Quality Control Board.

B. Exempt: This Part does not apply to sources within Bernalillo County that are located on Indian lands over

which the AlbuquerqueIBernalillo County Air Quality Control Board lacks jurisdiction.

[12/31/03]

20.11.46.3 STATUTORY AUTHORITY: This Part is adopted pursuant to the authority provided in the

New Mexico Air Quality Control Act, NMSA 1978 Sections 74-2-4, 74-2-5; the Joint Air Quality Control Board

Ordinance; Bernalillo County Ordinance No. 94-5, Sections 4 and 5; and the Joint Air Quality Control Board

Ordinance, Revised Ordinances of Albuquerque 1994 Sections 9-5-1-3 and 9-5-1-4.

[12/31/03]

SCOPE:

DURATION: Permanent, except as provided in Section 20.11.46.5 NMAC.

20.11.46.2

20.11.46.4

[12/31103]

20,11.46.5 EFFECTIVE DATE: December 31, 2003, except where a later dste is cited at the end ofa

section, or as provided in 20.11.46.10 NMAC. However, ifthe EPA disapproves the AlbuquerqueIBemalillo

County Section 309 Regional Haze State Implementation Plan Element, this entire Part will no longer be effective

on the date ofofficial notification by the EPA to the Governor ofNew Mexico that the AlbuquerquelBernalillo

County Section 309 Regional Haze State Implementation Plan Element has been disapproved.

[12/31/03]

20.11.46.6 OBJECTIVE:

A. 20.11.46 NMAC implements the western backstop S02 trading program ("WEB trading

program") provisions required under the federal Regional Haze Regulation, 40 CFR 51.309, the

Albuquerque!Bemalillo county element ofthe state ofNew Mexico's Regional Haze Implementation Plan and

related requirements associated with the time period prior to the WEB trading program trigger date.

B. Nothing in 20.11.46 NMAC waives any requirement otherwise in effect or subsequently required

under another program, including regulations governing new sources.

[12/31/03)

20.11.46.7 DEFINITIONS: In addition to the defmitions in 20.11.46.7 NMAC, the definitions in 20.11.01

NMAC apply unless there is a conflict between defmitions, in which case the defmition in this Part shall govern.:

A. "Account certificate of representation" means the completed and signed submission required to

designste an account representative for a WEB source or an account representative for a general account.

B. "Account representative" means the individual who is authorized through an account certificate

ofrepresentation to represent owners and operators of the WEB source with regard to matters under the WEB

trsding program or, for a general account, who is authorized through an account certificate ofrepresentation to

represent the persons having an ownership interest in allowances in the general account with regard to mailers

concerning the general account.

C. "Act" means the federal Clean Air Act, as amended, 42 U.S.C. 7401, et seq.

I

2

3

4

5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

""'1'\ " A Co. lrJU.6.(' Page I Public Review Draft - October 5, 2003
I D."Actual emissions" means the total 8IUluai sulfur dioxide emissions detennined in accordance

2 with and 20.11.46.16 NMAC, or determined in accordance with 20.11.46.9 NMAC for sources that are not subject

3 to 20.11.46.16 NMAC.

4 E."Air Quality Control Board" or "AQCB" means the AlbuquerqueIBernalillo County AM

5 Quality Control Board.

6 F."Allocate" means to assign allowances to a WEB source through Section F(l) ofChapter VI of

7 the S02 milestones and backstop trading program implementation plan element.

8 G."Allowance" means the limited authorization under the WEB trading program to emit one ton of

9 S02 during a specified control period or any control period thereafter subject to the terms and conditions for use of

10 unused allowances as established by 20.11.46 NMAC.

II H. "Allowance limitation" means the tonnage ofS02 emissions authorized by the allowances

12 available for compliance deduction for a WEB source for a control period under 20.11.46.19 NMAC on the

13 allowance transfer deadline for that control period.

14 1. "Allowance tracking system" means the system developed by the department where allowances

15 under the WEB Trading Program are recorded, held, transferred and deducted.

16 J. "Allowance tracking system account" means an account in the allowance tracking system

17 .established for purposes ofrecording, holding, transferring, and deducting allowances.

18 K."Allowance transfer deadline" means the deadline established in Subsection B of 20.11.46.17

19 NMAC when allowances must be submitted for recording in a WEB source's compliance account in order to

20 demonstrate compliance for that control period.

21 L. "Compliance account" means an account established in the allowance tracking system under

22 Subsection A of20.11.46.15 NMAC for the purpose ofrecording allowances that a WEB source might hold to

23 demonstrate compliance with its allowance limitation.

24 M. "Compliance certification" means a submission to the Department by the Account

25 Representative as required under Subsection B of 20.11.46.19 NMAC to report a WEB source's compliance or

26 noncompliance with 20.11.46 NMAC.

27 N. "Control period" means the period beginning January I of each year and ending on December 31

28 ofthe same year, inclusive.

29 O. "Emission report or Inventory" means a listing, by source, ofthe amount of air pollutants

30 discharged into the atmosphere.

31 P. "Emissions tracking database" means the central database where S02 emissions for WEB

32 sources as recorded and reported in accordance with 20.11.46 NMAC are tracked to determine compliance with

33 allowance limitations.

34 Q. "Emission unit" or "unit" means any part of a stationary source that emits or would have the

35 potential to emit any pollutant regulated pursuant to the Clean AM Act.

36 R. "Existing source" means, a stationary source that commenced operation before the program

37 trigger date.

38 S. "Fugitive emissions" are those emissions that could not reasonably pass through a stack,

39 chimney, vent, or other functionally equivalent opening.

40 T. "General account" means an account established in the Allowance Tracking System under

41 20.11.46.15 NMAC for the purpose ofrecording allowances held by a person that are not to be used to show

42 compliance with an allowance limitation.

43 U. "Milestone" means the maximum level ofstationary source regional sulfur dioxide emissions for

44 each year from 2003 to 2018, established according to the procedures in Section A of the S02 milestones and

45 backstop trading program implementation plan.

46 V. "New source set-aside" means a pool of allowances that are available for allocation to new

47 sources in accordance with the provisions of Section F(3) ofChapter VI ofthe SO, milestones and

48 backstop trading program implementation plan element.

49 W. "New WEB source" means a WEB source that commenced operation on or after the program

50 trigger date.

51 X. "Owner or operator" means any person who is an owner or who operates, controls or supervises

52 a WEB source, and includes but is not be limited to any holding company, utility system or plant manager.

53 Y. "Part" means an air quality control regulation under Tide 20, Chapter II ofthe New Mexico

54 Administrative Code, unless otherwise noted, as adopted or amended by the AQCB.

55 Z. "Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant

56 under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit

.-

20.11.46 NMAC Page 2 Public Review Draft - October 5, 2003
an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or

amount of material combusted, stored or processed, shall be treated as part of its design if the limitation is

enforceable by the EPA Administrator.

AA. "Program trigger date" means the date that the department determines that the WEB trading

program has been triggered in accordance with the provisions of Section D ofChapter VI ofthe So, milestones and

backstop trading program implementation plan element.

BB. "Program trigger yean" means the years shown in Table 3, column 3, ofthe SO, milestones and

backstop trading program implementation plan element for the applicable milestone ifthe WEB trading program is

triggered as described in Chapter V(D) ofthe SO, milestones and backstop trading program implementation plan

element.

CC. "Renewable energy resource" means a resource that generates electricity by non-nuclear and

non-fossil technologies that results in low or no air emissions. The term includes electricity generated by wind

energy technologies; solar photovoltaic and solar thermal technologies; geothermal technologies; technologies based

on landfill gas and biomass sources, and new low-impact hydropower that meets the Low-Impact Hydropower

Institute criteria. Biomass includes agricultural, food and wood wastes. The term does not include pumped stomge

or biomass from municipal solid waste, black liquor, or treated wood.

DD. "Retired source" means a WEB source that has received a retired source exemption as provided

in Subsection E of 20.1 \.46.1 I !'/MAC. Any retired source resuming operations under Subsection E of20.1 \.46.11

!'/MAC, must submit its exemption as part ofits registration materials.

EE. "Serial number" means, when referring to allowances, the unique identification number assigned

to each allowance by the tracking systems administrator, in accordance with Subsection B of 20.1 \.46.14 !'/MAC.

FF. "SO, emitting unit" means any equipment that is located at a WEB source and that emits So,.

GG. "SO, milestones and backstop trading program implementation plan element" means

Section F ofChapter VI of the AlbuquerquelBemalillo County Section 309 Regional Haze State Implementation

Plan Element adopted by the AQCB on 11/12/03.

HH. "Stationary source" means any bUilding, structure, facility or installation that emits or may emit

any air pollutant subject to regulation under the Clean Air Act.

n. "Submit" means sent to the appropriate authority under the signature ofthe account

representative. For purposes of determining when something is submitted, an official U.S. Postal Service postmark,

or equivalent electronic time stamp, shall establish the date ofsubmittal

JJ. "Ton" means 2000 pounds and, for any control period, any fraction of a ton equaling 1000

pounds or more shall be treated as one ton and any fraction of a ton equaling less than 1000 pounds shall be treated

as zero tons.

KK. "Tracking system administrator" means the person designated by the Department as the

administrator ofthe Allowance Tmcking System and the emission tracking database.

LL. "WEB source" means a stationary source that meets the applicability requirements of

20.1 \.46.11 !'/MAC.

MM. "Western backstop sulfur dioxide (SO,) trading program" or "WEB trading program"

means Sections 20.1 \.46 NMAC, but not Section 20.1 \.46.9 NMAC, triggered as a backstop in accordance with the

provisions in the SO, milestones and backstop trading progmm implementation plan element to ensure that regional

SO, emissions are reduced.

[12/31/03]

I

2

3

4

5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

20.11.46.8

[12/31/03]

VARIANCES: No variances will be granted from requirements ofthis Part.

47

48

49

50

51

52

53

54

20.11.46.9 EMISSION TRACKING REQUIREMENTS FOR SULFUR DIOXIDE EMISSION

INVENTORIES: Beginning with the 2003 emission inventory, all stationary sources with actual emissions ofone

hundred (100) tons per year or more ofsulfur dioxide in the year 2000, or in any subsequent year, shall submit an

annual inventory ofsulfur dioxide emissions. A source that meets these criteria, and then emits less than 100 tons

per year in a later year shall submit a sulfur dioxide inventory for tracking compliance with the regional sulfur

dioxide milestones until the Western backstop sulfur dioxide trading program has been fully IIDplemented and

emission traeking has occurred under 20.11.46.16 NMAC.

- - .- .... Palle 3 Public Review Draft - October 5, 2003
I A. All sources meeting the criteria immediately above in 20.11.46.9 NMAC will be subject to the

2 following federally enforceable provisions:

3 (I) submit an annual inventory ofsulfur dioxide emissions;

4 (2) document the emissions monitoring/estimation methodology used, and demonstrate that the

5 selected methodology is acceptable under the inventory program;

6 (3) include emissions from start up, shut down, and upset conditions in the annual total inventory;

7 (4) use 40 CFR Part 75 methodology for reporting emissions for all sources subject to the federal

8 acid rain program;

9 (5) maintain all records used in the calculation ofthe emissions, including but not limited to the

10 following:

II (a) amount offuel consumed;

12 (b) percent sulfur content offuel and how the content'was determined;

13 (c) quantity ofproduct produced;

14 (d) emissions monitoring data;

15 (e) operating data; and

16 (I) how the emissions are calculated.

17 (6) maintain records of any physical changes to facility operations or equipment, or any other

18 changes that may affect the emissions projections; and

19 retain records for a minimum often years from the date of establishment, or ifthe record was the basis for an

20 adjuSbnent to the milestone, five years after the date of an implementation plan revision, whichever is longer.

21 B. Reporting Requirementa.

22 (I) Except as provided in Paragraph (2) of Subsection B of 20.11.46.9 NMAC, the owner or

23 operator shall submit the emission report by April I each year immediately following the year for which the

24 source is required to report emissions data.

25 (2) Sources for which a date for submitting an annual emission report is specified in a current

26 Operating Permit issued under 20.11.42 NMAC, Operating Permita, shall submit such report on the date specified in

27 the permit. The Department shall provide a copy ofthe previous emissions report upon request by the owner or

28 operator ofsuch source.

29 C. Emissions report contenta shall include:

30 (I) the name, address, and physical location ofthe stationary source;

31 (2) the name and telephone number ofthe person to contact regarding the emissions report;

32 (3) a certification signed by the owner, or operator, or a responsible official as defmed in

33 20.11.42 NMAC attesting that the statements and information contained in the emissions report are true and accurate

34 to the best knowledge and beliefofthe certifying official, and including the full name, title, signature, date of

35 signature, and telephone number ofthe certifying official. For sources subject to 20.11.42 NMAC, the certification

36 shall be made as required under 20.11.42 NMAC;

37 (4) smelters shall submit an annual report ofsulfur input, in tons/year;

38 (5) for each emission point additional information may be required by the Department:

39 (a) stack and exhaust gas parameters;

40 (b) type of control equipment and estimated control efficiency;

41 (c) schedule ofoperation;

42 (d) estimated actual emissions, including fugitive emissions and emissions occurring

43 during maintenance, start-ups, shutdowns, upsets, and downtime of[Delete all but sulfur oxides??] total suspended

44 particulate, PM", sulfur oxides, nitrogen oxides; carbon monoxide, volatile organic compounds, and lead in tons per

45 year and a description ofthe methods utilized to make such estimates, including calculations;

46 (e) the annual process or fuel combustion rates; and

47 (I) the fuel heat, sulfur, and ash content.

48 D. The department shall retain emission inventory records for non-utilities for 1996 and 1998 until

49 the year 2018 to ensure that changes in emissions monitoring techniques can be tracked.

50 [12/31/03]

51

52

53 20.11.46.10 WEB TRADING PROGRAM TRIGGER:

54 A. Except as provided in Subsection B of20.11.46.1 0, Sections 20.11.46.11 NMAC through

55 20.11.46.22 NMAC shall become effective on the program trigger date that is established in accordance with the

56 procedures outlined in the SO, milestones and backstop trading program implementation plan element.

20.11.46 NMAC Page 4 Public Review Draft - October 5, 2003
I B. 20.11.46.20 NMAC, Special Penalty Provisions for the Year 20 18 milestone, shall become

2 effective on January 1,2018 and shall remain effective Wltil the provisions of 20.11.46.20 NMAC have been fully

3 implemented.

4 [12/31/03]

5

6 20.11.46.11 WEB TRADING PROGRAM APPLICABILITY

7 A. General applicability: 20.11.46 NMAC applies to any stationary source or group ofstationary

8 sources that are located on one or more contiguous or adjacent properties and which are Wlder the control ofthe

9 same person or persons under common control, belonging to the same industrial grouping, and that are described in

10 Paragraphs (I) through (4) of Subsection B of 20.11.46.10 NMAC. A stationary source or group ofstationary

II sources shall be considered part of a single industrial grouping if all of the pollutant emitting activities at such

12 source or group ofsources on contiguous or adjacent properties belong to the same Major Group (i.e., all have the

13 same two-digit code) as described in the Standard Industrial Classification Manual, 1987.

14 B. The following are WEB sources:

15 (1) all BART-eligible sources as defined in 40 CFR 51.301 that are BART-eligible due to SO,

16 emissions.

17 (2) all stationary sources not meeting the criteria of Paragraph (I) of Subsection B of 20.11.46.11

18 NMAC, that have actual SO, emissions of 100 tons or more per year in the program trigger years or any subsequent

19 year. The fugitive emissions of a stationary source shall not be considered in determining whether it is a WEB

20 source Wlless the source belongs to one ofthe following categories ofstationary source:

21 (a) coal cleaning plants (with thermal dryers);

22 (b) kraft pulp mills;

23 (c) portland cement plants;

24 (d) primary zinc smelters;

25 (e) iron and steel mills;

26 (I) primary aluminum ore reduction plants;

27 (g) primary copper smelters;

28 (h) mWlicipal incinerators capable of charging more than 250 tons ofrefuse per day;

29 (I) hydrofluoric, sulfuric, or nitric acid plants;

30 (j) petroleum refmeries;

31 (k) lime plants;

32 (I) phosphate rock processing plants;

33 (m) coke oven batteries;

34 (n) sulfur recovery plants;

35 (0) carbon black plants (furnace process);

36 (P) primary lead smelters;

37 (q) fuel conversion plants;

38 (r) sintering plants;

39 (5) secondary metal production plants;

40 (t) chemical process plants;

41 (u) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal

42 units per hour beat input;

43 (v) petroleum storage and transfer units with a total storage capacity exceeding 300,000

44 barrels;

45 (w) taconite ore processing plants;

46 (x) glass fiber processing plants;

47 (y) charcoal production plants;

48 (z) fossil-fuel-fired steam electric plants of more than 250 million British thermal units per

49 hour beat input; or

50 (aa) any other stationary source category, which as of August 7,1980 is being regulated under

51 Section III or 112 ofthe Clean Air Act.

52 (3) a new source that begins operation after the program trigger date and bas the potential to emit

53 100 tons or more of SO, per year.

54 (4) the department may determine on a case-by-case basis, with concurrence from the EPA

55 Administrator, that a source defmed in Paragraph (2) of Subsection B of20.l1.46.I1NMAC is not a WEB

56 source if the source:

""'.1\ , 1 AI:. 'lJl..f Ar Pa~e 5 Public Review Draft - October 5, 2003
I (a) in each ofthe previous five years had actual SO, emissions ofless than 100 tons per year,

2 and

3 (b) had actual SO, emissions of 100 tons or more in a single year due to a temporary emission

4 increase that was caused by a sudden, infrequent, and not reasonably preventable failure of air pollution control

5 equipment, failure of process equipment, or a failure to operate in a normal or usual manner.

6 (c) took timely and reasonable action to minimize the temporary emission increase; and

7 (d) has corrected the failure of air pollution control equipment, process equipment, or process

8 by the time ofthe Department's determination under 20.11.46.IINMAC; or

9 (e) had to switch fuels or feedstocks on a temporary basis and as a result of an emergency

10 siillation or unique and unusual circumstances besides cost ofsuch fuels or feedstocks.

II (5) a temporary emission increase due to poor maintenance or careless operation does not meet the

12 criteria ofthis section.

13 C. Duration of program participation:

14 Except as provided for in Subsection D of 20.11.46.11 NMAC, once a source is subject to the WEB

15 trading program, it will remain in the program every year thereafter.

16 D. Application for retired source exemption:

17 (1) Any WEB source that is retired shall apply for a retired source exemption. The WEB source may

18 only be considered retired if all SO, emitting units at the source are retired. The application shall contain the

19 following information:

20 (a) identification ofthe WEB source, including plant name and an appropriate identification

21 code in a format specified by the department.

22 (b) name of account representative.

23 (c) description ofthe status ofthe WEB source, including the date that the WEB source was

24 retired.

25 (d) signed certification that the WEB source is retired and will comply with the requirements of

26 Subsection D of20.11.46.11 NMAC; and

27 (e) verification that the WEB source has a general account where any unused allowances or

28 future allocations will be recorded.

29 (1) Responsibilities ofretired sources: The retired source exemption becomes effective when the

30 department notifies the source that the retired source exemption has been granted.

31 (3) A retired source shall be exempt from 20.11.46.16 NMAC and 20.11.46.19 NMAC, except as

32 provided below.

33 (a) A retired source shall not emit any SO, after the date the retired source exemption is

34 effective.

35 (b) A WEB source shall submit SO, emissions reports, as required by Subsection 0 of

36 20.11.46.16 NMAC for any time period the SOUrce was operating prior to the effective date ofthe retired source

37 exemption. The retired source shall be subject to the compliance provisions of 20.11.46.19 NMAC, including the

38 requirement to hold allowances in the source's compliance account to cover all SO, emissions prior to the date the

39 source was permanently retired.

40 (c) A retired soUrce that is still in existence but no longer emitting SO, shall, for a period of

41 five years from the date the records are created, retain records demonstrating the effective date ofthe retired source

42 exemption for purposes ofthis part.

43 (4) Resumption ofoperations.

44 (a) Should a retired source desire to resume operation, the retired source shall submit

45 registration materials as follows:

46 (I) ifthe source is required to obtain a new source review permit or opernting permit

47 under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC prior to resuming operntion, then the

48 source shall submit registration information as described in 20.11.46.13 NMAC and a copy ofthe retired source

49 exemption with the application required under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61

50 NMAC;

51 (il) ifthe source is not required to obtain a new source review permit or operating permit

52 under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC prior to resuming operation, then the

53 source shall submit registration information as described in Subsection A of 20.11.46.13 NMAC and a copy ofthe

54 retired source exemption to the department at least ninety days prior to resumption ofoperation.

55 (b) The retired source exemption shall automatically expire on the day the source resumes

56 operation.

20.11.46 NMAC Page 6 Public Review Draft - October 5, 2003
I (5) Loss ofFuture Allowances: a WEB source that is retired and that does not apply to the

2 Department for a retired source exemption within ninety days ofthe date that the source is retired shall forfeit any

3 unused and future allowances. The abandoned allowances shall be retired by the Tracking System Administrator.

4 [12/31/03]

5

6 20.11.46.12 ACCOUNT REPRESENTATIVE FOR WEB SOURCES: Eacb WEB source must identify

7 one account representative and may also identify an alternate account representative wbo rnay act on behalf ofthe

8 account representative. Any representation, action, inaction or submission by the alternate account representative

9 will be deemed to be a representation, action, inaction Or submission by the account representative.

10 A. Identification and certification of an account representative:

II (1) The account representative and any alternate account representative shall be appointed by an

12 written agreement that makes the representations, actions, inactions or submissions ofthe account representative and

13 any alternate account representative binding on the owners and operators ofthe WEB source. A copy ofthe

14 agreement sball be provided to the department.

15 (2) The account representative shall submit to the department and the tracking system administrator a

16 signed and dated account certificate ofrepresentation (certificate) that contains the following elements:

17 (a) identification ofthe WEB source by plant name, state, and an appmpriate identification

18 code in a format specified by the departmen~

19 (b) the name, address, e-mail (if available), telepbone and facsimile number ofthe account

20 representative and any alternate;

21 (c) a list of owners and operators ofthe WEB source;

22 (d) information to be part ofthe emission tracking system database in accordance with the SO,

23 milestones and backstop trading program implementation plan element. The specific data elements shall be as

24 specified by the department to be consistent with the data system structure, and may include basic facility

25 information that may appear in other reports and notices submitted by the WEB source, sucb as county location,

26 industrial classification codes, and similar general facility information; and

27 (e) the following certification statement: "I certify that 1was selected as the account

28 representative or alternate account representative, as applicable, by an agreement binding on the owners and

29 operators ofthe WEB source. 1certify that 1have all the necessary authority to carry out my duties and

30 responsibilities under the WEB trading program on behalfofthe owners and operators ofthe WEB source and that

31 each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by

32 any decision or order issued to me by the department regarding the WEB trading program."

33 (3) Upon receipt by the department ofthe complete certificate, the account representative and any

34 alternate account representative represents and, by his or her representations, actions, inactions, or submissions,

35 legally binds eacb owner and operator ofthe WEB source in all matters pertaining to the WEB trading program. The

36 owners and operators shall be bound by any decision or order issued by the department regarding the WEB trading

37 program.

38 (4) No WEB allowance tracking system account shall be established for the WEB source until the

39 tracking system administrator has received a complete certificate. Once the account is established, the account

40 representative shall make all submissions concerning the account, including the deduction or tranafer of allowances.

41 B. Requirements and responsibilities:

42 (1) The responsibilities ofthe account representative include, but are not limited to, the transferring

43 of allowances, and the submission ofmonitoring plans, registrations, certification applications, SO, emissions data

44 and compliance reports as required by 20.11.46 NMAC, and represenling the source in all matters pertaining to the

45 WEB trading program.

46 (2) Eacb submission under this program sball be signed and certified by the account representative

47 for the WEB source. Eacb submission shall include the following truth and accuracy certification statement by the

48 account representative: "I am authorized to make this submission on behalf ofthe owners and operators ofthe WEB

49 source for whicb the submission is made. 1certify under penalty oflaw that 1bave personally examined, and am

50 familiar with, the statements and information submitted in this document and all its attachments. Based on my

51 inquiry ofthose individuals with primary responsibility for obtaining the information, 1certify that the statements

52 and information are to the best of my knowledge and belieftrue, accurate, and complete. 1am aware that there are

53 significant penalties for submitting false statements and information or omitting required statements and

54 information, including the possibility offine or imprisonment."

55 C. Cbanging the account representative or owners and operators:

?O 114~NMAC Page 7 Public Review Draft - October 5, 2003
I (1) Changes to the account representative or the alternate account representative. The Account

2 Representative or alternate Account Representative may be changed at any time by sending a complete superseding

3 certificate to the department and the tracking system administrator under Paragraph (3) of Subsection A of

4 20.11.46.12 NMAC, with the change taking effect upon receipt ofsuch certificate by the department.

5 Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous account

6 representative or alternate prior to the time and date when the tracking system administrator receives the superseding

7 certificate shall be binding on the new account representative and the owners and operators ofthe WEB source.

8 (2) Changes in owners and operators.

9 (a) Within 30 days of any change in the owners and operators ofthe WEB source, including

10 the addition of a new owner or operator, the account representative shall submit a revised certificate amending the

II list of owners and operators to include such change.

12 (b) In the event a new owner or operator of a WEB source is not included in the list of owners

13 and operators submitted in the certificate, such new owner or operator shall be deemed to be subject to and bound by

14 the certificate, the representations, actions, inactions, and submissions ofthe account representative ofthe WEB

15 source, and the decisions, orders, actions, and inactions ofthe department as ifthe new owner or operator were

16 included in such list.

17 [12/31/03]

18

19 20.11.46.13 REGISTRATION:

20 A. Deadlines.

21 (1) Each source that is a WEB source on or before the program trigger date ahall register by

22 submitting the initial certificate required in Subsection A of20.11.46.12 NMAC to the department no later than 180

23 days after the program trigger date.

24 (2) Any existing source that becomes a WEB source after the program trigger date shall register by

25 submitting the initial certificate required in Subsection A of 20.11.46.12 NMAC to the department no later than

26 September 30 ofthe year following the inventory year in which the source exceeded the emission threahold.

27 (3) Any new WEB source shall register by submitting the initial certificate required in Subsection A'

28 of 20.11.46.12 NMAC to the department prior to the commencement ofoperation.

29 B. Integration Into Permits.

30 (1) Any allocation, transfer or deduction of allowance to or from the compliance account of a WEB

31 source shall not require revision ofthe WEB source's operating pennit under 20.11.42 NMAC.

32 (2) After 20.11.46 NMSA is effective, a WEB source that is not required to have a pennit under

33 20.11.41 NMAC, 20.11.60 NMAC or 20.11.61 NMAC, must at all times possess a valid 20.11.42 NMAC pennit

34 that includes the requirements of 20.11.46 NMAC. Ifthe WEB source does not possess a Title V permit under

35 20.11.42 NMAC, it may satisfy the requirements paragraph (2) of Subsection B of20.11.46.13 NMAC by obtaining

36 or modifying apennit under 20.11.41, NMAC, 20.11.60 NMAC or 20.11.61 NMAC that incorporates the

37 requirements of20.11.46 NMAC. The source must at all times possess a valid pennit that includes these

38 requirements.

39 [12/31/03]

40

41 20.11.46.14 ALLOWANCE ALLOCATIONS:

42 A. The Tracking System Administrator shall record the allowances for each WEB source in the

43 compliance account for a WEB source once the allowances are allocated by the Department under Section FI of

44 Chapter VI ofthe SO, milestones and backstop trading program implementation plan element. If applicable, the

45 tracking system administrator shall also record a portion ofthe SO, allowances in a WEB source's special reserve

46 compliance account for any allowances held in accordance with Subsection B of20.11.46.16 NMAC.

47 B. The tracking system administrator shall assign a serial number to each allowance in accordance

48 with Section F2 ofthe So, milestones and backstop trading program implementation plan element.

49 C. All allowances shall be allocated, recorded, transferred, or used as whole allowances. To

50 detennine the number of whole allowances, the number of allowances ahall be rounded down for decimals leas than

51 0.50 and rounded up for decimals of0.50 or greater.

52 D. An allowance is not a property right, and is a limited authorization to emit one ton ofSo, valid

53 only for the purpose ofmeeting the requirements of20.11.46 NMAC. No provision oftltis WEB trading program or

54 other law should be construed to limit the authority ofthe United States or the department to terminate or limit such

55 authorization.

20.11.46 NMAC Page 8 Public Review Draft - October 5, 2003
I E. Early reduction bonus allocation: Any WEB source that, between 2003 and the program trigger

2 year, reduces permitted annual SO, emissions to a level that is below the floor level allocation established for that

3 source in Section FI ofChapter VI ofthe SO, milestones and backstop trading program implementation plan

4 element may apply to the department for an early reduction bonus allocation. The application shall be submitted no

5 later than ninety days after the program trigger date. Any WEB source that applies and receives early reduction

6 bonus allocations shall retain the records referenced below for a minimum offive years after the early reduction

7 bonus allowance is certified in accordance with Section FI(d) ofChapter VI ofthe SO, milestones and backstop

8 trading program implementation plan element. The application for an early reduction bonus allocation shall contain

9 the following information:

10 (1) copies of all permits or other enforceable documents that include annual SO, emissions limits for

II the WEB source during the period the WEB source was generating the early reductions. Such permits or

12 enforceable documents shall require monitoring for SO, emissions that meets the requirements in Subsection A and

13 Subsection C of 20.11.46.16 NMAC and monitoring provisions that were in effect one year prior to the beginning of

14 the credit generating period.

IS (2) copies of emissions monitoring reports, for one year prior to the beginning ofthe credit generating

16 period and for the period the WEB source was generating the early reductions, that document the actual annual SO,

17 emissions. The emissions monitoring reports during the credit generating period must demonstrate that the actual

18 annual SO, emissions were below the floor level allocation established for that source in Section F I ofChapter VI

19 ofthe SO, milestones and backstop trading program implementation plan element.

20 (3) demonstration that the floor level established for the source in accordance with Section FI of

21 Chapter VI ofthe SO, milestones and backstop trading program implementation plan element was calculated using

22 data that are consistent with the new monitoring methodology under Subsection A of20.11.46.16 NMAC. If new

23 monitoring techniques change the floor level for the source, then a demonstration ofthe new floor level based on

24 new monitoring techniques shall be included in the application.

25 F. Request for allowances for new WEB sources or modified WEB Sources.

26 (1) A new WEB source or an existing WEB source that has increased production capacity through a

27 permitted change in operations under 20.11.41 NMAC, 20.11.60 NMAC or 20.11.61 NMAC may apply to the

28 department for an allocation from the new source set-aside, as outlined in Section F3 ofChapter VI ofthe SO,

29 milestones and backstop trading program implementation plan element.

30 (a) A new WEB source is eligible to apply for an annual allocation equal to the permitted

31 annual SO, emission limit for that source after the source has commenced operation.

32 (b) An existing WEB source is eligible to apply for an annual allocation equal to the permitted

33 annual SO, emission limit for that source that is attributable to any amount of production capacity that is greater

34 than the permitted production capacity for that source as ofJanuary I, 2003.

35 (c) A source that has received a retired source exemption under Subsection D of20.11.46.11

36 NMAC is not eligible to apply for an alIocation from the new source set-aside.

37 (2) The application for an allocation from the new source set-aside shall contain the following

38 information:

39 (a) for existing WEB sources, documentation that shows the permitted production capacity of

40 the source before and after the new permit;

41 (b) for new WEB sources, documentation ofthe actual date ofthe commencement of operation

42 and a copy ofthe permit.

43 [12131/03]

44

45 20.11.46.15 ESTABLISHMENT OF ACCOUNTS:

46 A. Allowance tracking system accounts: All WEB sources shall open a compliance account. Any

47 person may open a general account for holding and transferring allowances. In addition, if a WEB source conducts

48 monitoring under Subsection B of20.11.46.16 NMAC, the WEB source shall open a special reserve compliance

49 account for allowances associated with units monitored under those provisions. The WEB source and account

50 representative shall have no rights to transfer allowances in or out ofsuch special reserve compliance account. The

51 department shall allocate allowances to the account in accordance with Paragmph (5) of Subsection B of 20.11.46.16

52 NMAC and all such allowances for each control period shall be retired each year to comply with 20.11.46.19

53 NMAC. To open either type of account, an application that contains the following information shall be submitted:

54 (1) the name, mailing address, e-mail address, telephone number, and facsimile number ofthe

55 account representative. For a compliance account, include a copy of the account certificate ofrepresentation ofthe

56 account representative and any alternate as required in Paragraph (2) of Subsection A of20.11.46.12 NMAC. For a

"')n 11 A~lJMAr_ Pa"e 9 Public Review Draft - October 5, 2003
I general account, include the account certificate ofrepresentation ofthe account representative and any alternate as

2 required in Paragraph (2) of Subsection C or 20.1 1.46.1 5 NMAC.

3 (2) the WEB source or organization name;

4 (3) the type of account to be opened; and

5 (4) a signed certification oftruth and accuracy by the account representative according to Paragraph

6 (2) of Subsection A of20.l 1.46.12 and for compliance accounts and for general accounts, a certification oftruth and

7 accuracy by the account representative according to Subsection D of20.1 1.46.15 NMAC.

8 B. Account representative for general accounts: For a general account, one account representative

9 shall be identified and an alternate account representative may be identified and may act on hehaIf ofthe account

10 representative. Any representation, action, inaction or submission by the alternate account representative shall be

II deemed to be a representation, action, inaction or submission by the account representative.

12 C. Identification and certification of an account representative for general accounts:

13 (I) The account representative and any alternate account representative shall be appointed by a

14 written agreement that makes the representations, actions, inactions or submissions ofthe account representative and

15 any alternate account representative binding on all persons who have an ownership interest with respect to

16 allowances held in the general account. A copy ofthe signed agreement shall be provided to the department.

17 (2) The account representative shall submit to the department and the trscking system administrstor a

18 signed and dated account certificate ofrepresentation (certificate) that contains the following elements:

19 (a) the name, address, e-mail (if available), telephone and facsimile number ofthe Account

20 Representative and any alternate;

21 (b) the organization name;

22 (c) the following certification statement: "I certify that I was selected as the account

23 representative or alternate account representative, as applicable, by an agreement binding on all persons who have

24 an ownership interest in allowances in the general account with regard to matters concerning the general account. I

25 certify that I have all the necessary authority to carry out my duties and responsibilities under the WEB trsding

26 program on behalfofsaid persons and that each such person shall be fully bound by my representations, actions,

27 inactions, or submissions and by any decision or order issued to me by the department regarding the general

28 account."

29 (3) Upon receipt by the department ofthe complete certificate, the account representative represents

30 and, by his or her representations, actions, inactions, or submissions, legally binds each person who has an

31 ownership interest in allowances held in the general account with regard to all matters concerning the general

32 account. Such persons shall be bound by any decision or order issued by the department.

33 (4) No WEB allowance trscking system general account shall be established until the tracking system

34 administrstor has received a complete certificate. Once the account is established, the account representative shall

35 make all submissions concerning the account, incll!ding the deduction or transfer of allowances.

36 D. Requirements and responsibilities: Each submission for the general account shall be signed and

37 certified by the account representative for the general account. Each submission shall include the following truth and

38 accuracy certification statement by the account representative: "I am authorized to make this submission on behalf

39 ofall person who have an ownership interest in allowances held in the general account. I certify under penalty of

40 law that I have personally examined, and am familiar with, the statements and information submitted in this

41 document and all its attachments. Based on my inquiry ofthose individuals with primary responsibility for

42 obtaining the information, I certify that the statements and information are to the best ofmy knowledge and belief

43 true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and

44 information or omitting required statements and information, including the possibility offme or imprisonment."

45 E. Changing the account representative: The account representative or alternate account

46 representative may be changed at any time by sending a complete superseding certificate to the department and the

47 trscking system administrator under Paragraph (2) of Subsection C of20.1 1.46.15 NMAC, with the change taking

48 effect upon receipt ofsuch certificate by the department. Notwithstanding any such change, all representations,

49 actions, inactions, and submissions by the previous account representative or alternate prior to the time and date

50 when the department receives the superseding certificate shall be binding on the new account representative and all

51 persons having ownership interest with respect to allowances held in the general account.

52 F Changes to the account: Any change to the information required in the application for an

53 existing account under Subsection A of 20.11.46.15 NMAC shall require a revision ofthe application.

54 [12131/03]

55

20.11.46 NMAC Page 10 Public Review Draft - October 5,2003
1 20.11.46.16 MONITORING, RECORDKEEPING AND REPORTING - GENERAL REQUIREMENTS

2 FOR MONITORING METHODS:

3 A. Each SO, emitting unit at a WEB source shall comply with the following, as applicable, to

4 monitor and record SO, mass emissions:

5 (1) if a unit is subject to 40 CFR Part 75 under a requirement separate from the WEB Trading

6 Program, the unit shall meet the requirements contained in 40 CFR Part 75 with respect to monitoring, recording and

7 reponing SO, mass emissions.

8 (2) if a unit is not subject to 40 CFR Part 75 under a requirement separate from the WEB trading

·9 program, a unit shall use one ofthe following monitoring methods, as applicable:

10 (a) a continuous emission monitoring system (CEMS) for SO, and flow that complies with all

11 applicable monitoring provisions in 40 CFR Part 75;

12 (b) ifthe unit is a gas- or oil-fIred combustion device, the excepted monitoring methodology in

13 appendix D to 40 CFR Part 75, or, if applicable, the low mass emissions (LME) provisions (with respect to SO,

14 mass emissions only) of Section 75.19 of40 CFR Part 75;

15 (0) one ofthe optional WEB protocols, if applicable, in 20.11.46.21 NMAC or 20.11.46.22

16 NMAC;or

17 (d) a petition for site-specific monitoring that the source submits for approval by the

18 department and approval by the EPA in accordance with Paragraph (5) of Subsection 0 of20.11.46.16 NMAC.

19 (3) A permanently retired unit shall not be required to monitor under Section 15 of20.11.46 NMAC

20 ifsuch unit was permanently retired and had no emissions for the entire period for which the WEB source

21 implements Paragraph (3) of Subsection A of20.11.46.16, and the account representative certifies in accordance

22 with Subsection B of20.11.46.19 NMAC that these conditions were met. In the event that a permanently retired

23 unit recommences operation, the WEB source shall meet the requirements of 20.11.46.16 NMAC in the same

24 manner as ifthe unit was a new unit.

25 B. Notwithstanding Subsection A of20.11.46.16 NMAC , the WEB source with a unit that meets one

26 of the conditions ofParagraph (I) of Subsection B of 20.1 1.46.16 NMAC may elect to have the provisions of

27 Paragraph (I) of Subsection B of20.11.46.16 NMAC apply to that unit.

28 (1) Any ofthe following units may implement Subsection B of20.11.46.16 NMAC:

29 (a) any smelting operation where all ofthe emissions from the operation are not dueled to a

30 stack; or

31 (b) any flare, except to the extent such flares are used as a fuel gas combustion device at a

32 petroleum refinery.

33 (0) any other type of unit without add-on SO, control equipment, if no control level was

34 assumed for the WEB source in establishing the floor level (and reducible allocation) provided in Section FI of

35 Chapter VI ofthe SO, milestones and backstop trading program implementation plan element.

36 (2) For each unit covered by Subsection B of20.11.46.16 NMAC, the account representative shall

37 submit a notice to request that Subsection B of20.11.46.16 NMAC applies to one or more SO, emitting units at a

38 WEB source. The notice shall be submitted in accordance with the compliance dates specified in Paragraph (I) of

39 Subsection M of 20.11.46.16 NMAC, and shall include the following information (in a format specified by the

40 department with such additional, related information as may be requested):

41 (a) a notice of all units at the applicable source, specifying which ofthe units are to be covered

42 by Subsection B of20.11.46.16 NMAC; and

43 (b) consistent with the emission estimation methodology used to determine the floor level (and

44 reducible allocation) for the source in accordance with Section F I ofChapter VI of the S02 milestones and backstop

4S trading program implementation plan element, the portion ofthe WEB source's overall allowance allocation that is

46 attributable to any unit(s) covered by Paragraph 2 of Subsection B of 20.11.46.16; and

47 (0) an identification of any such units that are permanently retired.

48 (3) For each new unit at an existing WEB source for which the WEB source seeks to comply with

49 this Subsection B of20.11.46.16 NMAC, and for which the account representative applies for an allocation under

50 the new source set-aside provisions of Subsection F of20.11.46.14 NMAC, the account representative shall submit a

51 modified notice under Paragraph (2) of Subsection B of20.11.46.16 NMAC, that includes such new SO, emitting

52 unit(s). The modified notice shall be submitted in accordance with the compliance dates in Paragraph (1) of

S3 Subsection M of20.11.46.16 NMAC, but no later than the date on which a request must be submitted under

54 Paragraph (I) of Subsection F of 20.11.46.14 NMAC for allocations from the set-aside.

55 (4) The department shall evaluate the information submitted by the WEB source in Paragrsphs (2)

56 and (3) of Subsection B of 20.11.46.16 NMAC, and may issue a notice to the source to exclude any units that do not

PaRe 11 Public Review Draft - October 5, 2003
I qualify under this Subsection B of20.11.46.16 NMAC or to adjust the portion of allowances attributable to unita

2 that do qualify to be consistent with the emission estimation methodology used to establish the floor level (and

3 reducible allocation) for the source.

4 (5) The department shall allocate allowances equal to the adjusted portion ofthe WEB source's

5 allowances under Paragraphs (2), (3), and (4) of Subsection B of 20.11.46.16 NMAC in a special reserve

6 compliance account provided that no such treannent ofthe WEB source's allocation will be required for any unit

7 that is permanently retired and had no emissions for the entire period for which the WEB source implementa this

8 Subsection B and the account representative certifies in accordance with 20.11.46.19 NMAC that these conditions

9 are met. In the event that a permanently retired unit recommences opemtion, the WEB source ahall meet the

10 requirementa ofthis Section 20.11.46.16 NMAC in the same manner as ifthe unit was a new unit.

11 (6) For each unit under this Subsection B of20.11.46.16 NMAC, the account representative for a

12 WEB source shall submit an annual emissions statement in accordance with Subsection

°of20.11.46.16 NMAC.

13 The WEB source shall maintain operating records sufficient to estimate annual emissions in a manner consistent

14 with the emission estimation methodology used to establish the floor level (and reducible allocation) for the source.

15 In addition, ifthe estimated emissions from all such unita at the WEB source are greater than the allowances for the

16 current control year held in the special reserve compliance account under Paragraph (5) of Subsection B of

17 20.11.46.16 NMAC for the WEB source, the account representative shall report the excess amount as part ofthe

18 annual report for the WEB source under 20.11.46.19 NMAC and the WEB source shall use other allowances in the

19 standard compliance account for the WEB source to account for such emissions, in accordance with

20 20.11.46.19NMAC.

21 (7) The remaining provisions of 20.1 1.46.16 NMAC shall not apply to unita covered by Subsection B

22 of 20.11.46.16 NMAC except where otherwise noted.

23 (8) A WEB source may opt to modify the monitoring for an SO, emitting unit to use monitoring

24 under Subsection A of20.11.46.16 NMAC, but any such monitoring change shall take effect on January I ofthe

25 next compliance year. In addition, the account representative shall submit an initial monitoring plan at least 180

26 days prior to the date on which the new monitoring will take effect and a detailed monitoring plan in accordance

27 with Subsection D of20.11.46.16 NMAC. The account representative shall also submit a revised notice under

28 Subsection B of20.11.46.16 NMAC at the same time that the initial monitoring plan is submitted.

29 C. For any monitoring that the WEB source uses under 20.11.46.16 NMAC (including Paragmph

30 (I», the WEB source (and, as applicable, the account representative) shall implement, certify, and use such

31 monitoring in accordance with 20.11.46.16 NMAC, and shall record and report the data from such monitoring as

32 required in 20.11.46.16 NMAC . In addition, the WEB source (and, as applicable, the account representative) ahall

33 not:

34 (1) except for an alternative approved by the EPA Administrator for a WEB source that implementa

35 monitoring under Paragmph (I) of Subsection A of20.11.46.16 NMAC, use an alternative monitoring system,

36 alternative reference method or another alternative for the required monitoring method without having obtained

37 prior written approval in accordance with Paragmph (5) of Subsection

°of 20.11.46.16 NMAC;

38 (2) opemte an SO, emitting unit so as to discharge, or allow to be discharged, SO, emissions to the

39 annosphere without accounting for these emissions in accordance with the applicable provisions of20.l1.46.16

40 NMAC;

41 (3) disrupt the approved monitoring method or any portion thereof, and thereby avoid monitoring and

42 recording SO, mass emissions discharged into the annosphere, except for periods ofrecertification or periods when

43 calibmtion, quality assurance testing or maintenance is performed in accordance with the applicable provisions of

44 20.11.46.16 NMAC ; or

45 (4) retire or permanently discontinue use of an approved monitoring method, except under one ofthe

46 following circumstances:

47 (a) During a period when the unit is exempt from the requirementa of20.11.46.16 NMAC,

48 including retirement ofa unit as addressed in Paragmph (3) of Subsection A of 20.11.46.16 NMAC;

49 (h) The WEB source is monitoring emissions from the unit with another certified monitoring

50 method approved under 20.11.46.16 NMAC for use at the unit that provides data for the same parameter as the

51 retired or discontinued monitoring method; or

52 (c) The account representative submita notification ofthe date of certification testing of a

53 replacement monitoring system in accordance with 20.11.46.16 NMAC , and the WEB source recertifies thereafter a

54 replacement monitoring system in accordance with the applicable provisions of 20.11.46.16 NMAC .

20.11.46 NMAC Page 12 Public Review Draft - October 5, 2003
I D. Monitoring plan general provisions:. The WEB source of an SO, emitting unit that uses a

2 monitoring method under Paragraph (2) of Subsection A of 20.11.46.16 NMAC shall meet the following

3 requirements:

4 (1) prepare and submit to the Department an initial monitoring plan for each monitoring method that

5 the WEB source uses to comply with 20.11.46.16 NMAC. In accordance with Subsection F of 20.11.46.16 NMAC,

6 the plan shall contain sufficient information on the units involved, the applicable method, and the use of data derived

7 from that method to demonstrate that all unit SO, emissions are monitored and reported. The plan shall be submitted

8 in accordance with the compliance deadlines specified in Subsection M of20.1 1.46.16 NMAC.

9 (2) prepare, maintain and submit to the department a detailed monitoring plan prior to the first day of

10 certification testing in accordance with the compliance deadline specified in Subsection M of 20.11.46.16 NMAC

II The plan sball contain the applicable information required by Subsection D of 20.1 1.46.16 NMAC. The department

12 may require that the monitoring plan (or portions thereof) be submitted electronically. The department also may

13 require that the plan be submitted on an ongoing basis in electronic format as part ofthe quarterly report submitted

14 under Paragmph (I) of Subsection 0 of20.1 1.46.16 NMAC or resubmitted separately after any change is made to

15 the plan in accordance with the following Paragraph (3) of Subsection D of20.1 1.46.16 NMAC.

16 (3) whenever the WEB source makes a replacement, modification, or change in one ofthe systems or

17 methodologies provided for in Paragmph (2) of Subsection A of 20.11.46.16 NMAC, including a change in the

18 automated data acquisition and handling system or in the flue gas handling system, that aflects information reported

19 in the monitoring plan (e.g., a change to serial number for a component ofa monitoring syatem), then the WEB

20 source shall update the monitoring plan in accordance with the compliance deadline apecified in Subsection M of

21 20.11.46.16 NMAC.

22 E. A WEB source with an SO, emitting unit that uses a method under Paragraph (I) of Subsection A

23 of20.1 1.46.16 NMAC (a unit subject to 40 CFR Part 75 under a progmm other than this WEB Tmding Progmm)

24 shall meet the requirements of Subsection D through Subsection I of20.1 1.46.16 NMAC by preparing, maintaining

25 and submitting a monitoring plan in accordance with the requirements of 40 CFR Part 75, provided that the WEB

26 source also shall submit the entire monitoring plan to the department upon request.

27 F. Initial monitoring plan: The account representative shall submit an initial monitoring plan for

28 each So, emitting unit (or group of units sharing a common methodology) that, except as otherwise specified in an

29 applicable provision in 20.11.46.21 NMAC, contains the following information:

30 (1) for all So, emitting units involved in the monitoring plan:

31 (a) plant name and location;

32 (b) plant and unit identification numbers assigned by the department;

33 (c) type of unit (or units for a group of units using a common monitoring methodology);

34 (d) identification of all stacks or pipes associated with the monitoring plan;

35 (e) types offuel(s) fired (or sulfur containing process materials used in the So, emitting unit),

36 and the fuel classification ofthe unit if combusting more than one type offuel and using a 40 CFR Part 75

37 methodology;

38 (I) type(s) of emissions controls for So, installed or to be installed, including specifications of

39 whether such controls are pre-<:ombustion, post-combustion, or integral to the combustion process;

40 (g) maximum hourly heat input capacity, or process throughput capacity, ifapplicable;

41 (h) identification of all units using a common stack; and

42 (I) indicator ofwhether any stack identified in the plan is a bypass stack.

43 (2) for each unit and pammeter required to be monitored, identification ofmonitoring methodology

44 information, consisting ofmonitoring methodology, monitor locations, substitute data approach for the

45 methodology, and geneml identification ofquality assurance procedures. Ifthe proposed methodology is a site46 specific methodology submitted pursuant to Subparagraph (d) ofparagraph (2) of Subsection A of 20.1 1.46.16

47 NMAC, the description under Paragraph (2) of Subsection D of 20.1 1.46.16. shall describe fully all aspects ofthe

48 monitoring equipment, installation locations, opemting characteristics, certification testing, ongoing quality

49 assurance and maintenance procedures, and substitute data procedures.

50 (3) ifthe WEB source intends to petition for a change to any specific monitoring requirement

51 otherwise required under 20.11.46.16 NMAC , such petition may be submitted as part ofthe initial monitoring plan.

52 (4) The department may issue a notice of approval or disapproval ofthe initial monitoring plan based

53 on the compliance ofthe proposed methodology with the requirements for monitoring in 20.11.46.16 NMAC .

54 G. Detailed monitoring plan: The account representative shall submit a detailed monitoring plan

55 that, except as otherwise specified in an applicable provisions in 20.11.46.21 NMAC or 20.11.46.22 NMAC, shall

56 contain the following information:

PaRe 13 Public Review Draft - October 5, 2003
I (1) identification and description of each monitoring component (including each monitor and its

2 identifiable components, such as analyzer or probe) in a CEMS (e.g., SO, pollutant concentration monitor, flow

3 monitor, moisture monitor), a 40 CFR Part 75, appendix D monitoring system (e.g., fuel flowmeter, data acquisition

4 and handling system), or a protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC, including:

5 (8) manufacturer, model number and serial number;

6 (h) component or system identification code assigned by the facility to each identifiable

7 monitoring component, such as the analyzer or probe;

8 (c) designation ofthe component type and method ofsample acquisition or operation (e.g., in

9 situ pollutant concentration monitor or thermal flow monitor);

10 (d) designation ofthe system as a primary or backup system;

II (e) first and last dates the system reported data;

12 (I) status ofthe monitoring component; and

13 (g) panuneter monitored.

14 (2) identification and description of all major hardware and software components ofthe automated

15 data acquisition and handling system, including:

16 (8) hardware components that perform emission calculations or store data for quarterly

17 reporting purposes (provide the manufacturer and model number); and

18 (h) software components (provide the identification ofthe provider and model or version

19 number).

20 (3) explicit formulas for each measured emissions panuneter, using component or system

21 identification codes for the monitoring system used to measure the parameter that links the system observations with

22 the reported concentrations and mass emissions. The formulas shall contain all constants and factors required to

23 derive mass emissions from component Or system code observations and an indication ofwhether the formula is

24 being added, corrected, deleted, or is unchanged. The WEB source with a low mass emissions unit for which the

25 WEB source is using the optional low mass emissions excepted methodology in Section 75.19(c) of40 CFR Part 75

26 is not required to report such formulas.

27 (4) inside cross-sectional area (square feet) at flow monitoring location (for units with flow monitors,

28 only).

29 (5) ifusing CEMS for SO, and flow, for each panuneter monitored: scale, maximum potential

30 concentration (and method of calculation), maximum expected concentration (if applicable) (and method of

31 calculation), maximum potential flow rate (and method of calculations), span value, full-seale range, daily

32 calibration units ofmeasure, span effective date and hour, span inactivation date and hour, indication ofwhether

33 dual spans are reqUired, default high range value, flow rate span, and flow rate span value and full scale value in

34 standard cubic feet per hour (seth) for each unit or stack using SO, or flow component monitors.

35 (6) ifthe monitoring system or excepted methodology provides for use of a constant, assumed, or

36 default value for a parameter under specific circumstances, then the following information for each value ofsuch

37 parameter shall be included:

38 (8) identification ofthe panuneter;

39 (h) default, maximum, minimum, or constant value, and units ofmeasore for the value;

40 (c) purpose ofthe value;

41 (d) indicator of use during controlled and uncontrolled hours;

42 (e) types offuel;

43 (I) source ofthe value;

44 (g) value effective date and hour;

45 (h) date and hour value is no longer effective (if applicable); and

46 (i) for units using the excepted methodology under Section 75.19 of 40 CFR Part 75, the

47 applicable SO, emission factor.

48 (7) unless otherwise specified in Section 6.5.2.1 of appendix A to 40 CFR Part 75, for each unit or

49 common stack on which hardware CEMS are inatalled:

50 (a) the upper and lower boundaries ofthe range of operation (as dermed in Section 6.5.2.1 of

51 appendix A to 40 CFR Part 75), or thousand oflblhr ofsteam, or ftlsec (as applicable);

52 (b) the load or operating level(s) designated as normal in section 6.5.2.1 of appendix A to 40

53 CFR Part 75, or thousands of pounds per hour Iblhr ofsteam, or feet per second ftlsec (as applicable);

54 (c) the rwo load or operating levels (i.e., low, mid, or high) identified in section 6.5.2.1 of

55 appendix A to 40 CFR Part 75 as the most frequently used;

·.

20.11.46 NMAC Page 14 Public Review Draft - October 5, 2003
I (d) the date ofthe data analysis used to determine the normal load (or operating) level(s) and

2 the two most frequently-used load (or operating) levels; and

3 (e) activation and deactivation dates when the normal load or operating level(s) change and are

4 updated.

5 (8) for each unit that is complying with 40 CFR Part 75 for which the optional fuel flow-to-Ioad test

6 in Section 2.1.7 of appendix D to 40 CFR Part 75 is used:

7 (a) the upper and lower boundaries ofthe range ofoperation (as defmed in Section 6.5.2.1 of

8 appendix A to 40 CFR Part 75), expressed in thousand ofIbIhr ofsteam;

9 (b) the load level designated as normal, pursuant to Section 6.5.2.1 of appendix A to 40 CFR

10 Part 75, expressed in thousanda oflblbr ofsteam; and

II (c) the date ofthe load analysis used to determine the normal load level.

12 (9) information related to quality assurance testing, including (as applicable): identification ofthe

13 test strategy; protocol for the relative accuracy test audit; other relevant test information; calibration gas levels

14 (percent ofspan) for the calibmtion error test and linearity check; calculations for determining maximum potential

15 concentration, maximum expected concentration (if applicable), maximum potential flow mte, and span;

16 (10) if applicable, apportionment strategies under Sections 75.10 through 75.18 of40 CFR Part 75.

17 (11) description ofsite locations for each monitoring component in a monitoring system, including

18 schematic diagmms and engineering dmwings and any other documentation that demonstrates each monitor location

19 meets the appropriate siting criteria. For units monitored by a continuous emission monitoring system, diagmms

20 shall include:

21 (a) a schematic diagmm identifying entire gas handling system from unit to stack for all units,

22 using identification numbers for units, monitor components, and stacks corresponding to the identification numbers

23 provided in the initial monitoring plan and Paragraphs (I) and (3) of Subsection G of20.11.46.16 NMAC. The

24 schematic diagmm must depict the height of any monitor locations. Comprehensive or separate schematic diagmms

25 shall be used to describe groups of units using a COmmon stack.

26 (b) stack and duct engineering diagmms showing the dimensions and locations offans, turning

27 vanes, air preheaters, monitor components, probes, reference method sampling pons, and other equipment that

28 affects the monitoring system location, performance, or quality control checks.

29 (12) a data flow diagram denoting the complete information handling path from output signals of

30 CEMS components to final repons.

31 H. In addition to supplying the information in Subsections F and G above, the WEB source with an

32 SO, emitting unit using either ofthe methodologies in Subparagraph (b) ofParagraph (2) of Subsection A of

33 20.11.46.16 NMAC shall include the following information in its monitoring plan for the specific situations

34 described:

35 (1) for each gas-fued or oil-fired SO, emitting unit for which the WEB source uses the optional

36 protocol in appendix D to 40 CFR Pan 75 for SO, mass emissions, the WEB source shall include the following

37 information in the monitoring plan:

38 (a) parameter monitored;

39 (b) type offuel measured, maximum fuel flow mte, units of measure, and basis of maximum

40 fuel flow rate (i.e., upper range value or unit maximum) for each fuel flowmeter;

41 (c) test method used to check the accuracy of each fuel flowmeter;

42 (d) submission status ofthe data;

43 (e) monitoring system identification code;

44 (I) the method used to demonstrate that the unit qualifies for monthly gross calorific value

45 (OCY) sampling or for daily or armual fuel sampling for sulfur content, as applicable;

46 (g) a schematic diagmm identifying the relationship between the unit, all fuel supply lines, the

47 fuel flowmeter(s), and the stack(s). The schematic diagram must depict the installation location of each fuel

48 flowmeter and the fuel sampling location(s). Comprehensive and separate schematic diagrams shall be used to

49 describe groups of units using a common pipe;

50 (b) for units using the optional default SO, emission mte for "pipeline natuml gas" or "natural

51 gas" in appendix D to 40 CFR Pan 75, the information on the sulfur content ofthe gaseous fuel used to demonstrate

52 compliance with either Section 2.3.1.4 or 2.3.2.4 of appendix D to 40 CFR Pan 75;

53 (i) for units using the 720 hour test under Section 2.3.6 of appendix D to 40 CFR Pan 75 to

54 determine the required sulfur sampling requirements, report the procedures and results ofthe test; and

55 (j) for units using the 720 hour test under Section 2.3.5 of appendix D to 40 CFR Part 75 to

56 determine the appropriate fuel GCY sampling frequency, report the procedures used and the results ofthe test.

")n 11 A':; l\B..fAr PubHc Review Draft - October 5. 2003
I (2) for each So, emitting unit for which the WEB source uses the low mass emission excepted

2 methodology ofsection 75.19 to 40 CFR Part 75, the WEB source shall include the following information in the

3 monitoring plan that accompanies the initial certification application:

4 (a) the results ofthe analysis performed to qualify as a low mass emissions unit under Section

5 75.19(c) to 40 CFR Part 75. This report shall include either the previous three years actual or projected emissions.

6 The following items shall be included: a) current calendar year of application; b) type of qualification; c) years one,

7 two, and three; d) annual measured, estimated or projected SO, mass emissions for years one, two, and three; and e)

8 annual operating hours for years one, two, and three.

9 (b) a schematic diagram identifying the relationship between the unit, all fuel supply lines and

10 tanks, any fuel flowmeter(s), and the stack(s). Comprehensive or separate schematic disgrams shall be used to

II describe groups of units using a common pipe;

12 (c) for units which use the long term fuel flow methodology under section 75.19(c)(3) to 40

13 CFR Part 75, a diagram ofthe fuel flow to each unit or group of units and a detailed description ofthe procedures

14 used to determine the long term fuel flow for a unit or group of units for each fuel combusted by the unit or group of

15 units;

16 (d) a statement that the unit burns only gaseous fuel(s) and/or fuel oil and a list ofthe fuels that

17 are burned or a statement that the unit is projected to bum only gaseous fuel(s) and/or fuel oil and a list ofthe fuels

18 that are projected to be burned;

19 (e) a statement that the unit meets the applicability requirements in Sections 75.19(a) and (b) to

20 40 CFR Part 75 with respect to SO, emissions; and

21 (I) any unit historical actual, estimated and projected SO, emissions data and calculated SO,

22 emissions data demonstrating that the unit qualifies as a low mass emissions unit under Sections 75.19(a) and (b) to

23 40 CFR Part 75.

24 (3) for each gas-fired unit the WEB source shall include the following in the monitoring plan: current

25 calendar year, fuel usage data as specified in the defmition ofgas-fired in Section 72.2 of40 CFR Part 72, and an

26 indication ofwhether the data are aCOl8I or projected data.

27 I. The specific elements of a monitoring plan under Subsection 0 of20.11.46.16 NMAC shall not be

28 part of an operating permit for a WEB source issued in accordance with the Title V ofthe Clean Air Act, and

29 modifications to the elements ofthe plan shall not require a permit modification.

30 J. Certification and recertification:

31 (1) All monitoring systems are subject to initial certification and recertification testing as specified in

32 40 CFR Part 75, 20.11.46.21 NMAC or; 20.11.46.22 NMAC. Certification or recertification of a monitoring system

33 by the EPA for a WEB source that is subject to 40 CFR Part 75 under a requirement separate from 20.11.46 NMAC

34 shall constitute certification under the WEB Trading Program.

35 (2) The WEB source with an So, emitting unit not otherwise subject to 40 CFR Part 75 that monitors

36 SO, mass emissions in accordance with 40 CFR Part 75 to satisfy the requirements of20.11.46.16 NMAC shall

37 perform all ofthe tests required by that regulation and shall submit the following:

38 (a) a test notice, not later than 21 days before the certification testing ofthe monitoring system,

39 provided that the department may establish additional requirements for adjusting test dates after this notice as part of

40 the approval of the initial monitoring plan under Subsection F of 20.11.46.16 NMAC;

41 (b) an initial certification application within 45 days after testing is complete.

42 (c) A monitoring system shall be considered provisionally certified while the application is

43 pending, and the system shall be deemed certified ifthe department does not approve or disapprove the system

44 within six montha after the date on which the application is submitted.

45 (d) Both at the time ofthe initial certification or recertification application submission and at

46 the time ofthe audit, if an audit of any monitoring certified under 20.11.46 NMAC, and a review ofthe initial

47 certification or recertification application, reveal that any system Or component should not have been certified Or

48 recertified because it did not meet a particular performance specification or other requirement of 20.11.46 NMAC,

49 the department will issue a notice of disapproval ofthe certification status ofsuch system or component. For the

50 purposes of Paragraph (2) of Subsection J of 20.11.46.16 NMAC, an audit shall be either a field audit ofthe facility

51 or an audit of any information submitted to the department regarding the facility. By issuing the notice of

52 disapproval, the certification status is revoked prospectively, and the data measured and recorded shall not be

53 considered valid quality-assured data from the date of issuance ofthe notification ofthe revoked certification status

54 until the date and time that the WEB source completes subsequently approved initial certification or recertification

55 tests in accordance with the procedures in Subsection J of 20.11.46.16 NMAC. The WEB source shall apply the

."

20.11.46 NMAC Page 16 Public Review Draft - October 5, 2003
I substitute data procedures in Subsection L of 20.11.46.16 NMAC to replace, prospectively, all ofthe invalid,

2 non-quality-assured data for each disapproved system or component.

3 K. Ongoing quality assurance and quality control: The WEB source shall satisfy the applicable

4 quality assurance and quality control requirements of40 CFR Part 75 or, ifthe WEB source is subject to a WEB

5 protocol in 20.11.46.21 NMAC, the applicable quality assurance and quality control requirements in 20.11.46.21

6 NMAC on and after the date that certification testing commences.

7 L. Substitute data procedures:

8 (I) For any period after certification testing is complete in which quality assured, valid data are not

9 being recorded by a monitOring system certified and opemting in accordance with 20.11.46 NMAC, missing or

10 invalid data shall be replaced with substitute data in accordance with 40 CFR Part 75 or, ifthe WEB source is

II subject to a WEB protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC, with substitute data in accordance with

12 20.11.46.21 NMAC.

13 (2) For an SO, emitting unit that does not have a certified Or provisionally certified monitoring

14 system in place as ofthe beginniog ofthe fmt control period for which the unit is subject to the WEB tmding

15 progmm, the WEB source sball:

16 (a) ifthe WEB Source will use a CEMS to comply with Section 16 of20.11.46 NMAC,

17 substitute the maximum potential concentration of SO, for the unit and the maximum potential flow mte, as

18 determined in accordance with 40 CFR Part 75. The procedures for conditional data validation under Section

19 75.20(b)(3) may be used for any monitoring system under 20.11.46 NMAC that uses these 40 CFR Part 75

20 procedures, as applicable;

21 (b) if the WEB source will use the 40 CFR Part 75 appendix D methodology, substitute the

22 maximum potential sulfur content, density or gross calorific value for the fuel and the maximum potential fuel flow

23 mte, in accordance with Section 2.4 of appendix D to 40 CFR Part 75;

24 (c) if the WEB source will use the 40 CFR Part 75 methodology for low mass emissions units,

25 substitute the SO, emission factor required for the unit as specified in 40 CFR 75.19 and the maximum rated hourly

26 heat input, as defined in 40 CFR 72.2; or

27 (d) ifusing a protocol in 20.11.46.21 NMAC or 20.11.46.22 NMAC , follow the procedures in

28 the applicable protocol.

29 M. Compliance deadline:

30 (I) The initial monitoring plan shall be submitted by the following dates:

31 (a) for each source that is a WEB source on or before the Progmm Trigger Date, the

32 monitoring plan aball be submitted 180 days after such Progmm Trigger Date.

33

34 (b) for any existing source that becomes a WEB source after the progmm trigger date, the

35 monitoring plan shall be submitted by September 30 ofthe year following the inventory year in which the source

36 exceeded the emissions threabold.

37 (c) for any new WEB source, the monitoring plan sball be included with the permit application

38 under 20.11.41 NMAC, 20.11.42 NMAC, 20.11.60 NMAC or 20.11.61 NMAC.

39 (2) A detailed monitoring plan under Subsection E of 20.11.46.16 NMAC sball be submitted no later

40 than 45 days prior to commencing certification as required by Paragraph (3) of Subsection M of20.11.46.16

41 NMAC.

42 (3) Emission monitoring systems shall be installed, opemtional and shall have met all ofthe

43 certification testing requirements oflhis 20.11.46.16 NMAC (including any referenced in 20.11.46.21 NMAC or

44 20.11.46.22 NMAC ) by the following dates:

45 (a) for each source that is a WEB source on or before the progmm trigger date, two years prior

46 to the start ofthe fmt control period as described in 20.11.46.19 NMAC.

47 (b) for any existing source that becomes a WEB source after the progmm trigger date, one year

48 after the due date for the monitoring plan under Subparagmph (b) of Paragraph (2) of Subsection M of20.11.46.16

49 NMAC.

50 (c) for any new WEB source, or any new unit at a WEB source under Subparagmph (a) or (b)

51 of paragmph (3) of Subsection M of20.11.46.16 NMAC, , the earlier of90 unit operating days or 180 calendar days

52 after the date the new source commences operation.

53 (4) The WEB source shall submit test notices and certification applications in accordance with the

54 deadlines set forth in Paragmph (2) of Subsection J of 20.11.46.16 NMAC

55 (5) For each applicable control period, the WEB source shall submit each quarterly report under

56 Subsection 0 of20.11.46.16 NMAC by no later than 30 days after the end of each calendar quarter and aball submit

Palle 17 Public Review Draft - October 5, 2003
I the annual report under Subsection a of20.11.46.16 NMAC no later than 60 days after the end of each calendar

2 year.

3 N. Recordkeeplng:

4 (1) Except as provided in Paragraph (2) of Subsection N of20.11.46.106 NMAC, the WEB source

5 shall keep copies of an reports, registration materials, compliance certifications, sulfur dioxide emissions data,

6 quality assurance data, and other submissions under 20.11.46 NMAC for a period offive years. In addition, the

7 WEB source shan keep a copy of all Account Certificates ofRepresentation for the duration ofthis program. Unless

8 otherwise requested by the WEB source and approved by the Department, the copies shall be kept on site at the

9 source.

10 (2) The WEB source shall keep records of all operating hours, quality assurance activities, fuel

II sampling measurements, hourly averages for SO" stack flow, fuel flow, or other continuous measurements, as

12 applicable, and any other applicable data elements specified in 20.11.46.16 NMAC, 20.11.46.21 NMAC or in

13 20.11.46.22 NMAC. The WEB source shall maintain the applicable records specified in 40 CFR Part 75 for any SO,

14 emitting unit that uses a 40 CFR Part 75 monitoring method to meet the requirements of 20.11.46.16 NMAC.

15 O. Reporting:

16 (1) Quarterly reports. For each SO, emitting unit, the account representative shan submit a quarterly

17 report within thirty days after the end of each calendar quarter. The report shall be in a format specified by the

18 department to include hourly and quality assurance activity information and shall be submitted in a manner

19 compatible with the emissions tracking database designed for the WEB trading program. Ifthe WEB source

20 submits a quarterly report under 40 CFR Part 75 to the EPA Administrator, no additional report under Paragraph (I)

21 of Subsection a of 20.11.46.16 NMAC shall be required, provided, however, that the department may require that a

22 copy ofthat report (or a separate statement ofquarterly and cumulative annual SO, mass emissions) be submitted

23 separately to the department.

24 (2) Annual report: Based on the quarterly reports, each WEB source shall submit an annual statement

25 oftotal annual So, emissions for all SO, emitting units at the source. The annual report shan identify the total

26 emissions for all units monitored in accordance with Subsection A of20.1 1.46.16 NMAC and the total emissions for

27 all units with emissions estimated in accordance with Subsection B of 20.11.46.16 NMAC. The annual report shall

28 be submitled within 60 days after the end of a control period.

29 (3) Ifthe department so directs, any monitoring plan, report, certification, recertification, or

30 emissions data required to be submitted under 20.11.46.16 NMAC shall be submitted to the tracking system

31 administrator.

32 (4) The department may review and reject any report submitled under this Subsection a of

33 20.11.46.16 NMAC that contains errors or fails to satisfy the requirements of 20.1 1.46.16 NMAC, and the account

34 representative shall resubmit the report to correct any deficiencies.

35 (5) A WEB SOurce may petition for an alternative to any requirement specified in Paragraph (2) of

36 Subsection A of20.11.46.16 NMAC. The petition shall require approval ofthe department and the EPA

37 Administrator. Any petition submitted under Paragraph 5 of Subsection a of 20.11.46.16 NMAC shall include

38 sufficient information for the evaluation ofthe petition, including, at a minimum, the following information:

39 (a) identification ofthe WEB source and applicable SO, emitting unit(s);

40 (b) a detailed explanation ofwhy the proposed alternative is being suggested in lieu ofthe

41 requirement;

42 (c) a description and diagram of any equipment and procedures used in the proposed

43 alternative, if applicable;

44 (d) a demonstration that the proposed alternative is consistent with the purposes ofthe

45 requirement for which the alternative is proposed and is consistent with the purposes of 20.11.46 NMAC and that

46 any adverse effect of approving such alternative will be de minimis; and

47 (e) any other relevant information that the department may require.

48 (6) For any monitoring plans, reports, or other information submitted under 20.11.46.16 NMAC, the

49 WEB source shall ensure that, where applicable, identifying information is consistent with the identifying

50 information provided in the most recent certificate ofrepresentation for the WEB source submitted under

51 20.11.46.12 NMAC.

52 [12/31/03]

53

54 20.11.46.17 ALLOWANCE TRANSFERS

55 A. Procedure: To transfer allowances, the account representative shall submit the following

56 information to the tracking system administrator:

·.

20.11.46 NMAC Page 18 Public Review Draft - October 5, 2003
(1) the transfer account number(s) identifying the transferor account;

(2) the transfer account number(s) identifying the transferee account;

(3) the serial number of each allowance to be transferred; and

(4) the transferor's account representative's name and signature and date ofsubmission.

B. Deadline: The allowance transfer deadline is midnight Pacific Standard Time March I of each

year (or if this date is not a business day, midnight ofthe fIrst business day thereafter) following the end of the

control period. By this time, the transfer ofthe allowances into the WEB source's compliance account must be

correctly submitted to the tracking system administrator in order to demonstrate compliance under Subsection A of

20.11.46.19 NMAC for that control period.

C. Retirement of allowances: To transfer allowances for the purpose ofretirement, the account

representative shall submit the following information to the tracking system administrator:

(1) the transfer account number(s) identifying the transferor account;

(2) the serial number of each allowance to be retired; and

(3) the transferor's account representative's name and signature and date ofsubmission accompanied

by a signed statement acknowledging that each retired allowance as no longer available for future transfers from or

to any account.

[12/31/03]

20.11.46.18 USE OF ALLOWANCES FROM A PREVIOUS YEAR

A. Any allowance that is held in a compliance account or general account shall remain in such an

account unless and until the allowance is deducted in conjunction with the compliance process, or transferred to

another account.

B. In order to demonstrate compliance under Subsection A of20.11.46.19 NMAC for a control

period, WEB sources shall only use allowances allocated for that current control period or any previous year.

Because all allowances held in a special reserve compliance account for a WEB source that monitors certain units in

accordance with Subsection B of 20.11.46.16 NMAC will be deducted for compliance for each control period, no

banking ofsuch allowances for use in a subsequent year is permitted by 20.1 1.46 NMAC.

C. Ifflow control procedures for the current control period have been triggered as outlined in Section

F(9)(b) ofChapter VI ofthe So, milestones and backstop trading program implementation plan element, then the

use of allowances that were allocated for any previous year shall be limited as follows:

(1) The number of allowances that are held in each compliance account and general account as ofthe

allowance transfer deadline for the immediately previous year and that were allocated for any previous year shall be

determined.

(2) The number determined in Paragraph (I) of Subsection C of20.11.46.18 NMAC shall be

multiplied by the flow control ratio established in accordance with Section F(9)(b) ofthe SO, milestonea and

backstop trading program implementation plan element to determine the number of allowancea that were allocated

for a previous year that can be used without restriction for the current control period.

(3) Allowances that were allocated for a previous year in excess ofthe number determined in

Paragraph (2) ofSubsection C of20.11.46.18 NMAC may also be used for the current control period. Ifsuch

allowances are used to make a deduction, two allowances shall be deducted for each deduction ofone allowance

required under 20.11.46.19 NMAC.

D. Special provisions for the year 2018. After compliance with the 2017 allowance limitation has

been determined in accordance with Subsection A of20.11.46.19 NMAC, allowancea allocated for any year prior to

2018 shall not be used for determining compliance with the 2018 allowance limitation or any future allowance

limitation.

[12/31/03]

I

2

3

4

5

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

20.11.46.19

A.

(1)

COMPLIANCE

Compliance with allowance limitations:

In accordance with Paragraph (2) of Subsection A of 20.11.46.19 NMAC and 20.11.46.18

NMAC, the WEB source shall hold allowances, as of the allowance transfer deadline in the WEB

source's compliance account (together with any current control year allowances held in the WEB

source special reserve compliance account under Subsection B of 20.11.46.16 NMAC) in an

amount not leas than the total SO, emissions for the control period from the WEB source, as

determined under the monitoring and reporting requirements of 20.11.46.16 NMAC.

PROP. 1Q Public Review Draft - October 5, 2003
I (a) For each source that is a WEB source on or before the program trigger date, the first control

2 period is the calendar year !hst is six years following the calendar year for which SO, emissions exceeded the

3 milestone in accordance with procedures in Section A ofthe SO, milestones and backstop trading program

4 implementation plan element.

5 (b) For any existing source!hst becomes a WEB source after the program trigger date, the first

6 control period is the calendar year that is four years following the inventory year in which the source exceeded the

7 So, emissions threshold.

8 (c) For any new WEB source after the program trigger date, the fIrst control period is the fIrst

9 full calendar year that the source is in operation.

10 (d) Ifthe WEB trading program is triggered in accordance with the 2013 review procedures in

II Section 0(7) ofChapter VI ofthe SO, milestones and backstop trading program implementation plan element, the

12 fIrst control period for each source that is a WEB source on or before the program trigger date is the year 2018.

13 (2) Allowance transfer deadline: An allowance may only be deducted from the WEB source's

14 compliance account if:

15 (a) the allowance was allocated for the current control period or meets the requirements in

16 20.11.46.18 NMAC for use ofallowances from a previous control period, and

17 (b) the allowance was held in the WEB source's compliance account as ofthe allowance

18 transfer deadline for the current control period, or was transferred into the compliance account by an allowance

19 transfer correctly submitted for recording by the allowance transfer deadline for the current control period.

20 (3) Compliance with allowance limitations sball be determined as follows:

21 (a) The total annual SO, emissions for all SO, emitting units at the source that are monitored

22 under Subsection B of20.11.46.16 NMAC, as reported by the source in Paragraph (2) and Paragraph (4) of

23 Subsection a of 20.11.46.16 NMAC, and recorded in the emissions tracking database, sbaII be compared to the

24 allowances held in the source's special reserve compliance account as ofthe allowance transfer deadline for the

25 current control period, adjusted in accordance with 20.1 1.46.1 8 NMAC. Ifthe emissions are equal to or less than

26 the alIowances in such account, all such allowances sball be retired to satisfy the obligation to hold allowances for

27 such emissions. Ifthe total emissions from such units exceeds the allowances in such special reserve account, the

28 WEB source shall account for such excess emissions in Subparagraph (b) of Paragraph (3) of Subsection A of

29 20.11.46.19 NMAC.

30 (b) The total annual SO, emissions for all SO, emitting units at the source that are monitored

31 under Subsection A of20.1 1.46.16 NMAC, as reported by the source as required by Paragraph (2) and Paragraph (4)

32 ofSubsection a of 20.1 1.46.16 NMAC, and recorded in the emissions tracking database, together with any excess

33 emissions as calculated in the Subparagraph (a) ofParagraph (3) of Subsection A of 20.1 1.46.19, shall be compared

34 to the allowances held in the source's compliance account as ofthe allowance transfer deadline for the current

35 control period, adjusted in accordance with 20.11.46.18 NMAC.

36 (4) Other than allowances in a special reserve compliance account for units monitored under

37 Subsection B of20.11.46.16 NMAC, to the extent consistent with 20.11.46.18 NMAC, allowances shall be deducted

38 for a WEB source for compliance with the allowance limitation as directed by the WEB source's account

39 representative. Deduction of any other allowances as necessary for compliance with the allowance limitation shall

40 be on a fIrst-in, fIrst-out accounting basis in the order ofthe date and time oftheir recording in the WEB source's

41 compliance account, beginning with the allowances allocated to the WEB source and continuing with the allowances

42 transferred to the WEB source's compliance account from another compliance account or general account. The

43 allowances held in a special reserve compliance account pursuant to Subsection B of 20.11.46.16 NMAC shall be

44 deducted as specifIed in Subparagraph (a) ofParagraph (3) of Subsection A of20.1 1.46.19 NMAC.

45 B. Certification of compliance:

46 (J) For each control period in which a WEB source is subject to the allowance limitation, the account

47 representative ofthe source shall submit to the department a compliance certification report for the source.

48 (2) The compliance certification report shall be submitted no later than the allowance transfer

49 deadline of each control period, and shall contain the following:

50 (a) identifIcation of each WEB source;

51 (b) at the account representative's option, the serial numbers of the allowances that are to be

52 deducted from a source's compliance account for compliance with the allowance limitation; and

53 (c) the compliance certifIcation report according to Paragraph (3) of Subsection B of

54 20.11.46.19.

55 (3) In the compliance certifIcation report, the account representative shall certify, based on reasonable

56 inquiry ofthose persons with primary responsibility for operating the WEB source in compliance with the WEB

•

20.1 1.46 NMAC Page 20 Public Review Draft - October 5, 2003
I trading program, whether the WEB source for which the compliance eenification is submitted was operated during

2 the control period covered by the report in compliance with the requirements ofthe WEB trading program

3 applicable to the source including:

4 (a) whether the WEB source operated in compliance with the SO, allowance limitation;

5 (b) whether SO, emissions data has been submitted to the department in accordance with

6 Subsection A of 20.11.46.16 NMAC and other applicable guidance, for review, revision as necessary, and

7 fmalization for forwarding to the SO, allowance tracking system for recording;

8 (e) whether the monitoring plan that governs the WEB source has been maintained to reflect

9 the actual operation and monitoring ofthe source, and contains all information necessary to attribute SO, emissions

iO to the source, in sccordance with Subsection A of20.11.46.16 NMAC;

II (d) whether all the SO, emissions from the WEB source, if applicable, were monitored or

12 accounted for either through the applicable monitoring or through application of the appropriate missing data

13 procedures;

14 (e) if applicable, whether any SO, emitting unit for which the WEB source is not required to

15 monitor in accordance with Paragraph (3) of Subsection A of20.11.46.16 NMAC remained permanently retired and

16 had no emissions for the entire applicable period; and

17 (I) whether there were any changes in the method ofoperating or monitoring the WEB source

18 that required monitor recertification. Ifthere were any such changes, the report shall specify the nature, reason, and

19 date ofthe change, the method to determine compliance status subsequent to the change, and specifically, the

20 method to determine SO, emissions.

21 C. Penalties for any WEB souree exeeeding its allowanee limitations:

22 (1) Allowance deduction penalties: ,

23 (a) if emissions from a WEB source exceed the allowance limitation for a control period, as

24 determined in accordance with Subsection A of 20.11.46.19 NMAC, the source's allowance held in its compliance

25 account will be reduced by an amount equal to two times the source's tons of excess emissions. Ifthe compliance

26 account does not have sufficient allowances allocated for that control period, the required number of allowances

27 shall be deducted from the WEB source's compliance account regardless ofthe control period for which they were

28 allocated, once allowances are recorded in the account.

29 (b) any allowance deduction required under 20.11.46.19 NMAC shall not reduce or otherwise

30 affect the liability ofthe owners and operators ofthe WEB source for any fme, penalty or assessment or their

31 obligation to comply with any other remedy, for the same violation, as ordered under the Clean Air Act,

32 implementing regulstions or applicable state or tribal law. Accordingly, a violation can be assessed each day ofthe

33 control period for each ton of SO, emissions in excess ofits allowance limitation ifthe department so chooses.

34 (2) Financial penalties: a fmancial penalty of $5,000 per ton of SO, emissions in excess ofthe WEB

35 source's allowance limitation shall be levied. Each ton represents a separate violation.

36 D. Liabillty:

37 (1) WEB Source liability for non-compliance: Separate from and regardless of any automatic

38 penalties assessed for allowance deduction penalty and fmancial penalty, a WEB source that violates any

39 requirement of20.11.46 NMAC is subject to administrative, civil and criminal penalties under the Air Quality

40 Control Act and the Clean Air Act. Each day ofthe control period is a separate violation, and each ton of SO,

41 emissions in excess ofa source's allowance limitation is a separate violation.

42 (2) General liability:

43 (a) Any provision ofthe WEB trading program that applies to a source or an account

44 representative shall apply also to the owners and operators ofsuch source.

45 (b) Any person who violates any requirement or prohibition ofthe WEB trading program shall

46 be subject to enforcement pursuant to applicable state, tnbal or federal law.

47 (e) Any person who knowingly makes a false material statement in any record, submission, or

48 report under this WEB trading program shall be subject to criminal enforcement pursuant to the applicable state,

49 tribal or federal law.

50 [12/31/03]

51

52 20.11.46.20 SPECIAL PENALTY PROVISIONS FOR YEAR 2018 MILESTONE

53 A. Ifthe WEB trading program is triggered as outlined in Section D ofChapter VI ofthe SO,

54 milestones and backstop trading program implementation plan element, and the first control period will not occur

55 until after the year 2018, the following provisions shall apply for the 2018 emissions year.

D ......_ "),
(2) Fuel gas combustion devices include boilers, process heaters, and flares used to burn fuel gas

generated at a petroleum refmery.

(3) Fuel gas means any gas which is generated and combusted at a petroleum refmery. Fuel gas does

not include:

(a) natural gas, unless combined with other gases generated at a petroleum refinery;

(b) .gases generated by a catalytic cracking unit catalyst regenerator;

(0) gases generated by fluid coking burners;

(d) gases combusted to produce sulfur or sulfuric acid; or

(e) process upset gases generated due to startup, shutdown, or malfunctions.

(1) All WEB sources shall register, and open a compliance account within 180 days after the program

trigger date, in accordance with Subsection A of 20.1 1.46.13 NMAC and 20.11.46.15 NMAC.

(2) The tracking system administrator shall record the allowances for the 2018 control period for each

WEB source in the source's compliance account once the depanment allocates the 2018 allowances under Section

F(I) and G(I) ofChapter VI ofthe SO, milestones and backstop trading program implementation plan element.

(3) The allowance transfer deadline is midnight Pacific Standard Time on May 30, 2021. WEB

sources may transfer allowances as provided in Subsection A of 20.11.46.17 NMAC until the allowance transfer

deadline.

(4) A WEB source shall hold allowances allocated for 2018 including those transferred into the

compliance account by an allowance transfer correctly submitted by the allowance transfer deadline, in an amount

not less than the WEB source's total SO, emiasions for 2018. Emissions shall be determined using the pre-trigger

monitoring provisions in Section B ofthe So, milestones and backstop trading program implementation plan

element, and 20.11.46.9 NMAC.

(5) An allowance deduction penalty and fmancial penalty shall be assessed and levied in accordance

with Subsection D of 20.11.46.18 NMAC, Paragraph (4) of Subsection A of 20.11.46.19 NMAC and Subsection C

of 20.11.46.19 NMAC except that SO, emissions shall be determined under Paragraph (4) of Subsection A of

20.11.46.20 NMAC.

B. The provisions in 20.11.46.20 NMAC shall continue to apply for each year after the 2018

emission year until:

(1) the first control period under the WEB trading program; or

(2) the depanment determines, in accordance with Section D(6)(j) ofChapter VI ofthe SO,

milestones and backstop trading program implementation plan element, that the 2018 S02 milestone has been met.

C. if provisions of Subsection A or 20.11.46.20 NMAC was implemented, the following shall apply

to each emiasions year after the 2018 emissions year:

(1) the tracking system administrator will record the allowances for the control period for the specific

year for each WEB source in the source's compliance account once the depanment allocates the allowances under

Section F(I) ofChapter VI ofthe S02 milestones and backstop trading program implementation plan element.

(2) the allowance transfer deadline is midnight Pacific Standard Time on March I of each year (or if

this date is not a business day, midnight ofthe first business day thereafter) following the end ofthe specific

emissions year. WEB sources may transfer allowances as provided in Subsection A of 20.11.46.17 NMAC until the

allowance transfer deadline.

(3) A WEB source must hold allowances allocated for that specific emissions year, or any year after

2018, including those transferred into the compliance account by an allowance transfer correctly submitted by the

allowance transfer deadline, in an amount not leas than the WEB source's total SO, emissions for the specific

emissions year. Emissions are determined using the pre-trigger monitoring provisions in Section D ofthe SO,

milestones and backstop trading program implementation plan element, and 20.11.46.9 NMAC.

(4) An allowance deduction penalty and fmancial penalty shall be aasessed and levied in accordance with

Subsection D of20.11.46.18 NMAC, Paragraph (4) of Subsection A of20.11.46.l9 NMAC, and Subsection C of

20.11.46.19 NMAC, except that SO, emissions shall be determined under Paragraph (3) of Subsection C of

20.11.46.20 NMAC.

[12/31/03]

I

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

20.11.46.21

A-

(1)

refmeries.

SO, MONITORING OF FUEL GAS COMBUSTION DEVICES

Applicability

The provisions oflhis protocol are applicable to fuel gas combustion devices at petroleum

·.

20.11.46 NMAC Page 22 Public Review Draft - October 5,2003
tests;

(UI) record negative values of zero drift, for initial certification and daily calibmtion error

the range;

(iv) calibmtion drift shall be 5.0% ofthe span; and

(v) methods 15A, 16, or approved alternatives for total sulfur, are the reference methods

for the relative accorncy test. The relative accorncy test shall include a bias test in accordance with Paragraph (3) of

Subsection D of 20.11.46.21 NMAC.

(c) All continuous fuel flow meters shall comply with the provisions of Section 2.1.5 of

Appendix D to 40 CFR Part 75.

(d) The hourly mass SO, emissions mte for all the fuel combustion devices monitored by this

approach shall be calculated using the following equation:

Ii, =(Cs)(Qr)(K)

Ii, = Total So, emissions in Iblhr from applicable fuel gas combustion devices

Cs = Sulfur content ofthe fuel gas as H,S (ppmv)

Qr=Fuel gas flow mte to the applicable fuel gas combustion devices (scfi'hr)

K = 1.660 X 10" (lblscf)/ppmv

where:

B. Monitoring Requirements

(1) Except as provided in Paragraph (2) and Paragmph (3) ofSuhsection B of20.11.46.21 NMAC,

fuel gas comhustion devices shaH use a continuous fuel gas monitoring system (CFGMS) to detennine the total

sulfur content (reported as H,S) ofthe fuel gas mixture prior to combustion, and continuous fuel flow meters to

determine the 8D2ount offuel gas burned.

(a) Fuel gas combustion devices having a common source offuel gas may be monitored for

sulfur content at one location, ifmonitoring at that location is representative ofthe sulfur content ofthe fuel gas

being burned in any fuel gas combustion device.

(b) The CFGMS shall meet the performance requirements in performance specification 2 in

appendix B to 40 CPR Part 60, and the following:

(i) continuously monitor and record the concentration by volume oftotal sulfur

compounds in the gaseous fuel reported as ppmv H,S;

(6) have the span value set so that the majority ofreadings fall between ten and 95% of

(2) In place of a CFGMS in Paragraph (I) of Subsection B of 20.11.46.21 NMAC, fuel gas

combustion devices having a common source offuel gas may be monitored with an SO, CEMS and flow CEMS and

(if necessary) a moisture monitoring system at only one location, ifthe CEMS monitoring at that location is

representative ofthe SO, emission mte (lb So,/scffuel gas burned) of all applicable fuel gas combustion devices.

Continuous fuel flow meters shall be used in accordance with Paragmph (2) of Subsection B of20.11.46.21 NMAC,

and the fuel gas combustion device monitored by a CEMS shall have separate fuel metering.

(a) Each CEMS for SO, and flow, and (if applicable) moisture, shall comply with the operating

requirements, performance specifications, and quality assurance requirementa of40 CPR Part 75.

(b) All continuous fuel flow meters shall comply with the provisions of Section 2.1.5 of

appendix D to 40 CPR Part 75.

(c) The So, hourly mass emissions rate for all the fuel gas combustion devices monitored by

this approach shall be determined by the mtio ofthe 8D2ount offuel gas burned by the CEMS-monitored fuel gas

combustion device to the total fuel gas burned by all applicable fuel gas combustion devices using the following

equation:

Ii, =(E",)(QJ/(Qm)

where: Ii, = Total SO, emissions in Iblhr from applicable fuel gas combustion devices.

E", =So, emissions in Iblhr from the CEMS-monitored fuel gas combustion device, calculated using

Equation F·I or (if applicable) F-2 in appendix F to 40 CFR Part 75

Q. =Fuel gas flow mte (scfi'hr) from applicable fuel gas combuation devices.

Qm = Fuel gas flow rate (scfi'hr) to the CEMS-monitored fuel gas combustion device.

(3) In place of a CFGMS in Paragmph (I) of Subsection B of 20.11.46.21 NMAC, fuel gas

combustion devices having a common source offuel gas may be monitored with an So, - diluent CEMS at only one

location, ifthe CEMS monitoring at that location is representative ofthe SO, emission mte (Ib So,/mmBbl) of all

I

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

?n 114~NMAC Page 23 Public Review Dmft - October 5, 2003
I applicable fuel gas combustion devices. Ifthis option is selected, the owner or OPerator shall conduct fuel gas

2 sampling and analysis for gross calorific value (GCV), and shall use continuous fuel flow metering in accordance

3 with Paragraph (I) of Subsection B of 20.11.46.21 NMAC, with separate fuel metering for the CEMS-monitored

4 fuel gas combustion device.

5 (a) Each SO,. diluent CEMS shall comply with the applicable provisions for So, monitors and

6 diluent monitors in 40 CFR Part 75, and shall USe the procedures in Section 3 of appendix F to 40 CFR Part 75 for

7 determining So, emission rate (lb/mmBtu) by substituting the term SO, for NO, in that section, and using a K factor

8 of 1.660 x 10 -7 (Ib/scf) ppmv instead ofthe NO, K factor.

9 (b) All continuous fuel flow meters and fuel gas sampling and analysis for GCV to determine

10 the heat input ratio shall comply with the applicable provisions of Section 2.1.5 and 2.3.4 of appendix D to 40 CFR

II Part 75.

12 (c) The So, hourly mass emissions rate for alI the fuel gas combustion devices monitored by

13 this approach shall be determined by the ratio ofthe fuel gas heat input to the CEMS-monitored fuel gas combustion

14 device to the total fuel gas heat input to alI applicable fuel gas combustion devices using the following equation:

15 E, = (E")(Q,)/(GCV) 1106

16 where: E. Total So, emissions in Ibs/hr from applicable fuel gas combustion devices.

17 Em =SO, emissions in IblmmBtu from the CEMS - monitored fuel gas combustion device.

18 Q, =Fuel gas flow rate (scf/hr) to the applicable fuel gas combustion devices.

19 GCV =Fuel Gross Calorific Value (Btu/scf)

20 106 = Conversion from Btu to million Btu

21 (d) The owner or operator shall calculate total So, mass emissions for each calendar quarter

22 and each calendar year based on the emissions in Ib/hr and Equations F-3 and F-4 in appendix F to 40 CFR Part 75.

23 C. Certification and recertification reqoirements: All monitoring systems are subject to initial

24 certification and recertification testing as follows:

25 (1) the owner or operator shall comply with the initial testing and calibration requirements in

26 performance specification 2 in appendix B of 40 CFR Part 60 and Subparagraph (b) ofParagraph (I) of Subsection

27 B of20.11.46.21 NMAC for each CFGMS.

28 (2) each CEMS for SO, and flow or each SO,-diluent CEMS shall comply with the testing and

29 calibration requirements specified in 40 CFR Part 75, section 75.20 and Appendices A and B, except that each SO,-

30 diluent CEMS shall meet the relative accuracy requirements for a NO,-diluent CEMS (lb/mmBtu).

31 (3) a continuous fuel flow meter shall comply with certification requirements in section 2.1.5 of

32 appendix D of 40 CFR Part 75.

33 D. Qoallty assurance/quality control requirements

34 (1) A quality assurance and quality control (QAlQc) plan shall be developed and implemented for

35 each CEMS for SO, and flow or the So,-diluent CEMS in compliance with Sections I, 1.1, and 1.2 of appendix B

36 of 40 CFR Part 75.

37 (2) A quality assurance and quaHty control plan shall be developed and implemented for each

38 continuous fuel flow meter and fuel sampling and analysis in compliance with Sections I, 1.1, and 1.3 appendix B of

39 40 CFR Part 75. The owner or operator shalI meet the requirements in section 2.1.6 of appendix D to 40 CFR Part

40 75, and may use the procedures set forth in section 2.1.7 ofthat appendix.

41 (3) A quality assurance and quality control plan shalI be developed and implemented for each

42 CFGMS in compliance with Sections I and 1.1 of appendix B to 40 CFR Part 75, and the following:

43 (a) perform a daily calibration error test of each CFGMS at two gas concentrations, one low

44 level and one high level. Calculate the calibration error as described in appendix A to 40 CFR Part 75. An out of

45 control period occurs whenever the error is greater than 5.0"10 ofthe span value.

46 (b) in addition to the daily calibration error test, an additional calibration error test shall be

47 performed whenever a daily calibration error test is failed, whenever a monitoring system is returned to service

48 following repairs or corrective actions that may affect the monitor measurements, and after making manual

49 calibration adjusbnents.

50 (c) perform a linearity test once every operating quarter. Calculate the linearity as described in

51 appendix A to 40 CFR Part 75. An out of control period occurs whenever the linearity error is greater than 5.0

52 percent of a reference value, and the absolute value ofthe difference between average monitor response values and a

53 reference value is greater than 5.0 ppm.

54 (d) perform a relative accuracy test audit once every four operating quarters. Calculate the

55 relative accuracy as described in appendix A to 40 CFR Part 75. An out of control period occurs whenever the

56 relative accuracy is greater than 20.0% ofthe mean value ofthe reference method measurements.

20.11.46 NMAC Page 24 Public Review Draft - October 5, 2003
I (e) using the results ofthe relative accuracy test audit, conduct a bias test in accordance with

2 appendix A to 40 CFR Part 75, and calculate and apply a bias adjustment factor ifrequired.

3 E. Missing data procedures

4 (I) For any period in which valid data are not being recorded by an SO, CEMS or flow CEMS

5 specified in 20.1 \.46.21 NMAC, missing or invalid data shall be replaced with substitute data in accordance with the

6 requirements in Subpart D of40 CFR Part 75.

7 (2) For any period in which valid data are not being recorded by an SO,-diluent CEMS specified in

8 20.1 \.46.21 NMAC, missing or invalid data shall be replaced with substitute data on a rate basis (Ib/mrnBtu) in

9 accordance with the requirements for SO, monitors in Subpart D of40 CFR Part 75.

10 (3) For any period in which valid data are not being recorded by a continuous fuel flow meter or for

II fuel gas GCV sampling and analysis specified in 20.11.46.21 NMAC, missing or invalid data sha1\ be replaced with

12 substitute data in accordance with missing data requirements in Section 2.4 of appendix D to 40 CPR Part 75.

13 (4) For any period in which valid data are not being recorded by the CFGMS specified in 20.1 \.46.21

14 NMAC, hourly missing or invalid data shall be replaced with substitute data in accordance with the missing data

15 requirements for units performing hourly gaseous fuel sulfur sampling in Section 2.4 of appendix D to 40 CFR Part

16 75.

17 F. Monitoring plan and reporting requirements: In addition to the general monitoring plan and

18 reporting requirements of20.11.46.16 NMAC, the owner or operator shall meet the following additional

19 requirements:

20 (I) The monitoring plan shall identify each group of units that is munitored by a single monitoring

21 system under 20.1 \.46.21 NMAC, and the plan shall designate an identifier fur the group of units for emissions

22 reporting purposes. For purpose ofsubmitting emissions reports, no apportionment of emissions to the individual

23 units within the group is required.

24 (2) Ifthe provisions ofParagraph (2) or Paragraph (3) of Subsection B of 20.1 \.46.21 NMAC are

25 used, provide documentation and an explanation to demonstrate that the SO, emission rate from the monitored unit

26 is representative ofthe rate from non-monitored units.

27 [12/31103]

28

29 20.]].46.22 PREDICTIVE FLOW MONITORING SYSTEMS FOR KILNS WITH POSITIVE

30 PRESSURE FABRIC FILTER:

31 A. Applicability: The provisions ofthis protocol are applicable to cement kilns or lime kilns that

32 (I) are controlled by a positive pressure fabric filter;

33 (2) combust only a single fuel, no fuel blends; and

34 (3) have operating conditions upstream ofthe fabric filter that the WEB source documents would

35 reasonably prevent reliable flow monitor measurements. This protocol does not modify the SO, monitoring

36 requirements io 20.1 1.46.16 NMAC.

37 B. Monitoring Requirements

38 (I) A cement or lime kiln with a positive pressure fabric filter shall use a predictive flow monitoring

39 system (PFMS) to determioe the hourly kiln exhaust gas flow.

40 (2) A PFMS is the total equipment necessary for the determioation of exhaust gas flow usiog process

41 or control device operating parameter measurements and a conversion equation, a graph, or computer program to

42 produce results io cubic feet per hour.

43 (3) The PFMS shall meet the followiog performance specifications:

44 (a) Sensors readiogs and conversion ofsensor data to flow io cubic feet per hour must be

45 automated.

46 (h) The PFMS must allow for the automatic or manual determioation offailed monitors. At a

47 mioimum a daily determioation must be performed.

48 (c) The PFMS shall have provisions to check the calibration error of each parameter that is

49 iodividually measured. The owner or operator shall propose appropriate performance specifications io the initial

50 monitoring plan for all parameters used io the PFMS comparable to the degree of accuracy required for other

51 monitoring systems used to comply with 20.11.46 NMAC. The parameters shall be tested at two levels, low: 0 to

52 20% offull scale, and high: 50 to 100% offull scale. The reference value need not be certified.

53 (d) The relative accuracy ofthe PFMS must be::: 10.0% ofthe reference method average value,

54 and include a bias test in accordance with Paragraph (3) of Subsection D of20.1 \.46.22 NMAC.

55 C. Certification requirements: The PFMS is subject to initial certification testing. The source

56 owner or operator shall:

__ •• .... ;.T'lI. .... ,.., PRlle 25 Public Review Draft - October 5, 2003
I (1) Demonstrate the ability ofthe PFMS to identify automatically or manually a failed monitor;

2 (2) Provide evidence of calIbration testing of all monitoring equipment. Any tests conducted within

3 the previous 12 months ofoperation that are consistent with the QAlQC plan for the PFMS are acceptable for initial

4 certification purposes; and

5 (3) Perform an relative accuracy test audit and accompanying bias test once every four operating

6 quarters. Calculate the relative accuracy (and bias adjustment factor) as described in appendix A to 40 CFR Part 75.

7 An out of control period occurs whenever the flow relative accuracy is greater than 10.0% ofthe mean value ofthe

8 reference method.

9 D. Quality assurance and quality control requirements: A quality assurance and quality control

10 plan shall be developed and implemented for each PFMS in compliance with Sections I and 1.1 of appendix B of 40

II CFR Part 75, and the following:

12 (l) perform a daily monitor failure check;

13 (2) perform calibration tests of all monitors for each parameter included in the PFMS. At a minimum,

14 calibrations shall be conducted prior to each relative accuracy test audit; and

15 (3) perform a relative accuracy test audit and accompanying bias test once every four operating

16 quarters. Calculate the relative accuracy (and bias adjustment factor) as described in 20.11.46.21 NMAC and 40

17 CFR Part 75. An out of control period occurs whenever the flow relative accuracy is greater than 10.0% ofthe mean

18 value ofthe reference method.

19 E. MIssing data: For any period in which valid data are not being recorded by the PFMS specified

20 in 20.11.46.22 NMAC, hourly missing or invalid data shall be replaced with substitute data in accordance with the

21 flow monitor missing data requirements for non-load based units in Subpart D of 40 CFR Part 75.

22 F. Monitoring plan requirements: In addition to the general monitoring plan requirements of

23 20.11.46.16 NMAC, the owner or operator shall meet the following additional requirements:

24 (l) The monitoring plan shall document the reasons why stack flow measurements upstream ofthe

25 fabric filter are unlikely to provide reliable flow measurements over time.

26 (2) The initial monitoring plan shall explain the relationship ofthe proposed parameters and stack

27 flow, and discuss other parameters considered and the reasons for not using those parameters in the PFMS. The

28 Department may require that the subsequent monitoring plan include additional explanation and documentation for

29 the reasonableness ofthe proposed PFMS.

30 [12/31/03]

31

32

33 20.11.46.23 SAVINGS CLAUSE: Any amendment to Sulfur Dioxide Emissions Inventory Requirements;

34 Western Backstop Sulfur Dioxide Trading Program, 20.11.46 NMAC, which is filed with the State Records Center

35 and Archives shall not affect actions pending for violation of a statute, ordinance, Part, or permit. Prosecution for a

36 violation of a prior statute, ordinance, Part or permit shall be governed and prosecuted under the statute, ordinance,

37 Part Or permit wording in effect at the time the violation was committed.

38 [12/31/03]

39

40 20.11.20.24 SEVERABILITY: If any section, subsection, sentence, phrase, clause or wording oflhis Part or

41 the federal standards incorporated herein is for any reason held to be unconstitutional or otherwise invalid by any

42 court or the EPA, the decision shall not affect the validity ofremaining portions ofthis Part.

43 [12131/03]

44

.,

J

20.11.46 NMAC Page 26 Public Review Draft - October 5, 2003
SlP EXHIBIT

I d...

,..

•••0 .

, .f'OllCE OF, ,",., .' • ,,_ i . _-~,_: _. _'

- J;15-

"')0'
."Prop06aI, to adoi't a,new l8gula·

1iDn, 20.11.46 NhlAC, Sulfur [)i. :-oxide Emissions Inventory Requiremtlnts; Western Bacllstop

SURur DmideTrad~ Pl'C9am.

• Proposal 10 iACClfPOrll8I newly. 2O.11M> NMAC i'Ito IhII

'-New-Mexk:o Stale I"pemslna- lIct1 Plan (SIP) lor air quality.

The.original docurnIIntation lor the

OCtober8 was a't8isble to the·public beginning on 5BPI&lItler

8, 2003, IoIlowing published notice

oI"'l1V8l1abiUly"Since thai date, some

reviSions h8Y9 beeII !1lBde to the

Open Bumlnlfl'9(lulation and to !he

pI'OIXl69d Regional Haze SIP ele·

ment, including inoorporation 01 reI·

erences to the 20.11.46 NMAC,

Western Badl,SIOp SuUur DioU:Ie TnKling Program regulalion. The

revised SediOI'I 309 Regional l-lllze

eIem8nI iii roM .Bvaillible. In Blklilion, the 20. 11.-46 NMAC, Western

BlICkelop Sullur Dioxide Trading

PrtlIJ8I'Il regula/i:Jn end the revissd

Open Bumi'Ig regulation are I'lQ'l'

1'o'IIi1Bble III the pI.tlIic tor I'll'VBw

and comment. (see lodeV's relalild

Iegalld.)

ALBUQUEROUE/BERNALLLO COIlInY AIR QUAIJTY

CONTROl BOARD

NOt1CE Of AVAILAElIIJrY OF . REVISED AND.NEW

DOCUMENTS RE1.IITED TO THE

PROPOSED SECTION 309

REOKlNAL HAZE STATE

-IMPLEMENTATION PLAN

ELElIENT

On Clattler 8, 2003 B13:OO PM and on 12, 2003, 815;15 PM.

\he A1buquerqL&'Bernalllo County

Air...Qual1ty CortJd Boald (8oIrd)

wIIl10Id public h8ari'Igs In !he CIty

CouncillCoLrlly Commission Chain· bers of tOe AIluqLlEll'QUelBemalillo

County GoverTllTl8l1l Center, 400

MaIquetIe Avenue NW, ~r·

~,.NM 87102. The loIIowi1g three

hearings wiU begin al 3:00 PM on

0ClJ3ber8 arid will be COI'llkud on Nl1'I8I1lber 12. 2003 815:15 PM: • PrqK1S81 10 I1tImit a 'Section 309' Aegioflal Hize elenwnl tor

indusion inro -ttle loin Mulco

Stale IrnplllrnenlallOn PIBn (SIP)

tor BIr ~. "Sel:tD 309' aI

1he Jed8raL RegiwBI IIaZe regu1ilIkIn is 1he pru'o'iBion 1heI per-

=..;e ~~ staI8B,

• Proposal 10 amend the Open BlImlng regulation, 20.11.21

NMAC (New Mexico Mnilislra·

1i¥8 Code), to i)COrpOr.ate re- quifemenll; aI Ihe ledlral RegiOnBI HBzs ClJ"IC8l1lo"

• ....... PrOpo5111

-\0 incorporate an

amen;led 20.11.21 NMAC into

Ihe SIP. s~rcedlllII ~latlon

3,a priOr version 01 tile Opeo

awning regulalioll.

Thli ItlIIoImg two hearings "'~I be-

~I 5:15 PM on 12, ( )

Hearings, and mailings 01 llle

Board ere open III !hII pttJIic IWl ell

inIeresIed persons 1119 8I1CtlIJ'8(Illd

III partieIpBIe. ht'j per&OI'I may tesIlly lithe Odober 8, 2003 llearilig

. sild ,II the November 12, "2003 Illanng regarding the RegiOllal

Haze SIP element IlIId !he r8llled

reguIdana. AI perBOnS who wi&tl1ri

tesIIv the SIJIIIed 01 the heart'JJ may do 80 at the tJeemg

IWl wi be given. reasonelll op- poItunltv to sltlnil I1lIlWBnI evidence, data, views, and

oralyorilwrililg,kl:irllrodLI:eex·

IlIlitlI and 10 examine wlnestes in IICCOItlBnte witIl!hll..k*1l""r Qul:'.

iIy coma Board 0r'Ii1llllUS, Set· 1ioI19-5-1-6 ROA 1994 and Bema·

IlIIo Gourtv 0rdn&ncI94-5; sec:ti:In 8. "

AAyone inlftIing to present tec:hni- ClII I8Ilinony is l\Sked to llIbnIl a wriuen notice 01 Intent 10: AI1r):

HeaIIwIl AeooRl, Mr. Dan Wanen

A1b1.qU8l'qU8 EI'I'Wonm8ntaI HllBIh

DepeI1ment, P_O. BOll 1293. AI»

querque, NM 87103, or In person il

Room 3023, 400 Marquil(e Awnue

NW, In advanceollhe hearilg. The

noIiee 01 InIIlnl shall IdentIfv It1e

rBmll, Bd08sS. and aIIIaIiOn ollhe

""'" In addIIon, wrtIlen cpnments 10 be

incorporated into lhe October8

pOOlic helIrilg reoord ahWCI be receMld ,alh aboY8 P.O. Sox, or

EnvIrorwnenIaI Heallh .oI!icll, babe 5,00 PM OIl 0Ct0bar

8, 2003, and wrtIlen comnents to be iIll::orporalld no lhB November

12 pWNc' heamg rtICD'd &hol*l,be

~~=P~~ olb, b8IonI 5:00 PM on Novem·

ber.,5, 2003. ,The CQIIllIR\S:shall

include the rBmll and adrhss aI

tile idViduaI Ill" organWition submiI1Ing lhB slllI8menL Wrltlen COIl\'"

menta may.al&o be svbnitted alec- lfoi'IlcaIy to dw8n'8nOcabq.gOv and shaI'i1dutIa IhB requinIli,narne and

adCbss~. InI8l'89t8d per- sons may obIain • oopy ol1ha pr0-

posed ~Ialiori al the. E:rM't»- tl8'llaI HeaIlh Depar!mIlnl 0IIice, Ill"

by"tonIIt1ilg Mr. Neal Butt eIac· In:iiicaIy el, I'tIlIItOCllbCl--gov or by

I*JOnlI (505) 7684660.

The". Q.IeIIy CCf1btJI Baerd is the

I8dMaIy deIllgal8d .. qI.8Illy auIhoriy tor AIlUquerque IIIl BernaCou'lly. Local dllIegIdiCIlllftl. iIzBS'!he BoarlI ,ID adnPsleI and

enlcml'!he CIeBn Ai" Ad IIIllhe

ttew Mexico» QuaIly CCf1btJI AcI,

anll to ftlqUire local air' poIIulion

9OUI'C8lIto willi elr qUBllly

........

NOTICE TO PERSONS WITH DlSABIUT1ES: II you h!MI a disability

and require 8pIlCial assls&anc8 to

parIlcipaI& il lhis rnaetng, pI8ase

contaa Mr. Neal Butt, Environmen· !atHeaI\tI Department, Room 3023,

AlBCGC, 768-2600 (Voice);

788-2617 (FAX); or 768·2482

(TTY); Ifsoonu possible priOr to the meeting dall, Public docu· rrents, i'GIdi'lg age'ldaa IIIl mir.-

utes, can be .provided ., \Illrious

Journal:

--~0ClJ3ber 5, 2003

SfP EXHIBIT J 3
SIP EXHIBIT

I'i--

New Mexico Register I Volume XIV, Number 19 I October 15, 2003

In addition, written comments to be incorporated into the pUblic record for the

October 8. 2003 hearings that will conclude

on November 12, 2003 should be received

at the above P.O. Box, or Environmental

Health Department office, before 5:00 pm

on October 30. 2003. However. the

Department strongly encourages written

comments to be delivered prior to the

October 8. 2003 hearing. Written comments to be incorporated into the public

record for the Part I, Genml proyisionS

hearing scheduled for October 27. 2003,

should be received at the above P.O. Box. or

Environmental Health Department office.

before 5:00 pm on October 21. 2003. These

comments shaIl include the name and

address of the individual or organization

submitting the statement. Written comments may also be submitted electronically

to dwauen@cQhq goy but must still include

the required name and address infonDation..

Interested pm:ons may obtain a copy ofthe

proposed regulations and Regional Haze

S[P element at the Enviromnental Health

Anyone intending to present technical testimony at any ofthe hearings is asked to submit a written notice of intent 10: Attn:

Hearing Record, Mr. Dan Warren.

Albuquerque Environmental Health

Department, P.O. Box 1293, Albuquerque,

NM 871m, or. in advance of the hearing.

you may deliver your notice ofintent to testify to Room 3023. 400 Marquette Avenue

NW. The notice of intent shall identify the

name, address, and affiliation ofthe person

testifying.

Hearings and meetings of the Board are

open to the public and all interested persons

are encouraged to participate. AU persons

who wish to testify regarding the subject of

the 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

Boord Onlinances. Section 9-5-1·6 ROA

1994 and Bernalillo County Ordinance 94-

5, Section 6.

The Air Quality Control Boord is the federally delegated air quality authority for

Albuquerque and BernaliUo County.

Federal. State, and local delegation authorize the Board to administer and enforce the

Clean Air Act. the New Mexico Air Quality

Control Act. local air quality regulations,

and to require local air pollution sources to

hnmediately after the Open Burning bear- comply with air quality standards.

ing closes, a third hearing will be held during which the Board will be asked to place

the amended Open Burning regulation into

the SIP if the Board adopts amendments to

Qpen Burning

The purpose of the second hearing is to

receive testimony on proposed amendments

to the Qpen Burnjng regulation to comply

with federal smoke management mandates

for prescribed burning, agricultural burning,

and wildfIres IlS required by the Regional

Haze regulation.

The Board has extended the public comment period for the October 8, 2003 hearIngs until Novemher 12, 2003, which wUl

provide additional opportunity for comment. The three hearings that will begin on

October 8, 2003 will conclude on

November 12.

November 12, 2003 Iii also tbe scheduled

hearing date for a new regulation pertaining to a Backstop Trading Program

for sulfur dioxide emissions that Is helng

proposed In order to satisfy federal

Regional Haze requirements. A separate

notice will be published giving the date,

time, location and Intent of the Backstop

Trading Program regulation. An earlier

legal ad stated that. at the Board's regular

October 8, 2003 meeting, the Board would

consider whether to approve the submission

of a 'Section 309' Regiona I Haze SIP.

whether to adopt the proposed amendments

to Onen Burning and whether to incorporate the amended Open Burning regulation

into the SIP. Because the Board has extended the public comment period for the three

hearings that will begin October 8. the decision on whether to approve the Section 309

Regional Haze SIP, the Ow Burning regulation and the placement of the QJ:wD

.B.umiDv regulation into the SIP is now

scheduled to occur on November 12, 2003.

On October 27, 2003 at 5:15 PM, the

Board will hold a public hearing In Room

3023 of the AlhuquerquelBernallllo

County Government Center, 400

Marquette Avenue NW, Alhuquerque,

NM 87102. The hearing wUl be regardIng the proposal to amend Section 5 of

20.11.1 NMAC, G@neraIPrgyIsJ0Qs,(Part

1) by deleted the requirement that all regulations become effective on the fint day of

the month. Proposed Section 5 will continue to state that a regulation or standard will

not be effective until 30 days after filing

with the State Records Center, as required

Notices ofRulemaking and Prop-;;.o::..:se:,::d:....:R::..;:u=:l:.::e.=..s _ ALBUQUERQUE I Wilderness Area. by the State Air Quality Control Act.

BERNALILLO COUNTY

AIR QUALITY CONTROL

BOARD

ALBUQUERQUEIBERNALILLO

COUNTY AIR QUALITY CONTROL

BOARD

NOTICE OF HEARINGS AND

MEETINGS; EXTENSION OF

COMMENT PERIOD

On October 8, 2003, at 3:00 PM, the

AlbuquerquelBemalillo County Air Quality

Control Board (Board) will begin a series of

three public hearings in the City

Council/County Commission Chambers of

the Albuquerque/Bemalillo County

Government Center, 400 Marquette Avenue

NW. Albuquerque, NM 87102. The hear.

ings will address:

1. Proposal to submit a "Section

309" Regional Haze element for inclU9ion

into the New Mexico State Implementation

Plan (SIP) for air quality. '"Section 309" of

the federal Regional haze regulation is the

provision that pertains to certain Western

states, including New Mexico

2. Proposal to amend the

Hpmini' regulation, 20.11.21 NMAC (New

Mexico Administrative Code), to incorporate requirements of the federal Regional

Haze Regulation concerning smoke management

3. Proposal to incorporate an

amended 20.11.21 NMAc into the SIP,

superceding Regulation 3

The purpose ofthe I11st hearing is to receive

testimony on proposed submission of a

Regional Haze element for inclusion into

the SIP. The Regional Haze SIP is a federal mandate to develop strategies to improve

visibility in Class I areas to naturel visibility conditions by the year 2064. Class I

areas are those designated as areas of special national or regional value from a natural, scenic, recreational, and/or historic perspective. These areas are the focus of federal visibility protection regulations. including the Regional Haze regulation. Across

the countJy. Class I areas include such

places as the Grand Canyon. Yosemite. Mt.

Rainier. and Yellowstone. Of the 156

mandatory federal Class I areas in the US.

nine Class [ areas are in New Mexico,

including Carlsbad Caverns National Park.

Bandelier National Monument, Bosque del

Apache National Wildlife Refuge. the Gila

Wilderness Area. and the San Pedro Pads
692 New Mexico Register / Volume XIv; Number 19/ October 15, 2003

Department Office. or by contacting Mr.

Neal Bun. electronically at nbutt@cnM ROy

or by pbone (lOl) 768-2660.

NOTICE TO PERSONS WITH DISABILITIES: If you have a disability and require

special assistance to participate in this meeting. please contact Mr. Neal Butt.

Environmental Health Department. Room

3023. 400 Marquette Avenue NW, 768-

2600 (Voice); 768-2617 (FAX); or 768-

2482 (TTY); as soon as possible prior to the

meeting date. Public documents, including

agendas and minutes, can be provided in

various accessible fonnats.

NEW MEXICO

COUNSELLlNGAND

THERAPY PRACTICE

BOARD

Public Rule Hearing

TIle New Mexico Counseling and Therapy

Practice Board will convene a public rule

hearing on Friday November 21. 2003. The

hearing will begin at 10:00 a.m. and a Board

Meeting thereafter at the New Mexico

Gaming Control Board, 6400 Uptown Blvd

NE. Suite 100-£, Albuquerque, New

Mexico. The purpose ofthe rule hearing is

to hear public testimony and comments

regarding the proposed rules and regula·

tions:

Proposed Rules and Regulations

PART 1 General Provisions

PART :2 Mental Health Core Curriculum

PART 3 Application Procedures. Initial

License, License Period

PART 4 Requirements for Licensure as a

Professional Clinical Mental Health

Counselor

PART 5 Req uirements for Licensure as a

Professional Clinical Mental Health

Counselor for LPC's who were

Grandfathered

PART 6 Requirements for Licensure as a

Mamage and Family Therapist

PART 7 Requirements for Licensure as a

Professional Art Therapist

PART 8 Requirements for Licensure as a

Professional Mental Health Counselor

PART 9 Requirements for Licensure as a

Mental Health Counselor (practice under

Supervision)

PART 10 Requirements for Licensure with

Examination as an Alcohol and Drug Abuse

Counselor effective July 1, 2003

PART 11 Requirements for Licensure with

Examination as an Alcohol and Drug Abuse

Counselor effective July 1. 2005.

PART 12 Requirements for Licensure as a

Substance Abuse Trainee effective July 1,

2003

PART 13 Requirements for Licensure as a

Substance Abuse Trainee effective July I.

200l

PART 14 Tempor8I)' License

PART 15 Examinations

PART 16 Continuing Education

PART 17 Fees

PART 18 Code ofEthics

PART 19 Approved Supervisors

PART 20 Parental Responsibility Act

Compliance

NEW MEXICO

DEPARTMENT OF

CULTURAL AFFAIRS

NEW MEXICO MUSEUM OF

NATURAL HISTORY AND

SCIENCE

NOTICE OF PUBLIC HEARING

At the

New Mexico Museum of NatWBl History

and Science

A Division of the Department of Cultural

Affairs

State ofNew Mexico

MUSEUM CONFERENCE ROOM

1801 Mountain Road NW

Albuquerque. New Mexico 87104

(SOl) 841-2823

Friday, November 21. 2003 at II a.m. -12

Noon

FOR CONSIDERATION OF ADOPTION

OF MUSEUM ADMISSION FEE

INCREASE AND VIRTUAL VOYAGES

ADMISSION FEE CHANGE

PROPOSED CHANGE IN MUSEUM

ADMISSION FEE

Adults changed to $6 from $5; Seniors

(60+) changed to $l from $4, and Children

(3-12) changed to $3 from $2.

PROPOSED CHANGE IN VIRTUAL

VOYAGES ADMISSION FEE

Adults changed to $4 from $5; Seniors

(60+) $4 remains lbe scme, and Cbildren

changed to $4 from $3.

[f you are an individual with a disability

who is in need of a reader, amplifier, qualified sign language interpreter. or any other

form of auxiliary aid or service to attend or

participate in the public hearing. please contact Marlene Tanner before November 12.

2003 at (lOl) 841-2823 or TIY 841-2878.

NEW MEXICO ENERGY,

MINERALS AND NATURAL

RESOURCES

DEPARTMENT

ENERGY CONSERVATION AND

MANAGEMENT DIVISION

NOTICE OF PUBLIC MEETING AND

HEARING OF THE NEW MEXICO

ENERGY, MINERALS AND

NATURAL RESOURCES

DEPARTMENT

The New Mexico Energy. Minerals and

Natural Resources Department will hold a

meeting and hearing at 9:00 A.M. Mondsy,

November 10, 2003 in Porter Hall, fmt

floor. 1220 South Saint Francis Drive, Santa

Fe,NM.

During the meeting, the New Mexico

Energy, Minerals and Natural Resources

Department will conduct public hearings on

proposed changes to rules 3.13.19 NMAC

for administration of the Renewsble

Energy Production Ta:I Credit. NMSA

1978, Section 7·2A-19 as amended in 2003.

Copies of the proposed amendments to the

roles are available from the New Mexico

Energy, Minerals and NatWBI Resources

Department, Energy Conservation and

Management Division. 1220 South Saint

Francis Drive, Santa Fe. NM 87505 or by

contacting Michael McDiannid, mmcdiarmid@state.nm.us. AI the conclusion of

the hearing, the Energy, Minerals and

Natural Resources Department may deliberate and make final decisions on the proposed amendments to rules.

All interested persons may participate in the

hearing, and will be given an opportunity to

submit relevant evidence, data, views. and

arguments. orally or in writing.

If you are an individual with a disability

who is in need of a reader. amplifier, qualified sign language interpreter, or any other

form of auxiliary aid or service to attend or

participate in the hearing or meeting, please

contact Michael McDiannid at least One

week prior to the meeting or as soon as possible. Public documents, including the

agenda and minutes, can he provided in various accessible fannats. Please contact

Michael McDiannid at 476-3319, througb

New Mexico voice relay at 1·800-659-1779

or TID 1·800-659-8331, if a summary or

other type of accessible format is needed.

A person who wishes to submit a written

statement, in lieu of providing oraltestimony at the hearing. shall submit the written

statement prior to the hearing, or submit it
SIP EXHIBIT

I 5

PROPOSED FLOOR AMENDMENT FOR 20.11.46 NMAC

FLOOR AMENDMENT 1:

On page 3, line 39 insert the word "all" after the word "means" and

insert the word "of' after the word "Sections".
ATTACHMENTE
TRANSCRIPT OF PROCEEDINGS

In He:

PROPOSAL TO ADOPT AIR BOARD REGULATIDN 20.11.48

NKAC, ".SULFUR DIOXIDE E"ISSJOIIS JIIYENTORY

REQUIREMENTS; WESTERN BAC~STDP SULFUR DIDXIDE

TRADING PROGRAIt"

1

•

•

•

•

6

7

6

9

10

11

12

13

,.

,.

16

17

,.

,.

20

"

'2

2.

••

2'

REPORTED BY:

ALBUQUERQUE/BERNALILLO COU-rY

AIR QUALITY CONTROL BOARD

PUBLIC HEARING

TRANSCRIPT OF PROCEEDINGS

November 12th, 2003

5:63 p .•. One Civic P1.Z8, Northweet

County eo..1tt.. Roo. B

Albuquerque, 118M nexico 87102

MICHELE TRUJILLO, OCR No. 221

Kethy Town.end Court R.port.~

110 Twelfth Street, NorthW88t

Albuquerque, 118M nexico 17102

1

•

•

•

•

6

7

•

9

10

11

1.

13

1.

1.

16

17

1.

1.

20

"

2'

2'

2.

••

nR. OlOMA: Good eY8n1ng. Th1a 1•• Public

He8r1ng regarding the propoe.l to adopt the Air Board

RegUlation 20.11.48 IlKAC, Sulfur Dioxide Em1 ••1ona

Inventory Requirement.: we.tern Beck.top Sulfur Dioxide

Trading Prog~.

Th1a 1•• Pub110 " ..ring being held on

wedneaday, November 12th, 2003, in Bernel1110 County.

Ca..1ttee Roo. B, on the 10th floor of the

Albuquerque/Bernel1110 County Govern.ent Center, in

Albuquerque, HeM nexico. The t1.. now 1. 5:53 p ••.

Th1. 1. a h..r1ng of the Albuquerquel

Bernalillo County Air Boerd, alao known a. the Air Boerd

or the Board, regarding the propo.el by the Albuquerque

Env1ronmentel H..lth Depert.Bnt thet the Air Boerd adopt

Air Board Regulation 20.11.48 NMAC, Sulfur Dioxide

e.1a.1on. Inventory Requ1r...nt.; weatern Backetop SUlfur

Dioxide Tred1ng Progrem, Which 1. alao known a. Part 41

or Regulation or Reg 46.

The Air Quality D1v1a1on of the Environmental

Heelth Depart..nt .tat.. it 1a propo.1ng thet the Air

Board adopt Part 46 in order to ...t requ1r...nta of the

federal Clean Air Act and the federal Regional Haze

Regulat1ona, including Section 308. The regional ha.e

federal regulat10na are codified at 40 Code of Federal

Regulation., Part 51 •

3

1

•

•

•

•

•

7

6

9

10

11

12

13

,.

,.

16

17

16

19

20

.,

22

2.

••

2'

A P PEA RAN C E 5

Hearing Officer:

"R. ARTHUR G. DLONA

Attorney et Law

500 nerquette Avenue, NorthWB8t, Suite 525

Albuquerque, NeM "-x1co 17102

Air Board ~bera:

"S. kAREN WENTWORTH

"R. PAUL 5ILYE~

DR. BETTY CHANG 115. SUE Ur1SHLER

For the Air Quel1ty D1v1a1on:

"So ADELIA W. KEARNY

A••1etent City Attorney

One Civic Pla.a, Northwaat, RoC. 4072

Albuquerque, NeM "-x1co 17101

"R. DANIEL J. WARREN

"So CATALINA LEHNER

"R. NEAL BUrr

I N D E X

TESTI"ONY DF DANIEL J. WARREN

REPORTER'S CERTIFICATE

E X H I BIT S

Exhibit. 1 through 10 admitted

PAGE

7

• 6

PAGE

,.

• 1

•

•

•

•

6

7

•

•

10

11

,.

13

,.

,.

,.

17

,.

,.

.0

.,

22

••

••

••

n'" 1. Art Olona. I'. an attorney. For

..ny y..ra, I waa a "'ber cf the Air Board. Although

I'. no longer a "'ber of the Board, I have been

author1.ed by the Board to conduct th1. hearing th1.

evening.

I note for the record that there are .even

poa1t1one authoriZed to .1t on the Bcard, and pre.ently

thera ere five "'ber. appointed plua two vacenc1e.. The

...bera preaent at th1a Public H..r1ng th1. evening are

"a. Karen wentworth, vice-chair; n.. Sue u.ahler;

"r. Paul 511venaan; and Dr. Betty Chang. If additional

"'b8r. of the Board arrive, I Will nota for the record

when and Who they are.

The court reporter th1. evening 1.

n.. Truj111c, from the Kathy Town.end court reporting

fin-. If ycu went to cbta1n a tran.cr1pt frc. th1.

hearing, you .ay order a tranacr1pt f~ thet fin- and

pay the fin- for that tranecr1pt.

Air Board hear1nge do not follow the rul.. of

evidence ae ueed in a court cf l~. However, it 1a

1mpcrtant to r....ber the Board .u.t ..ke ita dec1.10n

beaed on eworn teet1.cny and evidence e~1tted at th1a

h..r1ng, and that the ewern teet1-eny Will beooee a part

cf the hearing record. D1acuaa1ona during the Air Board

• ..t1ng are not the .... a. eworn te.t1.cny of w1tn...ee

•

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

1
TRANSCRIPT OF PROCEEDINGS

2

3

4

•

•

7

8

9

10

11

12

13

14

,.

,.

17

18

19

20

21

22

23

24

2.

at this hearing.

At th1. hearing] w111 11.1t t ••t1.any that 1.

irre1evant or repeat. te.t1.any a1ready given. A.

hearing officer, I W1l1 ..ke the dec1.1on regarding

whether testimony 18 1rre1evant or repetit1ou.. ] W111

.1'0 rule on whether eVidence or exhibit. may be admitted

into the record and on eny .ation. or Object1one .ade.

We W11l begin the h..r1ng th1. evening w1th the

te.t1~ny of the Air Quality D1vi.10n of the Albuquerque

Environment.l Health Department. The D1v1.ion will

pre.ent the 0iv1810n'. propo.al thet the Air Board edopt

e new regulation Part 48.

Next, proponent. will heve an opportunity to

te.t1fy in fevor of the regulation propo.ed by the

D1v1.ion. After the proponent. te.t1fy, the opponente

W1ll heve en opportunity to te.t1fy. Finelly••ny

intere.ted per.on or perty will heve an opportunity to

te.t1fy.

Each cetegory will be heard in the .... order

a. people who heve .1gned up to teat1fy. Be.ed upon the

number of people who W18h to teatify thi. evening, ] mey

limit the -.ount of t1.e eech per.on ..y teat1fy. ]f you

want to t.8t1fy end hay. not .1gned up, pl.... do .0

in.ed1at.ly. Th.r. 18 ••1gn·up ah..t loc.ted by the

front of the door.

•

1

2

3

4

5

6

7

8

9

10

11

12

13

14

16

16

17

18

19

20

21

22

23

24

26

7

members of the New Mexico State {:>Jr Quality Bureau who

are here tonight, and that is Rita Trujillo, who I

believe is in the Control Strategies Section, and Mary

Hilbert, and ifwe get stuck on something, they may be

able to help me out.

Anyway, good evening, Mr. Hearing Officer and

members of the Board.

MR. OLONA: Excuse me, Dan.

Michele.

DANIELJ. WARREN

after having been first duly sworn under oath,

was questioned and testified as follows:

MR. WARREN: Good evening, Mr. Hearing Officer

and members of the Board. My name is Dan Warren. Iwill

be providing the Staff presentation for today's hearing

on the proposed Regulation 20.11.46 NMAC, also called

Sulfur Dioxide Emissions Inventory Requirements; Western

Backstop Sulfur Dioxide Trading Program. NMAC stands for

the New Mexico Administrative Code.

I am Supervisor for the Control Strategies

Section of the Air Quality Division of the City of

Albuquerque's Environmental Health Department. Ihave

been working in air quality with the Department for about

13 years. My presentation will last approximately 20

minutes.

6

1 Everyone who wishes to testify will be sworn in

2 by the court reporter before giving testimony. Each

3 sworn witness must identify himself or herse~ for the

4 record, and each witness must state his or her name,

6 address, if they represent someone or an organization,

6 and who that person or organization is. After each

7 witness has testified, the {:>Jr Board members or I may

8 question the witness.

9 After the {:>Jr Board and Ihave had an

10 opportunity to ask questions of the witness, Iwill allow

11 any person present to ask the witness questions.

12 Questions to the witness must be related to the testimony

13 just given by the witness. Aperson who is asking a

14 question does not have to be sworn in, but the person who

16 is asking the question cannot tum the question into his

16 or her own testimony.

17 Today, when there are no additional people who

18 want to testify at this Part 46 regulation hearing, I

19 will then close this hearing.

20 The Air Quality Division of the City of

21 Albuquerque Environmental Health Department may now

22 begin.

23 Mr. Warren.

24 MR. WARREN: Thank you.

25 Before Ibegin, Iwanted to welcome acouple of

1 For the record, Iwant to state that public

2 notices for tonight's proceedings were legally advertised

3 in the local newspaper, and information was placed in the

4 New Mexico Register. These exhibits are numbers 4,5 and

6 6.

6 In addition, we sent electronic and

7 regular-mail notifications to various individuals. A

8 copy of the e-mail notifications and related materials

9 are in Exhibits 3, 7, Sa and Sb. We believe we have

10 satisfied all legal requirements for posting and given

11 proper notice on this matter. Exhibn Number 9is the

12 agenda for today's proceedings.

13 The Albuquerque/Bernalillo County {:>Jr Quality

14 Control Board is the entity empowered by the State of New

16 Mexico with authority to adopt air quality control

16 regulations for Bernalillo County in New Mexico.

17 The purpose of this hearing is to propose anew

18 air quality regulation enlilled "Sulfur Dioxide Emissions

19 Inventory Requirements, Western Backstop Sulfur Dioxide

20 Trading Program:' and the regulation has been assigned

21 the number 20.11.46 NMAC. The proposed regulation is

22 Exhibn Number 1.

23 Because the proposed regulation pertains to the

24 emissions of sulfur dioxide, nmay be helpful to

26 understand how sulfur dioxide relates to regional haze.

8

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

2
TRANSCRIPT OF PROCEEDINGS

9 11

1 There are five main culprits causing regional haze. 1 commission was to develop control strategies to reduce

2 These are nitrates, elemental carbon, organic particles, 2 sulfur dioxide emissions from large stationary sources.

3 soil particles, and hydrated ammonium su~ate particles. 3 The Federal Register notice on June 5th, 2003, approved

4 Relatively large hydrated ammonium sulfate 4 what is referred to as the annex to the commission's

5 particles are formed from sulfur dioxide. Su~ur dioxide 5 recommendations regarding the program to reduce sulfur

6 emissions are aproduct of anumber of sources, including 6 dioxide emissions. The annex was needed to address two

7 · the combustion of gasoline and coal. 7 key parts of the commission's recommendations concerning

8 Sulfur dioxide is emitted from industrial 8 sulfur dioxide control-- concerning asu~ur dioxide

9 sources and vehicle tailpipes, and it then combines with 9 control program.

10 ammonium molecules to form ammonium sulfate. The 10 First, the annex establishes specific

11 ammonium sulfate particles have agreat affinIty for 11 milestones for stationary source sulfur dioxide emissions

12 water molecules, and so they combine w~h water molecules 12 that achieve the commission's recommendations to have

13 in the atmosphere, growing to about one to two microns in 13 declining caps for sulfur dioxide emissions.

14 size. 14 The milestones within the annex are intended to

16 Particles that are in the one- to two-micron 16 accomplish four things. The milestones demonstrate

16 size range are the most efficient in scattering light 16 reasonable progress in reducing stationary source su~ur

17 and, therefore, contribute substantially to regional 17 dioxide emissions. The milestones help achieve the goal

18 haze. Of the five culprits causing regional haze, 18 to reduce stationary source su~ur dioxide emissions by

19 sulfate compounds are considered the worst in terms of 19 50 to 70 percent by the year 2040. The milestones

20 visibility impairment. 20 provide greater emissions reductions than would be

21 This regulation is being proposed in order to 21 achieved by application of "Best Available Retrofit

22 fulfill requirements for per- - I'm sorry -- pertaining 22 Technology" to stationary sources, and the milestones -

23 to the regional haze State Implementation Plan element. 23 and the milestone-related provisions of the annex provide

24 The acronym SIP stands for State Implementation Plan. 24 for timing of progress assessments and identification of

26 The companion hearing that began on October 8th, 2003, 26 mechanisms to address cases where sulfur dioxide

10 12

1 · regarding this proposed Section 309 Regional Haze SIP 1 emissions exceed the milestones.

2 Element is scheduled to be continued later this evening. 2 The second major aspect of the annex is that

3 Section 309 refers to Part 51.309 of Title 40 3 documents the setting forth of the details regarding how

4 of the United States Federal- Federal- Code of 4 amarket trading program will be implemented if voluntary

5 Federal Regulations. The basic requirements for a 6 su~ur dioxide controls are not sufficient and the

6 Section 309 SIP were published in the United States 6 milestones are exceeded.

7 Federal Register on July 1st, 1999, and became effective 7 The proposed regulation contains the

8 August 30th, 1999. 8 requirements that regulated sulfur dioxide - sulfur

9 The Section 309 requirements were amended in 9 dioxide sources must follow. Most of the regulation is

10 the United States Federal Register on June 5th, 2003, and 10 concerned with the market trading program.

11 these modifications became effective August 4th, 2003. 11 Iwant to emphasize that the proposed new Part

12 The June 5th, 2003, Federal Register notice is contained 12 46 regulation was developed primarily by the Western

13 in Exhibit 2. 13 Regional Air Partnership, or the WRAP. The WRAP is an

14 ASection 309 SIP is one of two types of SIPs 14 organization consisting of representatives of the Western

15 available to New Mexico in order to comply with federal 16 Governors' Association and western Indian tribes that was

16 regional haze requirements. ASection 309 SIP relies 16 established pursuant to the 1999 regional haze

17 upon the work of the Grand Canyon Visibility Transport 17 regulation.

18 Commission and is an option available to only nine states 18 The WRAP has been responsible for developing

19 in the Rocky Mountain region. 19 the technical analyses and SIP-related documents to

20 As provided by the Clean Air Act amendments of 20 satisfy regional haze requirements. The Air Quality

21 · 1990, the Grand Canyon Visibility Transport Commission 21 Division has essentially transformed atemplate

22 was established in the early 1990s, and after years of 22 regulation into the format used by the New Mexico State

23 work, the commission issued areport in 1996 that 23 Records Center.

24 contained recommendations for addressing regional haze. 24 Iwill now discuss some of the elements

26 One of the key recommendations of the 26 contained in the proposed Part 46. Proposed Part 46 sets

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

3
TRANSCRIPT OF PROCEEDINGS

13 15

1 forth requirements for stationary sources that produce 1 floor allocations for each WEB source, and these floor

2 100 tons or more of sulfur dioxide emissions per year. 2 allocations are essential~ what the source's emissions

3 Two sources in Bernalillo County that today would be 3 are today. For the GCC cement plant the value is 1,103

4 affected by the regulation are the GCC cement plant in 4 tons of sulfur dioxide per year, and for the city's waste

5 TIjeras Canyon, east of Albuquerque, and the City of 5 treatment plant, the value is 120 tons of sulfur dioxide

6 Albuquerque's liquid waste treatment plant. 6 per year.

7 These sources will be required to report their 7 In addition to the existing - I'm sonry. n

8 annual emissions to the Air Quality Division under 8 addition to the existing levels of emissions, these

9 Section 9of Part 46. The emissions will be reported to 9 sources are likely to get an additional allocation from a

10 the WRAP, and the states participating in the Section 309 10 category of emissions called the reducible allocations.

11 program will determine asulfur dioxide emissions 11 The reducible allocations are essential~ sulfur dioxide

12 milestone for the region has been exceeded. 12 emissions that have been made available due to reductions

13 appears that amilestone cap for a 13 from the overall system due to use of renewable energy

14 particular year has been exceeded, the regional haze SIP 14 and early reductions made at sources.

15 describes how the affected states will make aconsensus 15 As circumstances stand today, because the Chino

16 decision regarding the triggering of the Westem Backstop 16 Mines sme~er has rece~ ceased operations, these

17 Su~ur Dioxide Trading Program, also called the WEB 17 emissions are available to be distributed amongst the

18 trading program. 18 non-utility sources. Therefore, both the GCC cement

19 the WEB trading program is triggered due to 19 plant and the waste treatment plant would receive an

20 amileslone not being met, the more rigorous requirements 20 allocation equal to what they have today, plus some small

21 of Sections 11 through 22 will go into effect. Once the 21 amount of allocation from the reducible allocations

22 WEB trading program has been triggered, stationary 22 distribution.

23 sources that meet the 100-ton-or-more-per-year threshold 23 Allowances are placed into an allowance

24 level will become WEB sources. 24 tracking system account that is managed by the Department

25 Each WEB source will be required to assign a 25 in coordination with the Tracking Syslem Administrator.

14 16

1 person to be account representative for the source, who 1 The account is ageneral account that is used for holding

2 is responsible for ensuring that the source complies with 2 and transferring allowances.

3 the WEB trading program, and acertificate must be 3 Section 19 of the regulation specifies how a

4 submitted to the Department providing basic information 4 source demonstrates compliance, and also contains the

5 about the source. 5 penaily provisions. asource exceeds their allowance

6 Once the WEB trading program is triggered and 6 allocation, there are two types of penalties: First, a

7 the certificate has been provided, the source becomes 7 monetary penaily of $5,000 per each ton of sulfur dioxide

8 registered with the Department Each source will be 8 emitted in excess of this source's allocation; second~,

9 given an allowance allocation, as provided for in Chapter 9 for each ton emitted in excess of the allocation, two

10 6of the regional haze SIP element. This allowance is 10 tons will be deducted from the next yea(s allocation.

11 the amount of sulfur dioxide that the source is allowed 11 In addition, anew source wishes to

12 to em~ in agiven time period. 12 establish ~e~ anywhere in New Mexico, apool of new

13 is important to note that, once the WEB 13 source set-aside allocations has been established by the

14 source's allocation has been set. the source will have 14 annex that are available. These allocations for new

15 several years before they actual~ have to comp~ with 15 sources will be issued on essential~ afirst-tome,

16 the allocation. This provides time for the source to 16 first-serve basis. Note, however, once the region has

17 implement controls, if they are needed, or they may 17 used up the new source set-aside emissions, trading will

18 purchase additional emissions allowances from other 18 be the option available for new sources to obtain

19 sources in the area. 19 emissions.

20 The initial allocation for the affected sources 20 Furthermore, an existing source undergoes an

21 will be developed based on areport from the Air Quality 21 expansion that resu~ in the need for more emissions,

22 Control Board to the Tracking System Administrator, who 22 the source can request allowances from the new source

23 in this case will essential~ be the WRAP. 23 set-aside allocation. For any source that needs more

24 The report will identify existing WEB sources 24 allocations in order to operate, the source can buy

25 and any new WEB sources. The report will identify the 25 allocations from other sources.

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

4
TRANSCRIPT OF PROCEEDINGS

17 19

1 Section 16 of the regulation contains the very 1 (Exhibits 1through 10 admitted.)

2 detailed mon~oring, record keeping and reporting 2 MR. OLONA: Anything further, Mr. Warren?

3 requirements for WEB sources. Note that the GCC cement 3 MR. WARREN: No, that concludes my testimony,

4 plant and the waste treatment plant will only need to 4 and Istand for questions.

5 implement more stringent mon~oring if they have excess 6 MR. OLONA: Any members of the Board have any

6 emissions they want to use for the trading program. 6 questions for Mr. Warren?

7 Otherwise, they will continue with the same form of 7 Ms. Umshler.

S· mon~oring they use today. 8 MR. SILVERMAN: Ihave two questions.

9 Based on aconversation Ihad with Steve Frey 9 Whafs the technology, current - the current

10 from the U.S. Environmental Protection Agency in San 10 technology for eliminating sulfur dioxide from boilers

11 Francisco earlier today, my understanding is that most of 11 and smokestacks or whatever major point sources we have?

12 the sulfur dioxide emissions reductions will come from 12 Is there an effective technology?

13 coal-fired utilities. 13 MR. WARREN: Well, Mr. Hearing Officer, Board

14 In contrast, the non-util~ sector will mostly 14 Member Silverman, there are technologies that are

16 see reductions from copper sme~ers, refineries and 16 applicable to different kinds of sources.

16 boilers that produce 100 tons or more of sulfur dioxide 16 As turns out, in the case of the cement

17 emissions in ayear. Therefore, the requirements of Part 17 plant for instance, when the work was being done on

18 46 are expected to have little, if any, negative impact 18 developing this regulation, they really didnt identify

19 on existing sources in Bemalillo County. 19 what was called a"Best Available Retrofit Technology"

20 As of the beginning of this hearing, Ihave 20 that would be applicable to that type of operation, and

21 received no written comments on the proposed regulation. 21 thafs why they basically get to keep the emission levels

22 Ipersonally talked to the manager of the C~'s liquid 22 that they have today, because they didnt, I guess,

23 waste treatment plant, Mr. Doug Daley, and sent the 23 identify an economically feasible control strategy for

24 proposed regUlation to him. Ialso sent the proposed 24 that type of sources, but there - there are - my

25 regulation to Mr. Brian McGill at the GCC cement plant 26 understanding is there are other controls, depending on

18 20

1 and left aphone message offering to discuss the 1 the type of source.

2 regulation. 2 MR. SILVERMAN: Is there - are there drying

3 Ido have one proposed floor amendment, which I 3 kilns that are the source of their sulfur dioxide

4 would like to state, and this floor amendment would apply 4 emission?

5 on page 3, line 39, of Exhibtt Number 1, and what 6 MR. WARREN: Mr. Silverman, Ibelieve thafs

6 would do is insert the word "all" after the word "means" 6 correct, that it's the - those are coal-fired kilns that

7 and insert the word "of' after the word "sections." 7 they use.

8 Ithink, after Idid, basically, the red~ine 8 MR. SILVERMAN: Really? Coal-fired?

9 strike-out and accepted the changes, what Iexpected to 9 MR. WARREN: Ibelieve thafs correct.

10 come out didn't exactly come out the way Ithought was 10 MR. SILVERMAN: Ididn't know that.

11 going to. 11 You said that the major sources of reduction

12 Mr. Hearing Officer, Iwould now ask that the 12 are going to come from boilers and electrical generating

13 Exhibits 1through 9be admitted into the record, and I 13 plants. Is there reasonable technology available for

14 would also - Ithink we could also label the proposed 14 those inslililations that - to reduce sulfur dioxide

15 floor amendment as ExhiM Number 10, since we have no 16 emissions? Do you know?

16 comments under that tab. 16 MR. WARREN: Mr. Silverman, Ibelieve there

17 And so, if- 17 are, and that is why, in the non-util~ side of things,

18 MS. KEARNY: And you're asking that 10 be 18 they do expect to achieve reductions from those types of

19 admitted, also? 19 industries or sources.

20 MR. WARREN: Yes. 20 MR. SILVERMAN: Do we have abenchmark, in

21 MR. OLONA: Okay. Any objection to Exhibits 1 21 terms of opac~, of where we are with regional haze, and

22 through 10? 22 do we have asecond benchmark of where we want to be so

23 There being no objection, Exhibits 1through 23 that this regulation can maybe one day go away?

24 10, which includes the floor amendment, are hereby 24 MR. WARREN: Mr. Silverman, we do have

25 admitted. 25 benchmark data, in terms of the visibil~ impairment

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

5
TRANSCRIPT OF PROCEEDINGS

21 23

1 that is occurring. There is amonttoring system thafs 1 MS. KEARNY: Dan, they require that in case

2 called Improve, and tt is operated by, Iguess, 2 there are amendments of certain sections later.

3 primari~, the National Park Service, you know, Ithink, 3 MR. WARREN: Yeah, the reason that the - after

4 in cooperation with some other entities, but that system 4 the wording there about December 31st, 2003, that tt

6 has been taking measurements of visibiltty in some of the 6 talks about alater date is that, in the future, if this

6 Class I areas, which is where we are wanting to improve 6 regulation were to get opened up and on~ one section

7 the visibiltty, and so - basical~, you measure the 7 were to get modified, then, at that time, maybe five

8 vi~ibiltty conditions in terms of - decMews is the 8 years down the road, there would be adifferent date at

9 descriptor for that. 9 the end ofthat section, but the other 23 or 24 sections

10 The WRAP has conducted ana~es that show 10 would still have the original date.

11 improvements over time, and in this case we're talking 11 MS. UMSHlER: Ijust wanted to make sure we

12 out to the year 2018, although the ultimate goal of 12 were okay before we tried to file this.

13 achieving natural visibiltty conditions would not occur 13 My second question is on page 3, starting on

14 .- well, the goal is to get there by 2064, and so this 14 line 20 - on line 48, Section 9. From your testimony, I

16 is, like, the first part of the process, so - 16 understand that this is basical~ what these two sources

16 MR. SilVERMAN: So our goal is back to - is 16 are going to have to do, so my question is -I'm just

17 back to before man walked on this continent? 17 trying to get apicture of what these two regulated

18. MR. WARREN: Well, as - you know, basical~, 18 entities have to do right now, and my understanding is

19 tt is to address man",aused pollutants that are impairing 19 that they have to file - they have to register with the

20 visibiltty in these national parks, wildemess areas and 20 Department, and then they have to do an inventory and

21 so forth. 21 reporting process, but until there is a- until there is

22 MR. SilVERMAN: And thafs set up in the 22 amissed milestone, nothing else in this regulation is

23 federal legislation? 23 triggered. Is my understanding correct?

24 MR. WARREN: Yes, tt is. 24 MR. WARREN: Board Member Umshler, Ibelieve

26 MR. SilVERMAN: Okay. 26 that is correct, as you stated.

22 24

1 Has the Stale adopted - the Stale fJ.Jr Qualtty 1 The Section 9is intended to have them report

2 Control Board adopted Section 309 yet? 2 out their emissions, which these are under permtt already

3 MR. WARREN: Mr. Silverman, my understanding is 3 from us, and so we would real~ be getting the

4 that the state fJ.Jr Qualtty Bureau will begin their 4 information today, and so hopefuly tt would not be,

6 hearings on aSection 309 State Implementation Plan 6 real~, anew burden; and until the backstop trading

6 element next week and that their documents are out for 6 program portions, which is basical~ the rest of the

7 public review at this time. 7 regulation after that - until that gets triggered, the

8 MR. SilVERMAN: Thafs all the questions I 8 on~ thing they have to do is Section 9, which is provide

9 have. 9 us the emissions inventory data, and, of course, then

10 MR. OlONA: Board Member Umshler. 10 that is used to determine if the milestones are being

11 MS. UMSHlER: Ihave two questions. The first 11 met

12 one is on page one of Exhibtt 1, lines 28 through 33, the 12 MS. UMSHlER: And if the milestones aren1 met,

13 Effective Date clause. Are we going to have the same 13 it's not just these two sources. Thafs when we're going

14 problem with this effective date being acceptable to the 14 to have this whole conversation with the entire state and

16 State Records Center, since tt is something of a 16 with all of the other sources, and these two - our two

16 contingency, or by stating "December 31st excep~" is 16 regulated entities would be involved in that?

17 that going to be acceptable to them, or do we need to 17 MR. WARREN: Yes, thafs correct. The data we

18 make this aspecific day? 18 get Will be transmitted to, basical~, the WRAP or the

19 MR. WARREN: Well, Ibelieve that the language 19 Tracking System Administrator or - and they - they'll

20 that is there, which says "December 31st 2003, except 20 take everybody's data within the region, everybody that

21 where alater date is ctted at the end of asection," the 21 is in the Section 309 program, which Ibelieve at this

22 way this is put together, there are no other dates at the 22 time is five or six states, and so there's not, like, a

23 end of sections except for December 31st 2003. So we 23 milestone for each source at this time.

24 have aspecific date, and, in fact, that's the on~ date 24 MS. UMSHlER: And Iguess that brings up - one

26 that will work for us for this particular purpose. 26 other question is that, if anew source comes into

KATHY TOWNSEND COURT REPORTERS (505) 243·5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

6
TRANSCRIPT OF PROCEEDINGS

KATHY TOWNSEND COURr REPORTERS (505) 243-5018 7

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

25 27

1 Bernalillo County, then, at this time, do they start this 1 MR. SilVERMAN: And just - Ms. Umshler noted

2 registration process, or do they have to go to this pot 2 that the tribes are listed on here and with no adjustment

3 of reserve S02 emissions and get an allocation there 3 needed. Does that mean that the tribes are exempt from

4 first before they register with you? Is that how that's 4 this regulation?

5 going to work? 5 MR. WARREN: No, the tribes are aetual~

6 MR. WARREN: What would happen is, if anew 6 required to subm~ regional haze state implementation -

7 source came in, they would be regulated under, probab~, 7 aetual~, would be tribal implementation plan

8 Part 41, which is Authority to Construct, and they would 8 elements.

9 . get aperm~, and as part of that, they would be required 9 However, they were given special provisions in

10 to report out their emissions; and this is just 10 the regional haze regulations, and they can subm~ a309

11 essential~ echoing what they would be required under 11 SIP, but they're not under the same time constraints that

12 that, but they would not, in the pre-trigger time period, 12 we have. They can pretty much - or my understanding is

13 have to go app~ for an allocation from apool. 13 they can come in next year, two, three years down the

14 MR. SilVERMAN: And what is Bernalillo County's 14 road, with their tribal implementation plans, and so

15 new source allocation, the size of~? How many tons? 15 they, someday, could participate.

16 MR. WARREN: Well, Mr. Hearing Officer, Board 16 MR. OlONA: Any other questions by members of

17 Member Silverman, the way was explained to me by 17 the Board?

18 Mr. Frey from EPA in San Francisco is that there isnt 18 MS. WENTWORTH: Dan, what do we do if the WRAP

19 real~ anew source allocation for agiven county, or 19 group unravels? tt looks like we would be in trouble

20 even for agiven state. tt is apool of new source 20 very quic~ if something happens to them.

21 allocations for all of the 309 entities, and so - 21 MR. WARREN: Board Member Wentworth, that's a

22 MR. SilVERMAN: And do we know how big that is? 22 good question. There are some sort of fall-back

23 MR. WARREN: We can - if you hang on amoment, 23 contingencies to address the situation if the WRAP were

24 I'll see if Ican - 24 to cease to exist for some reason, and basical~ the

25 MR. SilVERMAN: Is California one of those 26 stales would have to e~er take on some of the duties

26 28

1 states? 1 themselves or find anew replacement regional

2 MR. WARREN: Cali- - yeah, Ifound here. 2 organization to fulfill the duties of - that would be

3 Mr. Silverman, there - within the SIP document 3 done by the WRAP.

4 for the regional haze, Section 309 regional haze element, 4 MS. WENTWORTH: Do we have any kind - do we

6 there is atable that identifies the new source set-aside 5 have the kind of mon~oring equipment in place that would

6 numbers. But you have to be careful when using these 6 be necessary if we had to take this on?

7 numbers, because what - the purpose of these numbers 7 MR. WARREN: The - well, in our air qual~

8 being listed here in this - it's on page - well, I 8 jurisdiction, we're not mon~oring in the same fashion as

9 think, around page 35 or 36, depending on which version 9 the Park Service is doing with the improved system at the

10 you have there. 10 national parks.

11 There are numbers identified for each of three 11 So the PlJr Qual~ Division or the - you know,

12 different time periods, and the real purpose for these 12 our program would not need to be doing the visibd~

13 numbers is not to assign anew source allocation to a 13 mon~oring, atthough we do have aprogram to begin to

14 given state. What the purpose is is that there's atotal 14 look at visibil~ for our own purposes, basical~, to

15 for the region, essentially; and if, for instance, 16 try to assess the brown cloud in our part of the valley

16 California does not subm~ a309 SIP and come into the 16 here, but we would not have to take on new mon~oring

17 program, then the overall amount for the region will be 17 equipment for visibil~.

18 deducted by - in the case of California, for the 18 MS. WENTWORTH: Is that something the State of

19 2003-2007 time period, 559 tons will come out of what's 19 New Mexico would do?

20 available to the remaining states that are in the 20 MR. WARREN: No.

21 program. 21 Going back to alillie earlier in my testimony,

22 So - but doesnt real~ - that's the 22 Ibelieve Iindicated that is the National Park

23 purpose of this. It's not to earmark anumber of tons 23 Service who is running that mon~oring system, so they -

24 for new sources in aparticular state, and that's my 24 you know, they're not part of the C~ ofAlbuquerque's

25 understanding as was explained to me by Mr. Frey. 26 government process, nor the State of New Mexico's air .
TRANSCRIPT OF PROCEEDINGS

29 31

1 quality programs. 1 State your name.

2 Although there's, you know, collaboration, they 2 MS. TRUJillO: Hello, I'm Rita Trujillo. I'm

3 get their - my understanding is they get their funding 3 the Control Strategy Section Manager for the Environment

4 independent of the way we get our funding. So they would 4 Department's Air Quality Bureau, kind of Dan's analog.

6 continue on with their mon~oring with the same sources 6 MR. OlONA: Thank you. Please raise your right

6 of funding that they get today. 6 hand to be sworn by Ms. Trujillo.

7 MS. WENlWORTH: So WRAP - something happen 7 RITA TRU.lIll0

8 to WRAP, we don't have - dont really have aplan? 8 after having been first duly sworn under oath,

9 MR. WARREN: Well, something were to happen 9 was questioned and testified as follows:

10 to the WRAP and were to go away, you know - and, for 10 MR. OlONA: Please proceed, ma'am.

11 instance, 1believe they get funding from the Western 11 MS. TRUJillO: Okay. Ijust kind of wanted to

12 Governors' Association, and the U.S. Environmental 12 address some of these questions about what happens the

13 Protection Agency has also provided funding to the WRAP. 13 WRAP goes away.

14 If that revenue went away and they went away, 14 In our State Implementation Plan that we've

15 then Ithink that would begin to cause some pretty 16 developed, we have addressed that and we've basically

16 significant problems for continuation of the Section 309 16 said that essentially what WRAP's function will be is to

17 program, but what would have to happen is an atternative 17 kind of serve as the tracking administrator.

18 organization of some sort would have to be developed and 18 They11 track what the emissions are from the

19 . funded by somebody. 19 different states. The different states will provide that

20 MR. SilVERMAN: Ithink the reality of is 20 to them. In the absence of the WRAP, ~will be the

21 that - is that every - is that the states that are 21 responsibility of the state to track those emissions and

22 participating in the WRAP adopt these regulations, they 22 to make sure that thafs taken care of.

23 put them in their state implementation plans, and, you 23 There are currently five states and the City of

24 know, something happens to ~, then all of the states are 24 Albuquerque that are looking at developing 309 SIPs. So

26 going to be out of compliance with their state 26 those slates currently have developed a309 coordinating

30 32

1 implementation plans and - 1 committee through the WRAP. ~the WRAP fell through,

2 No, they're not going to be out of compliance? 2 for some reason - maybe Western Governors decides they

3 Well, unless they gear up - you know, unless 3 no longer want to have this partnership. Maybe-I

4 they gear up with their own subslilule for ~, but 4 cant imagine that happening.

6 seems to me that the federal government is buying 5 We're not the only regional planning

6 compliance with this whole concept by funding the WRAP so 6 organization in the Un~ed States. There are regional

7 that the states can come into compliance with this SIP 7 planning organizations across the Un~ed States.

8 part of the Clean Air Act and not be out of abunch of 8 Regional haze is aregional issue.

9 money, and so everybody says, 'Well, thafs great. let 9 The WRAP will also be working on the 308 SIPs

10 them do the work, you know, and we'll sign up for that 10 with the other slates that are members of the WRAP, that

11 program." 11 are not preparing 309 SIPs. So WRAP is not just a309

12 You know, 1-thafs what appears to be 12 organization. It's an organization of 13 western states

13 . happening, in my viewpoint. Iwont express further 13 and the tribes in those states. So it's not simply a309

14 opinions until we get to considering the piece ~e~. 14 organization, okay?

15 MR. OlONA: Any other questions by members of 16 tt would be our responsibility to ensure that

16 the Board for Mr. Warren? 16 all of the states continue to work together. It's a

17 Does any member of the public have any 17 regional problem and aregional concern, and we would

18 questions for Mr. Warren regarding his testimony and the 18 have the responsibility for making sure that everything

19 regulation proposed by the Division? 19 is tracked and those milestones are sel

20 There being none, thank you, Mr. Warren. 20 It's astate SIP. It's not aWRAP SIP. So

21 MR. WARREN: Thank you. 21 ~'s astate program or acily-<:ounty program, not aWRAP

22 MR. OlONA: At this time the Board will hear 22 program, and I'd be happy to answer any other questions.

23 testimony from any proponents, that is, any group or 23 DR. CHANG: What are the five states?

24 individual that is in favor of the regulation as proposed 24 MS. TRUJillO: Oregon, Wyoming, Utah, Arizona

26 by the Department. so, please step forward. 26 and New Mexico, and, of course, Bernalillo County/City of

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

8
TRANSCRIPT OF PROCEEDINGS

2 Requ1r...nta; We.tern Beck.top Sulfur Dioxide Trading

3 Progr..,R 1. now cloeed.

4 (H..ring clc••d at 6:38 p ••• )

•

33

1 Albuquerque.

2 MR. OlONA: Any other questions by members of

3 the Board?

4 Okay. Thank you, Ms. Trujillo.

5 MS. TRUJillO: Thank you.

6 MR. OlONA: Does any other person wish to

7 address the Board regarding this proposal? You have to

8 step forward.

9 Okay. There being none, at this time the Board

10 will hear testimony from any group or organization that

11 is an opponent, that is, not in favor of the regulation

12 proposed by the Department. Please step forward and give

13 testimony.

14 There being none, at this time the Board will

15 hear testimony from any interested person, group,

16 organization that wishes to give testimony neither in

17 favor or against the regulation but more as an interested

18 person. Please step forward and give testimony.

19 There being none, immediately after this Part

20 46 regulation hearing closes this evening, Iwill begin a

21 brief separate hearing regarding the proposal to

22 incorporate Part 46 into the New Mexico Slate

23 Implementation Plan for air quality, if the Board adopts

24 Part 46.

25 In addition, tonight, to the f'Jr Board hearing

1

•

7

•

•

1.

11

12

13

14

1.

17

1.

1.

2.

21

22

23

24

2.

Pert 46, entitled "Sulfur Dioxide &1 ••10n8 In....ntory

3'

1

34

regarding the regulation Part 48 h..ring and the related 1 STATE OF NEW "EXICO )

3.

2 Part 46 SIP h88r1ng, there wi" thr" other h.ar1ng.

3 th1. evening: The cont1nuet1on of the h..r1ng regerd1ng

4 the propo••l to ...nd Pert 21, Open Burning; the

cont1nuet1on of the hearing reg.rd1ng the propo.el to

6 incorporate any Pert 21 amena.ent. into the SIP; end the

7 continuation of the hearing propo.1ng th.t the Air Boerd

8 adopt Section 309 Reg10nel Hexe SIP Elem.nt.

S Tonight, if e quoru. of the Air Board 1.

10 pre.ent end the Air Boerd det.~1n.. it'. not too lete in

11 the evening, the Air Board 1a expected to hold it.

12 raguler 1II0nthly ...t1ng.

13 Aa agenda it... at the Nov..oer 12th Air Board

14 meeting, the Board 18 expected to con.1der the folloW1ng

15 propo••l. related to regional heEe: one, the adoption of

16 the new Pert 46 regulation regarding .ulfur dioxide

17 1nvantory end tred1ng; two, 1ncorporet1on of the new Part

2 •••.

3 COUNTY OF BERNALILLO)

4 I, "1ohele ". Trujillo, the officer before whom the

8 foregoing hearing was tek.n, do h.r.by certify thet the

e W1tn••••• who.e te.t1.any eppeer in the for.go1ng hearing

7 tr.n.cr1pt were duly .worn by ..; thet I per.onally

B recorded the teet1.any by mech1ne .horthend; that ••1d

Shearing 1. e true record of the te.t1mony given by .a1d

10 w1tne••••; thet I .. neither ettorney nor coun.el for,

11 nor releted to or employed by eny of the partie. to the

12 ect10n in which th1. hearing 1. taken, and that I am not

13 e relet1v. or employea of eny ettorney or coun.el

14 employed by the part1" hereto or f1n.nc1elly 1ntereated

15 1n the action.

,. ORIG'NII,'. SIGNED BY

17 MICHi:~L t,1 TRUJILLO

18 46 into the SIP, if the Boerd adopt. Pert 46; threa,

19 ~ndment of Part 21, Open Burning; four, 1noorpo~t1on

,.

,.

NaTARY PUBLIC

CCR L1cen.e Nueber: 226

Exp1r..: 12/31/03

20 of any Pert 21 emena.ente 1nto the SIP, if the Air Boerd 20 tty Co-rIe.1on Exp1r": 11/28103

21 adopte ...nd.ants to Part 21; and f1 ..... adoption of the 21

22 propo••d heM section 308 Region.' Haze SIP El...nt. 22

23 Thank you, .....ryone. for coming th18 .....ning. 23

24 The t1.. 1. now 6:39 p.m. Th18 Part 46 regulation Z4

25 hearing regarding the propo••' to adopt. heM regulation 25

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

9
TRANSCRIPT OF PROCEEDINGS Index Page 1

$ 3 [IJ 8:9 Agenda

8b [218:1234:13

$5,000 3 IIJ 8:9 Air

11]18:7 [218:9 18:5 23:13 8th 148] 1:11:42:52:93:23:123:123:14

308 IlJ 9:25 3:153:193:203:224:24:194:245:95:

1 (1)32:9 116:76:96:207:17:217:238:138:15

309 9 8:18 10:20 12:13 12:20 13:8 14:21 22:

1 [23] 3:23 10:110:3 10:6 10:9 10:14 10: ' 22:428:728:1128:2530:831:433:

[8] 2:22 8:22 18:5 18:13 18:21 18:23 9 2333:2534:734:934:1034:11 34:13

19:1 22:12 1613:1022:2 22:5 24:21 25:21 26:4 [8] 8:1113:918:13 23:14 24:124:8 34:20

1,103 26:1627:1029:1631:2431:2532:11 Albuquerque 32:11 32:1334:834:22

IIJ 15:3 30th [12] 1:14 1:23 2:4 2:11 3:103:11 3:13

10 [1] 10:8 5:96:2113:531:2433:1

[6} 2:22 18:15 18:18 18:22 18:2419:1 31st (1)38:17 Albuquerque's

100 14]22:1622:2022:2323:4 (3)7:22 13:6 28:24

[2113:2 17: 16 33 A Albuquerque/Bernalillo

100-ton-or-more-per-year [IJ 22:12 Able [211:13:98:13

IIJ 13:23 35 [lJ 7:5

AllocaUon

10th [17) 14:9 14:14 14:16 14:20 15:9 15:20

[1]3:8 11]26:9 Absence 15:21 16:6 16:8 16:9 16:10 16:23 25:3

11 38 [1]31 :20 25:1325:1525:1926:13

IIJ 13:21 [212:1926:9 Acceptable AllocaUons

11/29/03 39 [2122:1422:17 110]15:115:215:1015:1115:2116:13

[I] 38:20 [1]18:5 Accepted 16:14 16:24 16:25 25:21

110 4 (1)18:9 Allow

[1]1:23 Accomplish IIJ 8:10

12/31/03 4 [1J 11:15 Allowance

IIJ 38:19 11]8:4 Account [4J 14:9 14:10 15:23 16:5

120 40 [4) 14:115:24 16:118:1 Allowances

[1]15:5 [213:24 10:3 Achieve 14]14:1815:23 16:2 18:22

12th 4072 [2111:1211:17 20:18 Allowed

13] ;:12 3:7 34:13 [I] 2:11 Achieved [IJ 14:11

13 41 [IJ 11:21 AlternaUve

l2J 7:24 32:12 11]25:8 Achieving 11]29:17

18 48 [1]21:13 Amend

IIJ 17:1 [20] 3:17 3:18 3:215:128:1812:1212: Acronym [IJ 34:4

19 2512:2513:9 17:1833:2033:2233:24 [IJ 9:24 Amended

[21 2:22 16:3 34:1 34:234:1634:1634:1834:2435:1 Act 11]10:9

1990 48 [213:22 10:2030:8 Amendment

(1) 10:21 11]23:14 AcUon [&J 18:3 18:4 18:15 18:24 34:19

1990s 4th [2138:1238:15 Amendments

IIJ 10:22 II} 10:11 AddlUon [&J 10:2023:234:634:2034:21

1998 5 [S] 8:615:715:818:1' 33:25 Ammonium

[1]10:23 Additional III 9:3 9:4 9:10 9:10 9:11

1999 5 [4) 4:11 6:17 14:18 15:9 Amount

[3] 10:7 10:8 12:16 IIJ 8:4 Address [4J 5:2214:1115:2128:17

1st 50 [7] 6:5 11:6 11 :25 21 :19 27:23 31:12 Analog

[1]10:7 [IJ 11:19 33:7 [1]31 :4

500 Addressed Analyses

2 [IJ 2:4 [1J 31:15 [2112:1921:10

2

51 Addressing Annex

[1]3:25 [IJ 10:24 [7] 11:411:611:10 11:1411:2312:2 [1]10:13 51.309 ADELIA 16:14

20 [IJ 10:3 [IJ 2:10 Annual

[2] 7:24 23: 14 525 AdJusbnent 11]13:8 20.11.48 [IJ 2:4 [1]27:2 Answer [6) 1:4 3:3 3:15 7:16 8:21 559 Admlnlstrallve [IJ 32:22

2003 [1]28:19 (1)7:19 Anyway [10] 1;12 3:7 9:25 10;10 10:1110:12 5:53 Administrator [IJ 7:8 1':322:2022:2323;4 [211:133:10 14J 14:22 15:2524:1931:17 Appear 2003-2007

II] 26:19 5th Admitted (1)38:6

13]10:1010:1211:3 (7] 2:22 4:22 5:618:1318:1918:2519: Applicable 20t8 I l2J 19:15 19:20 IIJ 21:12 6 Adopt AppllcaUon 2040 8 [8] 1:43:23:143:21 5:11 8:15 29:22 11]11 :21 [1]11:19 [2] 8:5 14:10 34:834:25 Apply 2084 8:39 Adopted [2] 16:4 25:13 (1] 21:14

[2134:24 35:4 l2J 22:1 22:2 Appointed 21 AdopUon [IJ 4:8 [6] 34:4 34:6 34:19 34:20 34:21 7 l2J 34:15 34:21 ApproVed 22

7 Adopts 11]11:3 [1]13:21

[2] 2:16 8:9 (3)33:23 34:18 34:21 Area 228 Advertised

[2] 1:2236:18 70 [1J 8:2 [IJ 14:19

[1]11:19 Areas 23 Affected l2J 21:6 21:20

IIJ 23:. 8 [3] 13:4 13:15 14:20 Arizona 24 Afflnlly [IJ 32:24

IIJ 23:. 87102 [IJ 9:11 Arrive 28 [4] 1:141:232:42:11 Agency [1]4:12 [1]22:12 8a r2i 17:10 29:13

KATHY TOWNSEND COURT REPORTERS (505) 243·5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS Index Page 2

Art (3]17:1619:1020:12 [11 18:9 12121:821:13

[1]4:1 Brian Chapter Conduct

ARTHUR [1]17:25 [1]14:9 11]4:4

(1]2:3 Brief Chino Conducted

Aspect [1]33:21 [II 15:15 (1]21 :10

(1) 12:2 Brings Circumstances Consensus

Assess [1] 24:24 [1]15:15 [1]13:15

[I] 28:15 Brown Cited Consider

Assessments [I] 28:15 (1)22:21 [1]34:14

[1]11:24 Bunch City Considered

Assign [1] 30:8 18] 2:10 6:20 7:21 13:526:2431:23 (1)9:19

(2J 13:25 26:13 Burden City's Considering

Assigned [II 24:5 121 15:417:22 (1]3C:14

[1]6:20 Bureau Clty-<:ounty Consisting

Assistant 13] 7:1 22:4 31:4 (1132:21 (1)12:14

[1]2:10 Burning Civic Constraints

Association [2] 34:4 34:19 121 1:132:11 [1]27:11

[2] 12:15 29:12 BUn Class Construct

Atmosphere [1]2:13 [I] 21:6 (1)25:8

[1]9:13 Buy Clause Contained

Attorney [1]16:24 [1]22:13 (3) 10:12 10:24 12:25

[8] 2:3 2:10 4:1 36:1036:13 Buying Clean Contains

August [II 30:5 (3) 3:22 10:2030:6 (3) 12:7 16:4 17:1

[2] 10:8 10:11 C

Close Continent

Authority [1]6:19 [1]21:17

[2] 8:15 25:8 C Closed Contingencies

Authorized [I] 2:1 (2] 35:3 35:4 11]27:23

[2] 4:4 4:7 Call Closes Contingency

Available [1] 26:2 11] 33:20 [1]22:16

(10] 10:1510:18 11:2115:1215:1716: California ClOUd Continuation

14 16:18 19:1920:1326:20 13]25:2526:1626:18 [1]26:15 14]29:1634:334:5 34:7

Avenue Cannot Coal Continue

11]2:4 [1]6:15 (3) 9:7 17:1320:6 (3) 17:729:532:18

B Canyon Coal·flred Continued

13]10:17 10:21 13:5 [3]17:1320:620:6 [1]10:2

B Cap Code Contrast

(3) 1:142:213:6 (1]13:13 13] 3:24 7:19 10:4 [1117:14

Backslop Caps Codified Contribute

[8] 1:53:43:167:188:1913:1624:5 [1]11:13 [II 3:24 [1]9:17

35:2 Carbon Collaboration Control

Based [1] 9:2 11] 29:2 (12) 1:1 7:3 7:20 8:14 8:15 11:1 11:8

[4] 4:22 5:20 14:21 17:9 Care Combine 11:914:2219:2322:231:3

Basic [II 31 :22 II] 9:12 Controls

[2] 10:5 14:4 Careful Combines [3] 12:$14:17 19:25

Basis [I] 26:6 [I] 9:9 Conversation

[1]16:16 Case Combustion [2] 17:9 24:14

Became [5] 14:23 19:16 21:11 23:1 26:18 [1]9:7 Cooperation

[2] 10:710:11 Cases Coming (1]21:4

Become (1)11:25 [I] 34:23 Coordinating

[2] 4;23 13:24 CATALINA Comments [1]31:25

Becomes [112:13 [2] 17:21 16:18 Coordination

(1]14:7 Category Commission [1]15:25

Began (2] 5:19 15:10 [5] 10:18 10:21 10:2311:136:20 Copper

[119:25 Caused Commission's [1]17:15

Begin [1]21:19 131 11:411:711:12 Copy

(7) 5:8 6:22 6:25 22:4 28:13 29:15 33: Causing Committee [1]8:8

20 121 9:1 9:16 [3]1:143:632:1 Correct

Beginning CCR Companion [I) 20:6 20:9 23:23 23:25 24:17

[1]17:20 [2] 1:2236:18 II] 9:25 Counsel

Benchmark Cease Compliance [2J 36:10 36:13

PJ 20:20 20:22 20:25 [I] 27:24 [8] 16:4 29:25 30:2 30:6 30:7 County

Bernalillo Ceased Complies [12] 1:11:14 3:7 3:9 3:12 8:13 8:1613:

[8] 3:7 3:12 8:16 13:3 17:1925:1 25:14 [1]15:16 [I] 14:2 3 17:1925:1 25:1936:3

32:2536:3 Cement Comply County's

Best [8] 13:4 15:315:18 17:3 17:2519:18 [2] 10:15 14:15 (1]25:14

[2] 11:2119:19 Center Compounds CountylClty

Betty [3] 3:9 12:2322:15 [119:19 [1]32:25

[2] 2:7 4:11 Certain Concept Couple

Big [1]23:2 [1]30:6 [1]6:25

[1)25:22 Certificate Concern Course

Board [3]2:19 14:314:7 [I] 32:17 12124:9 32:25

[41] 1:1 1:42:53:23:123:123:133:14 Certify Concerned Court

3:153:21 4:24:34:44:74:124:194: [1]12:10 [I) 1:22 4:14 4:15 4:20 6:2

21 4:245:11 6:76:97:77:148:1414: 11] 36:5 Concerning CUlprtts Chair 22 19:5 19:13 22:2 22:10 23:24 25:16 121 11 :71 1:6 1219:1 9:16

27:17 27:21 30:1630:2233:333:733: [I] 4;10

9'3~:14 33:23 33:25 34:7 34:9 34:10 Chang Concludes Current

34:11 34:1334:1434:1834:20 13]2:7 4:11 32:23 [I] 19:3 [2] 19:9 19:9

Boilers Changes Conditions

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS Index Page 3

D [1J 5:11 [2) 36:1136:1' [2) 36:19 36:20

Document Employee Explained

D [1J 26:3 [1J 36:13 [2) 25:17 26:25

[11 2:17 Documents Empowered Express

Daley [3J 12:3 12:1922:6 [1J 8:14 I1J 30:13

[11 17:23 Done End

Dan [2) 19:17 28:3 [3J 22:2122:2323:9 F

[4J 7:8 7:14 23:1 27:18 Door Energy Fact

Dan's [1)5:25 [1J 15:13 11]22:24

11131 :4 Doug Ensure Fall

DANIEL 11]17:23 1'132:15 (1)27:22

[3J 2:12 2:18 7:10 Down Ensuring Fall·back

Data [2J 23;8 27:13 Ii] 14:2 11127:22

[4J 20:2524:924:17 24:20 Dr Entlre Fashion

Date [3J 2:7 4:11 32:23 [1)24:14 11128:8

[1lJ 22:1322:1422:21 22:2422:2423:5 Drying Entltles Favor

23:823:10 [1120:2 [4121:423:1824:1625:21 [4) 5:14 30:24 33:1133:17

Dates Due Entltled Feasible

[1122:22 [3113:1915:1215:13 [2) 8:18 35:1 I1J 19:23

December Duly Entity Federal

[4] 22:16 22:20 22:23 23:4 13] 7:11 31:836:7 [118:14 [14] 3:22 3:22 3:24 3:24 10:4 10:4 10:5

Decides During Environment 10:710:1010:1210:1511:321:2330:5

1'132:2 [1J 4:24 [113':3 Fell

Decision Duties Environmental [1132:1

[3] 4:21 5:4 13:16 [2) 27:25 28:2 [7] 3:14 3:19 5:10 6:21 7:22 17:1029: File

Declvlews 12 [2) 23:12 23:19

[1121:8 E EPA Finally Declining E I1J 25:18 [1J 5:16

[1J 11:13 [4)2:1 2:1 2:17 2:21 Equal Financially Deducted E....all [1115:20 [1136:14 m16:1026:18 I1J 8:8 EqUipment Fired

Demonstrate Early [2) 28:5 28:17 [2) 17:13 20:8

[1]11:15 [2) 10:22 15:14 Essentlally Firm

Demonstrates Earmark [1lJ 12:21 14:2315:2 15:11 16:1525:11 [3] 4:15 4:17 4:18

[11 '

6:4 [1J 26:23 26:1531:16 First

Department East Establish tBJ 7:1111:10 18:616:1516:1621:15

(12] 3:14 3:20 5:10 6:21 7:22 7:23 14:4 [1113:5 [1J 16:12 22:1125:431:8

14:815:2423:2030:2533:12 Echoing Established Flrlt~ome Department's [1J 25:11 [3J 10:22 12:16 16:13 [1J 18:15

[1131:4 Economically Establishes Flrst-serve Describes [1J11:10

[11 '3:'5 [1J 19:23 Evening [1118:16

Etrect Five

Descriptor [1113:21 [13] 3:14:54:9 4:14 5:8 5:21 7:6 7:13 [8] 4:8 9:19:1823:724:2231:2332:23

[1J21:9 10:233:2034:3 34:11 34:23

Effectlve Evklence 34:21

Detailed (I) 10:710:1119:12 22:13 22:14 Floor

[1]17:2 Ernclent [31 4.~0 4:22 5:6 (7) 3:8 15:1 15:118:318:4 18:15 18:24

Details [1J 9:18 ExacUy Follow

[11 12:3 Either I1J 18:10 [2) 4:19 12:9

Determine Exceed Following

[2) 13:11 24:10 [1J 27:25 [1J 12:1 Electrical Exceeded [1J 34:14

Determines [1J 20:12 Follows

(1)34:10 Electronic [3] 12:613:12 13:14 [2) 7:12 31:9

Develop [1J 8:6

Exceeds Foregoing

[1111:1 Element [1116:5 [2) 36:5 36:6

Developed (7) 9:23 10:2 14:1022:6 26:4 34:8 34: Exoept Form

[I) 12:12 14:21 29:1831:1531:25 22 [3] 22:18 22:20 22:23 [2) 9:10 17:7

Developing Elemental Excess Format

[3112:1819:1831:24 [1J 9:2 [3J 18:8 16:917:5 [1112:22

Different Elements Excuse Formed

[I] 19:1523:826:1231:1931 :19 [2:112:2427:8 [11 7:8 [1J 9:5

Dioxide Ellmlnatlng Exempt Forth

[4311:51:53:33:43:153:17 7:17 7:18 [1]19:10 [1J 27:3 [3J 12:313:1 21:21

8:18 8:19 8:24 8:25 9:5 9:5 9:8 11:2 11: Emission Exhibit Forward

611:811:811:1111:1311:1711:18

[2) 19:21 20:4 [1lJ 8:11 8:22 10:13 18:5 18:15 22:12 [4J 30:25 33:8 33:12 33:18 11:2512:512:812:913:213:1113:17 Exhibits

14:1115:415:515:1116:717:1217: Emissions [B] 2:22 5:6 8:4 8:918:13 18:21 18:23 Four

1619:1020:320:1434:1635:1 35:2 (39) 1:53:33:167:17 8:18 8:24 9:611: 19:1 [2)11:1534:19

Discuss 211:611:1111:1311:1711:1811:20 Exist Francisco

[2J 12:24 18:1 12:113:213:813:913:1114:1815:2

[1127:24 [2) 17:11 25:18

Discussions, 15:8 15:10 15:12 15:17 16:1718:19 16: Frey 21 17:6 17:12 17:17 20:15 24:2 24:9 Exlstlng [3] 17:925:1826:25 [11 4:24 25:325:1031:1831:2135:1 [IJ 14:2415:7 15:8 16:20 17:19 Front Distributed Emit Expansion I1J 5:25 [1J 15:17 1

'

114:12 I1J 16:21 Fumll Distribution Emitted Expect [2) 9:22 28:2 [1J 15:22 [3] 9:8 16:8 16:9 [1J 20:18 FuncUon DIvision Emphasize Expected (1)31:16 ["12:93:195:95:105:156:207:21 [1J 12:11 [4117:18 18:9 34:11 34:14 Funded 12:21 13:828:11 30:19 Employed Expires DIVision's I1J 29:19

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS Index Page 4

Funding Helpful 13] 8:3 14:4 24:4 Legelly

[6] 29:3 29:4 29:6 29:11 29:1330:6 (1)8:24 Inllllli (1) 8: 2

Furthermore Hereby 1'1 '

4:20 Legilletion

[1]16:20 [2J 18:24 36:5 Inlert 11 ) 2 1 : 23

Future Hereto [2J 18:8 18:7 LEHNER

[1123:5 [1]36:14 Inltalletlonl [1 ] 2 : 1 3

G Herself [1120:14 Let

[1)6:3 Instance 111 30: 9

G Hilbert [3J 19:17 26:15 29:11 Level

[1)2:3 [1]7:4 Intended [1 ) 1 3: 24

Gasoline Himself [2J 11:14 24:1 Levell

1119:7 (1)6:3 Interested (2) 1 5 : 8 19: 21

GCC Hold (4]5:17 33:1533:17 36:14 Llcenae

(5) 13:415:315:1817:317:25 (1)34:11 Invenb3ry [1 ] 36: 1 8

Gear Holding III 1:53:43:167:17 8:19 23:20 24:9 L1g h t

[2J 30:3 30:4 (1)18:1 34:17 35:1 (1) 9: 16

General Hopefully Involved Likely

[1]16:1 [1]24:4 (1)24:16 [ 1 I 1 5: 9

Generating Hydrated Irrelevant Limit

[1120:12 [2J 9:3 9:4 [2J 5:3 5:5 [ 2] 5: 2 5: 22

Given Issue LI n e

110] 5:3 6:13 8:10 14:9 14:12 25:19 25: I (1)32:8 ['] 18: 5 23: 1 4 23: 14

2026:1427:936:9 Identification Issued LI n e s

Goal (1)11:24 [2] 10:23 18:15 [ 1 ) 22 : 12

14111:17 21:12 21:14 21:16 Identified Items Liquid

Government [1126:11 (1)34:13 [ 2] 1 3 : 6 1 7 : 22

13] 3:9 28:25 30:5 identifies Itself Listed

Governors [1]26:5 [2J 16:12 30:14 (2) 26: 8 27: 2

[1]32:2 Identify J Local

Governors' [5] 8:3 14:24 14:25 19:18 19:23 [1 ) 8: 3

[2J 12:1529:12 Imagine J Located

Grand [1]32:4 [3J 2:12 2:18 7:10 11·) 5: 24

(2] 10:17 10:21 Immediately July Look

Great [2J 5:24 33:19 (1)10:7 [ 1) 28: 1 4

[2J 9:11 30:9 Impact June Looking

Greater [1)17:18 [3] 10:10 10:12 11:3 (1) 31 : 24

(1)11:20 Impairing Jurisdiction Looks

Group [I] 21:19 [1] 28:8 [ 1 ) 27: 1 9

[4)27:1930:2333:1033:15 Impairment Growing [2J 9:2020:25 K M

[1)9:13 Implement Karen M Guess [2J 14:17 17:5 [2J 2:6 4:10 [ 1 ) 36: 4

13]19:2221:224:24 Implementation Kathy Ma'am

H (10] 9:239:2422:527:6 27:7 27:14 29: [2J 1:22 4:15 [1 ] 31 : 1 0

2330:1 31:1433:23 KEARNY Machine

H Implemented (:I] 2:10 16:18 23:1 [1 ) 36: 8

(1)<:21 ['1 '2:4 Keep Mall

Hand Important [1)19:21 11] 8: 7

[1]31:6 [2J 4:21 14:13 Keeplng Main

Hang Improve [1)17:2 (1) 9: 1

[1]25:23 [ZJ 21:2 21:6 Key M aJ 0 r

Happy Improved [2J 10:25 11:7 [ '] 1 2 : 2 1 9: 1 1 2 0: 1 1

[1132:22 [1]28:9 Kilns Man

Haze Improvements [2J 20:3 20:6 [ 2) 2 1 : 1 7 2 1 : 1 9

[23J 3:22 3:23 8:25 9:1 9:189:189:23 [1]21:11 Kind Man-caused

10:110:1610:2412:1612:2013:1414: Includes lIJ 28:4 28:5 31:4 31:11 31:17 [ 1 I 2 1 : 19

1020:2126:426:427:627:1032:834: [1]18:24 Kinds Managed 834:1534:22 Including [1]19:15 [ 1] 1 5: 24 Health [2J 3:23 9:6 Known Manager lIJ 3:14 3:20 5:10 6:217:22 Incorporate [2J 3:12 3:17 (2) 1 7 : 22 31 : 3 Hear [ZJ 33:22 34:6 Market [3J 30:22 33:10 33:15 Incorporation L [ 2) 1 2 : 4 1 2: 10 Heard [2J 34:17 34:19 Label Marquette [1]5:19 Independent (1)18:14 [ 1 ) 2: 4 Hearing [1]29:4 Language Mary [39] 1:2 2:2 3:2 3:6 3:11 4:44:94:17 4: Indian [1] 22:19 11 ] 7: 3 234:245:1 5:25:45:86:186:197:67: [1]12:15 137:158:17 9:2517:20 18:12 19:13 Large Materials

25:1633:2033:21 33:2534:1 34:234: Indicated [2J 9:411:2 [ 1 1 8: 8

3 34:5 34:7 ~25 35:4 36:5 36:6 36:9 [1]28:22 Last Matter

36:12 Individual [1] 7:24 (1) 8 : 1 1

Hearings [1]30:24 Late McGill

(:I] 4:19 22:5 34:2 Individuals [1)34: 10 [1 ] 1 7 : 25

Held [11 8:7 Law Mean

[1]3:6 Industrial [2J 2:3 4:20 [ 1 ) 27: 3

Hello [1]9:8 Left Means

[1]31:2 Industrtes [1J 18:1 [1] 18: 6

Help [1]20:19 Legal Measure

1121 t:511:17 Information [1(8:10 11] 21 : 7

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS Index Page 5

Measurements [4]21:321:2028:1028:22 [1]18:1 [2] 13:1029:22

[1]21:5 Natural omcer Particles

Mechanisms [1]21:13 [8] 2:2 5:4 7:E 7:1318:1219:13 25:16 [S] 9:2 9:3 9:3 9:5 9:11 9:15

[1]11:25 NEAL 36:4 Particular

Meet [1]2:13 Olona [2] 13:14 22:25 26:24

[2] 3:2113:23 Necessary [15] 2:3 3:1 4:1 7:818:2119:2 19:5 22: Parties

MeeUng [1128:6 1027:1630:1530:2231;5 31:10 33:2 [2] 36:11 36:14

[2] 4:25 34:12 34:14 Need 33:6 Partnership

Member [4]16:2117:422:17 28:12 Once [2] 12:1332:3

[8] 4:2 4:3 19:1422:1023:2425:17 27: Needed [4]13:21 14:614:1316:16 Parts

2130:17 13]11:814:17 27:3 One [1]11:7

Members Needs [141':'32:'19:'39:15'0:'410:25 Party

(13J 2:5 4:84:94:126:77:1 7:77:14 [1J 18:23 18:320:2322:1222:1223:6 24=24 25:

2534:15 11] 5:17

19:527:1630:1532:1033:2 NegaUve Paul

Message [1J 17:18 Opacity [2] 2:7 4:11

[1]18:1 New [1]20:21 Pay

Met [43] 1:141:232:42:113:105:12 7:17: Open [1]4:18

[3J 13:2024:11 24:12 198:48:148:188:17 10:15 12:1112: [2] 34:4 34:19 PenalUes

Mexico 2214:2516:1116:1216:1216:1416: Opened [1J 16:6

[17] 1:14 1:232:42:113:107:17:198: 17 16:18 16:22 24:5 24:25 25:6 25:15 [1]23:6

48:158:16 10:15 12:22 16:12 28:19 25:1925:2026:526:1326:2428:128: Operate Penalty

32:25 33:22 36:1 1628:1928:2532:2533:2234:1834: [1J 16:24 [2] 16:5 16:7

Mexico's 17 34:22 34:25 36:1 Operated People

11]28:25 Newspaper [1]21:2 13] 5:20 5:21 6:17

Michele [1]8:3 OperaUon Per

[2] 1:227:936:4 Next [1]19:20 (5) 9:22 13:2 15:4 15:6 16:7

Micron [4J 5:13 16:10 22:6 27:13 OperaUons Percent

[1J9:15 Nine I1J 15:16 [1]11:19

Microns [1J10:18 Opinions Period

[1]9:13 Nitrates 11]30:14 [3J 14:1225:1226:19

Milestone [1]9:2 Opponent Periods

(I] 11:23 13:12 13:13 13:2023:2224: NMAC [1J 33:11 [1]28:12

23 [8] 1;5 3:3 3:157:167:188:21 Opponents Pennlt

MII"stone-related Non [1J 5:15 [2] 24:2 25:9

11]11:23 [1]15:18 Opportunity Person

Milestones Non-uUllty [4]5:135:165:17 6:10 [10] 5:17 5:22 6:86:116:136:1414:1

[11] 11:1111:1411:1511:1711:1911: 13]15:1817:1420:17 OpUon 33:633:1533:18

2212:112:624:1024:1232:19 None [2] 10:18 16:18 Personally

Mines [4]30:2033:933:1433:19 Order [2] 17:22 36:7

[1]15:16 Northwest III 3:214:175:199:2110:1516:24 Pertaining

Minutes (4J 1:131:23 2:4 2:11 Oregon [1]9:22

[1]7:25 NOTARY [1]32:24 Pertains

Missed [1J 36:18 Organic [1]8:23

[1]23:22 Note [1J 9:2 Phone

Modlncatlons III 4:6 4:1214:1316:1617:3 OrganlzaUon [1J 18:1

[lJ 10:11 Noted [11]6:56:6 12:14 28:2 29:18 32:6 32: Picture

Modified [1]27:1 1232:1232:1433:1033:16 [1]23:17

[1]23:7 Nothing OrganlzaUons Piece

Molecules (1]23:22 [1]32:7 [1]30:14

13]9:109:129:12 NoUce Original Place

Moment (3J 8:1110:12 11:3 [1]23:10 [1] 28:5

[1J 25:23 Notices otherwise Placed

Monetary [11 8:2 [1]17:7 [2] 8:3 15:23

11]16:7 Notifications Overall Plan

Money [2] 8:7 8:8 [2] 15:1326:17 [7] 9:23 9:24 22:5 27:7 29:8 31:14 33:

[lJ 30:9 November Own 23

Monitoring [2] 1:12 3:734:13 [2] 6:16 28:1430:4 Planning

(10] 17:2 17:5 17:8 21:1 28:528:828: Number [2] 32:5 32:7

1326:1628:2329:5 [IJ 5:218:118:218:229:616:518:15 P Plans

Monthly 26:2336:18 P

(3J 27:14 29:23 30:1

[1J 34:12 Numbers Plant

Most [5] 8:4 26:6 26:7 26:7 26:1126:13 [2] 2:1 2:1 (11] 13:4 13:6 15:3 15:5 15:19 15:19

(3)9:16 12:9 17:11 P.m. 17:4 17:4 17:23 17:25 19:17

Mostly 0 [2] 1:13 3:10 34:24 Plants

[1]17:14 Oath Page [1]20:13

MoUons [2] 7:11 31:8

[7] 2:17 2:21 18:522:1223:1328:826: Plaza

9 [2] 1:132:11

11]5:7 ObJecUon Park

Mountain

Plus

[2] 18:21 18:23 [2] 21:3 28:9 28:22 [2] 4:8 15:20

[1J 10:19 ObJecUons

Must

Parks PM

[1]5:7 [2] 21:2028:10 [1] 35:4

[8J 4:216:36:46:1212:914:3 Obtain Part Point

N [2] 4:16 16:18 (33J 3:17 3:21 3:254:235:126:1810:3 [1]19:11

OCcur 12:1112:2512:2513:917:17 21:15 25: Pollutants

N [1]21:13 825:928:1528:2430:833:1933:22 [1]21 :19

[2] 2:12:17 OCcurrtng 33:2434:1 34:234:434:634:1634:17 Pool

Name [1]21 :1 34:1834:1934:2034:21 34:24 35:1 [2] 16:12 25:13 25:20

(4J 4:1 6:47:1431:1 OCtober ParUclpate Pardons

National [1]9:25 [1]27:15 [1124:8

OIIerlng ParUclpaUng

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS Index Page 6

Positions [IJ 14:18 [1]17:15 [1]12:14

[1]4:7 Purpose Reg Request

Posting (&) 8:17 22:25 26:7 26:12 26:14 26:23 [1]3:18 ['1 '6:22

[11 8:10 Purposes Regarding ReqUire

Pot [1]28:14 (15] 3:2 3:13 5:410:111:512:313:16 (1)23:1

(1)25:2 Pursuant 30:1833:733:21 34:1 34:3 34:5 34:18 Required

Pre-trigger [1]12:16 34:25 lSI 13:7 13:2525:925:1127:6

(1)25:12 Put Region ReqUirements

Preparing (2] 22:22 29:23 lSI 10:1913:12 18:1624:2026:1526: [16] 1:5 3:4 3:16 3:21 7:17 8:10 6:19 9:

11] 32:11 17 2210:510:9 10:1612:8 12:20 13:113:

Present Q Regional 2017:317:17 35:2

(4)4:95:116:1134:10 Quality 13013:223:236:259:1 9:17 9:18 9:23 Reserve

Presentation [21J 1:1 2:93:195:96:207:1 7:21 7:23 10:110:1610:2412:1312:1812:2013: [1125:3

(2] 7:15 7:24 8:138:158:1812:2013:614:2122:1 1414:1020:2126:426:427:6 27:10 Responsibility 26:1 32:532:632:632:832:17 32:17

Presently 22:426:728:11 29:1 31:433:23 34:834:1534:22 [3] 31:21 32:1532:18

(114:7 Questioned Register Responsible

Pretty (2] 7:12 31:9 [1] 8:4 10:710:1010:1211:323:1925: (2] 12:1814:2

(2] 27:12 29:15 Questions 4 Rest

Prlinarlly [14J 6:106:11 6:12 19:4 19:819:822:8 Registered [1]24:6

(2] 12:12 21:3 22:11 27:1630:1530:1831:1232:22 11]14:8 Results

Problem 33:2 Registration [1]16:21

I2]22:1432:17 Quickly [1J 25:2 Retrolll

Problems [1127:20 RegUlar (2] 11:2119:19

11]29:16 Quorum (2] 8:7 34:12 Revenue

Proceed 11]34:9 Regular-mall 11]29:14

11]31 :10 R [1]8:7 Review

Proceedings R Regulated [IJ 22:7

[3] 1:11 8:28:12 [4]12:823:17 24:16 25:7 Rigorous

Process [1] 2:1 RegUlation 11]13:20

[4121:1523:2125:228:25 Raise [401':43:33:'53:'85:'25:148:'87: RIta

Produce [1]31:5 168:188:208:21 8:239:21 12:712:9 [3] 7:2 31:2 31:7

(2] 13:1 17:16 Range 12:1212:17 12:22 13:416:317:117: Road

Product [IJ 9:16 2117:2417:2518:219:1820:2323:6 (2] 23:8 27:14

(119:6 Re 23:2224:727:430:1930:2433:11 33: Rocky

Program [111:3 17 33:20 34:1 34:1834:2434:25 11]10:19

[28] 1:63:53:17 7:18 8:20 11:5 11:9 Real Regulations Room

12:412:1013:1113:1713:1813:1913: (1)26:12 [1] 3:233:243:258:1610:527:1029: [3] 1:14 2:11 3:8

2214:314:617:624:624:2126:17 26: Reality 22 Rule

21 28:1228:1329:1730:11 32:21 32: [1129:20 Related [1]5:6

21 32:2235:3 Really [7] 6:12 8:811:2312:1934:134:1536: Rules

Programs [7] 19:18 20:8 24:3 24:5 25:19 26:22 11 [114:19

[1)29:1 29:8 Relates Running Progress Reason [1)8:25 [1]28:23

[2] 11:1611:24 [3] 23:3 27:24 32:2 Relative

Proper Reasonable [1]36:13 S

1118:11 (2] 11:1620:13 Relatively S Proponents Receive [1]9:4

13]5:'35,'530:23 [1]15:19 Relies (2] 2:1 2:21

Proposal Received 11]10:16 San

[IJ 1:43:23:135:11 33:733:21 34:4 [1]17:21 Remaining (2] 17:1025:18

34:534:25 Recently (1)26:20 Satlsfted

Proposals [IJ 15:18 Remember [118:10

11]34:15 Recommendations [1]4:21 Salls1y

Propose III 10:2410:2511:511:711:12 Renewable [1]12:20

[118:17 Record [1]15:13 Scattering

Proposed [IJ 4:6 4:12 4:24 5:7 6:4 8:117:2 18:13 Repeats [119:16

(18) 5:14 7:16 8:218:239:2110:112:7 36:9 11]5:3 SchedUled

12:1112:2512:2517:2117:2417:24 Recorded Repetitious [1]10:2

18:318:1430:1930:2433:1234:22 [1136:8 [1)5:5 Second

Proposing Records Replacement [3] 12:220:22 23:13

[2J 3:20 34:7 (2] 12:2322:15 (1) 28:1 Secondly

Protection Red~lne Report [1]18:8

(2] 17:10 29:13 [11'8:8 [1] 10:23 13:7 14:21 14:24 14:2524:1 Section

Provide Reduce 25:10 [27] 3:23 7:3 7:2110:110:310:610:9

(4] 11:20 11:2324:831:19 [4] 11:111:511:18 20:14 Reported 10:1410:1613:913:1016:317:122:2

Provided Reducible (2] 1:22 13:9 22:522:21 23:6 23:9 23:14 24:1 24:8

(4] 10:20 14:7 14:9 29:13 [3] 15:10 15:1115:21 Reporter 24:2126:429:1831:334:834:22

Provides Reducing (2] 4:14 6:2 Sections

['1'4:'6 [IJ 11:16 REPORTER'S [I) 13:21 18:722:2323:223:9

Sector Providing, Reduction 1'12:19 11]17:14 [2J 7:1514:4 [IJ 20:11 Reporters See Provisions Reductions [1]1:22 [2J 17:15 25:24 13]11 :23 16:527:. III 11:20 15:1215:1417:1217:15 20: Reporting Sent Public 18 [3] 4:15 17:2 23:21

[BJ 1:2 3:1 3:64:98:1 22:730:1736:18 Referred Represent 13]8:6 17:23 17:24

Published 11]11:4 [1J 6:5 Separate

[IJ 10:6 Refers Representative [1]33:21

Purchase 11]10:3 [1]14:1 Serve

Refineries Representatives (2] 16:1631:17

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS Index Page 7

Service 24:2525:725:1525:1925:2026:526: 143J 1:5 1:5 3:3 3:4 3:15 3:16 7:17 7:18 [3]1:224:15

[3]21:328:928:23 13 8:18 8:19 8:24 8:25 9:5 9:5 9:8 11:2 11: Track

Set Source's 511:811:811:1111:1311:1811:18 [3]31:1831:21

[3] 14:1421:2232:19 [3]14:14 15:2 16:8 11:2512:512:812:813:2 13:1113:17 Tracked 14:1115:415:515:1118:717:1217: Set-aside Sources 1619:1020:320:1434:1635:1 35:2 (1)32:19

[4]16:1316:17 16:23 26:5 (32) 9:69:9 11:2 11:22 12:913:113:3 Supervlser Tracking

Sets 13;713:2313:2414:1914:2014:2414: 11114:2215:2415:2524:1931:17

[1]12:25 2515:9 15:14 15:18 18:15 18:18 18:25 11]7:20 Trading 17:317:1919:11 19:1519:2420:11 20: Sworn

Setting 1923:1524:1324:1526:2429:5 [10] 4:22 4:23 4:25 8:1 6:36:147:11 [1B] 1:6 3:5 3:17 7:18 8:20 12:412:10

13:17 13:18 13:19 13:22 14:3 14:616: (1)12:3 Special 31:631:836:7 17 17:6 24:5 34:17 35:2 Seven [1]27:9 Syslllm Transcript [1]4:6 Specltlc [BJ 14:22 15:13 15:24 15:2521:121:4

Several 13]11:1022:1822:24 24:1928:9 28:23 [S] 1:11 4:164:17 4:18 36:7

[1]14:15 Specltles Transferring

Sheet T 11]18:2

11]5:24 11]16:3 Transformed

Shorthand Ss T [1]12:21

[1]36:8 11]36:2 (1)2:21 Transmitted

Show Starr Tab 11]24:18

11]21:10

[1]7:15 11]18:16 Transport

Side Stand Table [3]10:17 10:21

11]20:17

[3]15:1519:4 11]28:5 Treatment Stands Tailpipes 11113:815:515:1917:417:23 Sign [3]7:189:24 11]9:9 Tribal [3]5:2430:10 Start Talks [3]27:727:14 Sign-up

[1]5:24 11]25:1 11]23:5 Tribes Starting Technical 11112:1527:227:327:5 32:13 Signed

[3] 5:20 5:23

[1]23:13 11]12:19 Tried State Technologies [1]23:12 Slgnltlcant [28J 8:4 7:1 8:1 8:14 9:23 9:24 12:22

11]29:16 11]19:14 Triggered 18:422:122:122:422:522:1524:14 Technology 11113:1913:2214:6 23:23 24:7 Silverman 25:2026:1426:2427:6 28:18 28:25 29:

[23J 2:7 4:11 19:8 19:14 20:2 20:5 20:8 2329:2531:1 31:1431:21 32:2032:21 l8J 11:2219:919:10 19:12 19:1920:13 Triggering

20:1020:1620:2020:2421:1621:22 33:2236:1 Template 11]13:16

2:'1:2522:322:825:1425:17 25:22 25: States 11]12:21 Trouble

2526:327:1 29:20 [26] 3:20 10:4 10:8 10:10 10:18 13:10 Terms 11]27:19

Simply 13:1524:2226:1 26:2027:2529:21 29: 14]9:1920:21 20:25 21:8 True

11]32:13 2430:731 :19 31:1. 31:23 31:25 32:8 Testltled 11]36:9

SIP 32:732:1032:1232:1332:1832:23 [3]6:77:1231:9 Trujillo

[2DJ 9:2410:1 10:610:1410:1612:19 Stating Testify [12) 1:224:157:231:231:2 31:6 31:7

13:1414:1026:326:1627:1130:732: [1]22:16 110]5:145:155:165:185:205:21 5:22 31 :11 32:24 33:4 33:5 36:4

2032:2034:234:634:834:1834:20 Stationary 5:236:1 6:18 Try 34:22 [7J 11:211:1111:1611:1811:2213:1 Testimony [1]28:15 SIP-related 13:22 124]2:18 4:22 4:23 4:25 5:2 5:3 5:5 5:9 Trying [1]12:19 Step 6:28:128:1819:323:1428:2130:18 11]23:17 SIPs [4]30:2533:833:1233:18 30:2333:1033:1333:1533:1833:18 Tum

[4]10:1431:2432:932:11 Steve 36:6 36:8 36:9 [1]6:15 Sit 11]17:9 Themselves Turns

11]4:7 Stili (1)28:1 [1]19:18 Situation II] 23:10 Therefore Twellth

[1]27:23 Strategies [3]9:17 15:1817:17

11]1:23 Six [3] 7:3 7:20 11:1 Three Two

[1]24:22 Strategy [4]28:1127:1334:2 34:18 117] 4:8 9:13 9:15 10:14 11:6 13:3 16:6

Size [3]19:2331:3 Threshold 16:9 19:8 22:11 23:1523:1724:1324:

[3] 9:14 .:16 25:15 Street 11]13:23 1524:1527:1334:17

Small 11]1:23 Tijeras Two-rnlcron

[1]15:20 Strlke-out 11]13:5 11]9:15

Smelter [1]18:9 Timing Type

11]15:16 Stringent 11]11:24 [3] 19:20 19:24 20:1

Smelters [1]17:5 Title Types

11]17:15 Stuck 11110:3 [3] 10:14 16:6 20:18

Smokestacks 11]7:4 Today

[111.:11 Submit [10] 8:17 13:3 15:3 15:15 15:20 17:8 U

S02 [3] 26:1627:627:10 17:1119:2224:429,:6 U.S.

[1]25:3 Submitted Todays [3]17:1029:12 Soli [1]14:4 [3]7:158:12 Ultimate

[I) 9:3 Substantially Together [1]21:12 [3]22:2232:16 Someday 11]9:17 Ton Umshler

[1]27:15 Substitute [3]16:716:. 110] 2:8 4:10 19:7 22:10 22:1123:11

Someone 11]30:4 Tonight 23:24 24:12 24:24 27:1

11]6:5 Sue Under

Sorry [3]2:64:10 [3] 7:2 33:25 34:9 l8J 7:1113:8 18:16 24:2 25:7 25:11 27:

[3]9:2215:7 Sufficient Tonight's 1131:8

Sort 11]12:5 [1]8:2 Undergoes

[3]27:222.:18 Suite Tons [1]16:20

Source 11]2:4 l8J 13:2 15:4 15:5 16:10 17:18 25:15 United 26:1926:23 [33] 11:1111:1611:1813:2514:114:2 Sullale Total l8J 10:4 10:8 10:1032:6 32:7

14:5 14:7 14:8 14:11 14:14 14:16 15:1 1119:3.:49:109:119:19 [1]28:14 Unless

16:416:516:1116:1316:1716:2016: Sulfur Townsend [3]30:3 30:3

2216:2216:2316:2420:120:324:23 Unravels

KATHY TOWNSEND COURT REPORTERS (50S) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
[1]27:19

Up

[1 OJ 5:20 5:23 5:2416:17 21:22 23:6

24:2430:330:430:10

Utah

[1]32:24

Ulllllles

[1]17:13

Ullllty

[1]15:16

v

Vacancies

[1]4:6

Valley

[1]26:15

Value

[2J 15:3 15:5

Various

(;]6:7

Vehicle

[1]9:9

Version

[1]26:9

Vice

[1]4:10

Vlce~hair

[1]4:10

Viewpoint

[1130:13

Visibility

(12] 9:20 10:17 10:21 20:2521:521:7

21:821 :13 21:20 28:12 28:14 26:17

Voluntary

[1]12:4

W

W

[1]2:10

Walked

[1J 21:17

Warren

[36] 2:12 2:18 6:23 6:24 7:10 7:13 7:14

18:2019:219:319:619:1320:520:9

20:1620:2421 :18 21 :2422:322:1923:

323:2424:17 25:6 25:16 25:23 26:2

27:527:21 28:728:2029:930:1630:

1830:2030:21

Waste

~J 13:6 15:415:19 17:4 17:23

Water

[2J 9:12 9:12

WEB

(12] 13:17 13:1913:22 13:24 13:25 14:

314:614:1314:2414:2515:117:3

Wednesday

[1] 3:7

Week

[1] 22:6

Welcome

[1]6:25

Wentworth

[7] 2:6 4:10 27:18 27:21 28:428:1829:

7

Western

[13] 1:5 3:4 3:16 7:17 8:19 12:12 12:14

12:1513:1829:1132:232:1235:2

Whole

[2] 24:14 30:6

Wilderness

[1]21:20

Will

[62] 4:12 4:23 5:2 5:4 5:5 5:6 5:10 5:13

5:165:17 5:19 6:1 6:106:197:147:24

12:412:2413:713:913:1113:1513:

2113:2413:2514:814:1414:2114:23

14:2414:2516:1016:1516:17 17:417:

717:1217:1422:422:2524:1828:17

26:1930:2231:1631:1931:2032:933:

1033:1433:2034:2

TRANSCRIPT OF PROCEEDINGS

Wish

[2J 5:21 33:6

Wishes

[3] 6:116:1133:16

Wllness

[816:36:46:76:66:106:11 6:126:13

Witnesses

[3J 4:25 36:6 36:10

Word

[4]18:616:6 16:7 16:7

Wording

[1] 23:4

Worst

[119:19

WRAP

[25] 12:1312:1312:18 13:10 14:23 21:

1024:1827:1827:2328:329:729:8

29:1029:1329:2230:631:1331:2032:

1 32:1 32:9 32:10 32:11 32:20 32:21

WRAP's

(1]31:16

Written

[1]17:21

Wyoming

(1]32:24

x

x

[2J 2:17 2:21

Y

Year

[8J 11:19 13:213:1415:4 15:817:17

21:1227:13

Year's

[1]16:10

Years

[5] 4:2 7:24 10:22 14:1523:827:13

Index Page 8

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
36

1 STATE OF NEW MEXICO )

2 ) s s .

3 COUNTY OF BERNALILLO)

4 I, Michele M. Trujillo, the officer before whom the

5 foregoing hearing was taken, do hereby certify that the

6 witnesses whose testimony appear in the foregoing hearing

7 transcript were dUly sworn by me; that I personally

8 recorded the testimony by machine shorthand; that said

9 hearing is a true record of the testimony given by said

10 witnesses; that I am neither attorney nor counsel for,

11 nor related to or employed by any of the parties to the

12 action in which this hearing is taken, and that I am not

13

14

15

a relative or employee of any attorney or counsel

employed by the parties hereto or financially interested

in the action.

16

17

18

19

20

21

22

23

24

25

My Commission Expires:

CC

Ex

11/29/03

226

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NW, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS

KATHY TOWNSEND COURT REPORTERS (505) 243 5018 1

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

1 3

1 ALBUQUERQUEJBERNALILLO COUKTY

MR. OLONA: This is aPublic Hearing regarding Al R QUALITY CONTROL BOARD 1 2 PUBLIC HEARIIIG

3 2 the proposal that, if the Air Board adopts anew In Re: 3 Regulation, 20.11.46 NMAC, Sulfur Dioxide Inventory 4

PROPOSAL THAT. ] F THE Al R BOARD ADOPTS A NEW 4 Requirements; Western Backstop Sulfur Dioxide Trading • REGULATION, 20.11.46 IlKAC, "SULFUR DIOXlDE ~lSS]O.S

INVENTORY REQUJREt1EIfTS; WESTERN BACKSToP SULFUR 6 Program, the Air Board direct that Part 46 be • DIOXlDE TRADING PROGRAn," THE AIR BOARD DIRECT THAT PART 45 BE JNCQRPDRATED INTO THE NEW "DIeD 6 incorporated into the New Mexico State Implementation 7 STATE IPlPLE"EMTATION PLAI FOR AIR QUALITY

• 7 Plan for air quality.

• 8 This Public Hearing is being held on Wednesday,

,. 9 November 12th, 2003, in the Bernalillo County Committee

11 10 Room B, on the 10th floor of the Albuquerque/BernalillO

12 TRANSCRIPT OF PROCEEDINGS 11 County Government Center, in Albuquerque, New Mexico.

13 12 The time is now 6:40 p.m.

lIov..ber 12th, 2003

14 6:4Q p .•. 13 This is ahearing of the AlbuquerquefBernalilio

Dna C1v1c Plaz8, lIorthWeet

,. County C~1tt 14 County Air Quality Control Board, also known as the Air .. Ro~ S

Albuquerque, New Kex1co 87102

,. 16 Board or Board, regarding aproposal by the Albuquerque

17 16 Environmental Health Department that, if the Air Board

,. . 17 adopts anew regulation, 20.11.46 NMAC, entitled 'Sulfur

,. 18 Dioxide Emissions Inventory Requirements; Western

2. 19 Backstop Sulfur Dioxide Trading Program,' also called

21 20 Part 46, that the Board also direct that Part 46 be

22 21 incorporated as arevision to the New Mexico State

REPORTED BY: "ICHELE TRUJILLO, OCR 110. 22S

23 Kathy Town.end Court Reporter. 22 Implementation Plan for air quality, also known as the

110 Twelfth Street. Northweet

24 . Albuquerque, N8W "8x1co 87102 23 SIP.

2. 24 The Air Quality Division of the Albuquerque ••

26 of the Environmental Health Department states it is

2 4

1 APPEARANCES 1 proposing adding Part 46 to the SIP to meet requirements

2 of the Federal Clean Air Act and the federal Regional

2 Hearing Officer: 3 Haze Regulations, including Section 309. The regional

4 haze federal regulations are codified at 40 Code of

3 MR. ARTHUR G. OlONA 6 Federal Regulations, Part 51.

Attorney at law 6 My name is Art OIona. I'm an attorney, and I

4 500 Marquette Avenue, Northwest, Suite 525 7 have been authorized by the Air Board to conduct this

Albuquerque, New Mexico 87102 8 hearing. I note for the record that, although seven

6 9 members are authorized to sit on the Board, presently

Air Board Members: 10 only five members have been appointed, and there are two

6 11 vacancies.

MS. KAREN WENTWORTH 12 The members present at this meeting •• at this

7 MR. PAUL SilVERMAN 13 hearing tonight are Vice-Chairman Karen Wentworth, Board

DR BETTY CHANG 14 Member Sue Umshler, Board Member Betty Chang, Board

8 MS. SUE UMSHlER 16 Member Paul Silverman. If additional members of the

16 Board arrive, I will note their presence. 9 . For the Air Quality Division: 17 The court reporter this evening is Michele

18 Trujillo, from the Kathy Townsend court reporting firm.

10 MS. ADELIA W. KEARNY 19 If you wish to obtain atranscript of this hearing,

Assistant City Attorney 20 please order atranscript from that firm and pay for the

11 One Civic Plaza, Northwest, Room 4072 21 transcript.

Albuquerque, New Mexico 87102 22 Air Board hearings do not follow the rules of

12 23 evidence as used in courts. However, it is important to

MR. DANIEL J. WARREN 24 remember the Board must make its decision based on sworn

13 MS. CATALINA lEHNER 26 testimony and evidence submitted at this hearing and that

MK. NtAL ~u II -
TRANSCRIPT OF PROCEEDINGS

6 7'

1 the sworn testimony wm become apart of the hearing 1 DANIEL J. WARREN ,

2 record. 2 after having been first dU~ swom under oath, .

3 Discussions at the Air Board meeting are not 3 was questioned and testified as follows:

4 the same as swom testimony of witnesses at this hearing. 4 MR. WARREN: Mr. Hearing Officer, I'll be

6 At this hearing Iwilllim~ testimony that is irrelevant 6 providing brief testimony on this matter.

6 or repeats testimony already given. Iwill also rule on 6 Basical~, we ask, the Board adopts anew

7 whether the evidence or exhib~ may be admitted into the 7 regulation, 20.11.46 NMAC, that the Board direct Staff to

8 record and on any motions or objections made. 8 take all actions necessary to place the regulation into

9 We will begin this hearing this evening with 9 the State Implementation Plan for air qual~. This is

10 the testimony of the Air Qual~ Division of the 10 critical in order to satisfy the federal regional haze

11 Albuquerque Environmental Health Department The 11 requirements.

12 Division will present that proposal- the Division will 12 Ido have four exhib~ that Iwould like to

13 present its proposal that, the Air Board adopts Part 13 subm~ into the hearing record, and they are Exhib~ 1,

14 46, the Air Board should also require Part 46 to be 14 which is the proposed 20.11.46 NMAC Regulation; and

16 submitted as arevision to the SIP. 16 Exhib~ 2, 3and 4are the newspaper and New Mexico

16 Next, all other people at this hearing who want 16 Register notifications for this hearing.

17 to testify will have an opportun~ to testify in favor 17 This concludes my testimony. I'll ask, then,

18 of, against, or general~ regarding the Division's 18 ifthose exhib~ could be admitted.

19 proposal. If you wish to testify and have not signed up, 19 MR. OlONA: Any objection to Exhib~ 1through

20 please do so immediate~. The sign-up sheet is located 20 4?

21 at the table near the front of the room. 21 There being no objection, they will be so

22 Everyone who wishes to testify will be swom in 22 admitted.

23 by the court reporter before giving testimony. Each 23 (Exhib~ 1through 4admitted.)

24 sworn w~ness must ide~ himself or herself for the 24 MR. OlONA: Does any member of the Board have

26 record. Each witness must state his or her name, 26 any questions for Mr. Warren regarding the regulation?

6 8

1 address, if they represent someone or an organization, 1 Board Member Umshler.

2 and who that person or organization is. After each 2 MS. UMSHlER: For Exhib~ 1, does that include

3 w~ness has testified, the Air Board members and I may 3 the floor amendment that we just heard?

4 question the witness. 4 MR. WARREN: Actual~, does not, so that's

5 After the Air Board and Ihave had an 6 an excellent point. We would want to -I guess what we

6 opportun~ to ask questions of awitness, Iwill allow 6 could do is add, as an Exhib~ Number 5, that short

7 . any person present to ask the witness questions. The 7 proposed floor amendment

8 questions to the witness must be related to the testimony 8 MS. UMSHlER: Irecommend we do that.

9 just given by the witness. Aperson who is asking a 9 MR. OlONA: So, for the record, Mr. Warren, as

10 question does not have to be swom in, but aperson who 10 Exhib~ 5, you're referring to -

11 is asking questions cannot turn that question into his or 11 MR. WARREN: To Exhib~-

12 her own testimony. 12 MR. OlONA: To page -

13 Today, when there are no additional people who 13 MR. WARREN: Well, actually was Exhib~ 10

14 wish to testify at this Part 46 SIP hearing, Iwill close 14 in the prior hearing.

15 the hearing. 16 MR. OlONA: And adding the word "all" before

16 The Staff of the Air Quarrty Division of the 16 "means" and the word "of' after "sections"?

17 C~ ofAlbuquerque Environmental Health Department may 17 MR. WARREN: Yes, on page 3, line 39.

18 now begin. 18 MR. OlONA: Okay. Iwill adm~ Exhib~ 5into

19 Mr. Warren, state your name. 19 the record, which is the floor amendment

20 MR. WARREN: Okay. My name is Dan Warren, and 20 (Exhib~ 5admitted.)

21 I'm Supervisor for the Control Strategies Section of the 21 MR. OlONA: Thank you, Board Member Umshler.

22 Air Qual~ Division for the C~ ofAlbuquerque. 22 Any other questions for Mr. Warren?

23 MR. OlONA: Please raise your hand to be sworn. 23 Thank you, Mr. Warren.

24 24 Oh, wail. Sorry. Does any member of the

25 25 public have any questions for Mr. Warren regarding his

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

2
TRANSCRIPT OF PROCEEDINGS

•

1 STATE OF MEW "EXICO )

11

24 pre•• n~ .nd if the Air Boerd de~e~1n.. it'. net too l.te

20 in ~he evening, the Air 80erd 1. ezpected to hold it.

21 that the A1r Boerd edop~ the propo.ed new section 308

22 Reg10n.l Ha.e 8IP El ...nt.

2

3

4

•

•

7

•

•

,.

11

12

13

14

,.

,.

17

18

,.

2.

23

There being none, thank you, "r. WBrran.

Do•• eny ...ber wiah to addre•• the Board

rauarding the propo••l? Pl•••• _tap fOrw8rd and give

teatilllony.

There baing none, do•• any peraon wiah to

.ddr••• the Board B. an opponent, that ie, againat the

propos.' end wiah to give t ••t1.any to the Board? Pl••••

atep fo""ard.

group or orgenization wiah to give te.timony to the Board

thBt 1. neither in fBYOr or BgBinat the propoa.'? Pl••••

step forward and give t ••t1.any.

There being nona, eOB1n, tonight, eftsr thi.

hearing clo•••• the Air Board w11' he.r the cont1nuBt1on

01 thrB. h••ring. thBt begs" OCtober 8th, 2003: One, the

proposal thBt the Air Board .dopt ...na--nta to Part 21,

Opa" Burning; two. the propoe8' the~, if the Air Boerd

edop~. amendment. ~o Per~ 21, th.t amena--nt. to Pert 21

be 1ncorpor.ted 1n~o ~he 8IP; end three, the propo••l

Al.o, ~on1ght, 1f e quorua of the Air Board 1.

2

3

4

•

•

7

•

•

,.

11

12

13

14

",.

17

,.

,.

2.

21

22

23

24

2.

Ie•.

eoulTY OF BERNALILLO)

I, "1ch.le n. Trujillo, the off1c.r before Wha- the

foregoing heer1ng we. tek.n, do hereby c.rt1fy thet the

w1tn..... who•• te.t1mony eppeer in the for.go1ng heer1ng

tran.cr1pt were duly .worn by me; thet I per.onelly

recorded the te.t1.any by ..oh1n••hor~hend; thet .e1d

h••r1ng 1. e true record of the ••~1MOny g1v.n by .B1d

w1~ne....; the~ I .. neither e~torn.y nor coun••l for,

nor rel.ted to or ..ployed by eny of the pert1e. ~o ~he

.c~1on 1n Which ~h1. h.er1ng 1. teken, end ~het I .. not

a rel.t1ve or ..ployee of .ny et~orney or coun.el

..ployed by the partie. h.reto or f1nenc1.11y 1ntereeted

in the ect1cn.

·~ALstGNED BY

MICHlLIE M. TRUJILLO

NOTARY PUBLIC

eCR L1cen.e lluaber: 228

Ezp1r••: 12/31/03

fty ee..1 ••10n Ezp1r..: 11/28/03

,. 1 reguler monthly ..e~1ng. Aa the .gend. it... et the

2 Nov..ber 21 Air Boerd mee~1ng, ~he Board 1. ezpected to

3 con.1der Bdop~1ng the new P.r~ 48 regula~1on reg.rd1ng

4 sulfur d10x1de inventory end tr.d1ng, .nd incorporating

o n.w PBr~ 46 1n~o ~h. 8IP, if the Board edop~. Pert 48, 1n

6 addition ~o ..king o~her reg10nel he••-releted dec1.10n•.

7 I wan~ ~o ~henk everyone fcr coming th1.

8 even1ng. The ~1Me 15 now 8:47 p... Th1. heer1ng 1. now

9 clo.ed.

10 IH_r1ng clo.ed e~ 8:47 p._.) 11

12

..

14

1.

1.

17

1.

1.

2.

21

22

23

24

2.

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

3
TRANSCRIPT OF PROCEEDINGS Index Page 1

1 Become [SJ 1:11:153;93:113:1411:3

[1J 5:1 Court

1 Began [41 1:23 4:17 4:18 5:23

(5) 2:21 7:137:197:238:2 [1]11:17 [1]9:18 Courts

10 A Begin ['J 4:23

['J8:13 121 5:98:'8 Critical

10th Act Bernalillo [1]7:10

[1]3:10 [1J 4:2 1213:911:3

11 Action Betty D

[']2:18 121":12 ":'5 121 2:7 4:14 D

11/29/03 Actions Board [1J 2:16

[']11:20 [1J 7:8 [43J ':":4 1:62:53:23:53:143:153: Dan

110 Add 1!5 3:16 3:204:74:94:134;144:144: ['J 6:20

[1J 1:23 [1]8:6 164:224:245:3 5:13 5:14 6:3 6:5 7:6 DANIEL

12/31/03 Adding 7:77:248:1 8:21 9:39:79:69:11 9:15 (312:.22:.77:1

[']11:19 9:179:189:21 9:239:249:2510:2 10:

1214:' 8:'5 210:5 Decision

12.h Addition Brief [1J4:24

[2] 1:13 3:9 [1]10:8 ['J 7:5 Decisions

2 Additional Burning [')10:6

1214:156:13 ['J 9:16 Departmen.

2 Address BUTT 14] 3:16 3:25 5:116:17

[iJ ?:15 (3J 6:' 9:3 9:7 [']2:13 De1ermlnes

20.11.46 ADELIA [1]9:24

[I) 1:53:33:17 7:7 7:14 [1]2:10 C Dioxide

2003 Admit (7J 1:5 1:6 3:3 3:4 3:16 3:1910:4

(3]1:133:99:16 [1J 8:18 C Direct

21 Admlt1ed [']2:1 [4J 1:6 3:5 3:20 7:7

14J 9:17 9:19 9:19 10:2 (7J 2:21 2:225:77:167:227:238;20 Cannot Discussions

228 Adopt ['J 6:11 [']5:3

[2J 1:22 11:18 1219:17 9:21 CATALINA DIvision

3 Adopting [1]2:13 [7] 2:93:24 5:10 5:.2 5:'2 6:16 6:22

['J '0:3 CCR DIVision's

3 Adopts 121·:2211:18 [1]5:18

[2] 7:15 8:17 (7J 1:4 3:2 3:17 5:13 7:6 9:1910:5 Cen1er DR

309 Agenda [']3:11 ['J 2:7

(2] 4:3 9:21 [1]10:1 CERTIFICATE Duly

39 Air [']2:'8 121 7:211:7

[']8:17 (34) 1:11:4 1:61:7 2:5 2:9 3:2 3:5 3:7 Certify

3:143:143:163:22 3:244:2 4:7 4:22 5: [1]11:5 E

4 35:105:135:146:36:56:166:227:9 Chairman E

4

9:159:17 9:18 9:21 9:239:249:2510:2 [')4:'3 [4]2:1 2:1 2:162:20

14] 2:21 7:157:207:23 Albuquerque Chang Element

['0] 1:15 1:242:42:11 3:11 3:153:24 121 2:7 4:.4

40 5:11 6:17 6:22 City [1J 9:22

['J 4:4 Albuquerque/Bernalillo (3J 2:10 6:17 6:22 Emissions

4072 (3J I:' 3:103:'3 CiVic 1211:53:.8

11)'2:11 Allow 121.:142:11 Employed

48 [1J 6:6 Clean [2J 11:1111:14

111J 1:63:53:203:204:15:145:146: Amendment [1J 4:2 Employee

1410:310:510:5 (3]8:38:78:19 Close [1]11:13

5 Amendments [1]6:'4 Entitled

(3J 9:17 9:19 9:19 Closed [1]3:17

5 Appear 121'0:9 '0:10 Environmental

[I] 2:22 8:6 8:10 8:18 8:20 [IJ 11:6 Closes [41 3:'8 3:25 5:116:17

500 Appoln1ed [1]9:15 Evening

[1]2:4 [I) 4:10 Code [41 4:17 5:9 9:25 10:8

51 Arrive ['J 4:4 Evidence

[IJ 4:5 [IJ 4:16 Codilled (3]4:234:255:7

525 Art ['J 4:4 Excellent

['J 2:4 ['J 4:6 Coming [1J 8:5

Exhibit

6 ARTHUR [1]'0:7 [8J 2:22 7:13 8:2 8:6 8:108:11 8:138: [']2:3 Commission 188:20

8:40 Assistant [1J 11:20 Exhibits

12l1:143:12 ['J 2:10 Committee I7J 2:21 5:7 7:12 7:157:187:19 7:23

6:47 Attorney 121':'53:9 Expec1ed [2] 10:8 10:10 (5] 2:3 2:10 4:6 11 :10 11 :13 Concludes 1219:25 10:2

7 AuthoriZed [1J 7:17 EXplres 1214:74:9 Conduct [2] 11:19 11:20

Avenue [IJ 4:7 7

12l 2:172:21 [1]2:4 Consider F

8 B [']10:3 Favor Continuation

B ['J 9:15 1215:179:12

8 Federal

[I] 2:22 I3J 1:152:203:10 Control [I] 4:2 4:2 4:4 4:5 7:10

87102 Backstop [3J 1:1 3:146:21 Financially

(4] 1:15 1:242:42:11 (3) 1:53:43:19 Counsel

[2J 11:10 11:13 [']11:14

8th Based Firm

['J 9:16 11]4:24 County 1214:'84:20

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS Index Page 2

First [1]8:2 N Parties

11]7:2 Including (2) 11:1111:14

Five [1]4:3 N Paul

[1]4:10 Incorporated (2) 2:1 2:16 (2) 2:7 4:15

Floor [4) 1:6 3:6 3:219:20 Name Pay

[4]3:108:38:78:19 IncorporaUng [4]4:65:256:196:20 (1]4:20

Follow [1]10:4 NEAL People

11]4:22 Interested (1]2:13 (2) 5:16 6:13

Follows (2)9:1011:14 Near Person

11]7:3 Inventory (1]5:21 [I] 6:2 6:7 6:9 6:10 9:6 9:10

Foregoing 14J 1:53:33:1810:4 Necessary Personally

(2) 11:511:6 Irrelevant [lJ 7:8 (1]11:7

Forward I1J 5:5 New Place

(3J 9:4 9:9 9:13 Items [17] 1:41:6 1:15 1:242:42:113:2 3:6 [1]7:8

Four 11110:1 3:113:173:217:67:159:2110:310:5 Plan

11]1:12 J 11:1 [4J 1:7 3:7 3:227:9

Front Newspaper Plaza

I1J 5:21 J (1]7:15 (2) 1:14 2:11

G (3] 2:12 2:17 7:1 Next PM

K [lJ 5:16 [lJ 10:10

G NMAC Point

(1)2:3 Karen [I] 1:53:3 3:17 7:7 7:14 I1J 8:5

Generally (2J 2:6 4:13 None Presence

(1]5:18 Kathy [4J 9:2 9:6 9:10 9:14 I1J 4:16

Given (2J 1:234:18 Nortl1West Present

[3] 5:6 6:9 11:9 KEARNY (4) 1:14 1:23 2:4 2:11 [I] 4:12 5:12 5:136:79:24

Government (1)2:10 NOTARY Presently

I1J 3:11 Known 1'1":'8 I1J 4:9

Group [2] 3:14 3:22 Note PROCEEDINGS

1'19:11 L (2J 4:8 4:16 I1Jl:12

Guess Notlllcatlons Program

11]8:5 Late (1]7:16 (3] 1:6 3:5 3:19

I1J 9:24 November Proposal H Law (3]1:133:910:2 [12] 1:4 3:2 3:15 5:12 5:13 5:19 9:4 9:8

H (1)2:3 Number 9:129:17 9:18 9:20

[lJ 2:20 LEHNER (2J 8:6 11 :18 Proposed

Hand [lJ 2:13 0 (3] 7:14 8:7 9:21

11] 6:23 License Proposing

Haze [lJ 11:18 Oath [lJ 4:1

[5] 4:3 4:4 7:10 9:22 10:6 Limit [lJ 7:2 Providing

Haze·related (1J 5:5 Objection [lJ 7:5

[1]10:6 Line (2J 7:19 7:21 PUblic

Health 1'18:17 Objections [I] 1:2 3:1 3:88:2511:18

(4] 3:16 3:25 5:11 6:17 Located I1J 5:8

Hear 11]5:20 Obtain Q

1']9:15 M [11 4:19 Quality

Heard OCtober [11J 1:1 1:72:93:73:143:223:245:10

1'16:3 M (1)9:16 6:186:22 7:9

Hearing I1J 11:4 Otncer Questioned

[27] 1:22:23:1 3:83:134:84:134:19 Machine [3] 2:2 7:4 11:4 (1]7:3

4:255:1 5:45:55:95:166:146:157:4 [1111:8 otona Questions

7:137:168:149:1510:810:1011:511: Marquette (11] 2:3 3:14:66:237:197:248:98:12 [7] 6:6 6:7 6:8 6:117:258:228:25

611:911:12 [1]2:4 8:158:188:21 Quorum

Hearings Malter One I1J 9:23

(2J 4:22 9:16 I1J 7:5 [3] 1:142:119:16

Held Means Open R

11]3:8 [11 8:16 I1J 9:18 R Hereby Meet Opponent [112:1 [1]11:5 (1J 4:1 [1]9:7 Raise Hereto Meeting Opportunity [1]6:23 11]11 :14 (2J 5:17 6:6

Herself [4J 4:12 5:3 10:1 10:2 Order Re

11]5:24 Member (2J 4:20 7:10 (1]1:3

Himself [8] 4:14 4:14 4:15 7:24 8:1 8:21 8:249: Organization Recommend

3 (1J 8:8

[1]5:24 Members (3] 6:1 6:2 9:11 Record Hold [8] 2:5 4:9 4:10 4:12 4:15 6:3 Own [8] 4:8 5:2 5:8 5:25 7:13 8:9 8:1911:9

1119:25 Mexico [1]6:12 Recorded

I [10] 1:61 :15 1:242:42:11 3:63:11 3: P (1J 11:8

217:1511:1 Referring

Identify Michele P I1J 8:10

[1]5:24 (3] 1:224:1711:4 (2J 2:1 2:1 Regarding

Immediately Monthly P.m. [7] 3:1 3:155:187:258:259:4 10:3

[1]5:20 I1J 10:1 [3] 1:143:1210:8 Regional

Implementation Motions Page [I] 4:2 4:3 7:10 9:22 10:6

[4]1:73:63:227:9 I1J 5:8 [3] 2:16 8:12 8:17 Register

Important Must Part (1]7:16

11]4:23 [4]4:24 5:24 5:25 6:8 [11] 1:6 3:5 3:20 3:20 4:1 4:5 5:1 5:13 ~~Ular Include 5:146:149:17 9:19 9:1910:310:510:5 1 10:1

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102
TRANSCRIPT OF PROCEEDINGS

Regulation Strategies 117] 2:12 2:17 6:19 6:20 6:20 7:1 7:47:

[II 1;5 3:33:177:77:87:147:2510:3 [1]6:21 258:48:98:11 8:138:17 8:228:238:

Regulations Street 259:2

131 4:3 4:4 4:5 11]1:23

Related Submit Wednesday

[3] 6:810:611:11 11]7:13 11]3:8

Relative Submitted

11]11:13 (2] 4:25 5:15 Wentworth

Remember Sue (2] 2:6 4:13

[1]4:24 (2] 2:8 4:14

Western Repeats Suite

11]5:6 11]2:4 131 1:5 3:4 3:18

REPORTED Sullur Will [1]1:22 [7] 1:5 1:53:33:43:17 3:1910:4

Reporter Supervisor 1'4]4:'65:15:5 5:6 5:95:12 5:12 5:17

(2] 4:17 5:23 1']6:21 5:226:66:147:218:189:15

REPORTER'S Sworn WIsh [1]2:18 [1]4:245:1 5:45:225:246:106:237:2

Reporters 11:7 [7] 4:19 5:19 6:14 9:3 9:6 9:8 9:11

[1]1:23 T Wishes Reporting

[1]4:18 T 11]5:22

Represent [1]2:20 Witness [1]6:1 Table

ReqUire 11]5:21 [II 5:24 5:25 6:3 6:4 6:6 6:7 6:8 6:9

11]5:14 TesUfted WItnesses

Requirements (2] 6:3 7:3 P]5:411:611:10 [&] 1:5 3:4 3:18 4:1 7:11 Testily

Revision [115:175:175:195:226:14 Word

(2] 3:21 5:15 Testimony (2] 8:15 8:18 Room 1201 2:17 4:25 5:1 5:4 5:5 5:6 5:1 0 5:23

[4]1:152:11 3:105:21 6:86:127:57:17 9:1 9:59:89:11 9:13

RUle 11:611:811:9 X

[lJ 5:6 Three X Rules (2] 9:16 9:20

11]4:22 Today (2] 2:16 2:20

11]6:13

S Tonight

S [3] 4:13 9:14 9:23

(2] 2:1 2:20 Townsend

(2] 1:234:18 Satisfy Trading [lJ 7:10

Section (4] 1:63:43:1910:4

131 4:3 6:21 9:21 Transcript

Sections [5] 1:12 4:19 4:20 4:2111:7

True 1']8:16 11]11:9 Seven Trujillo [1]4:8

Sheet [3] 1:22 4:1811:4

11] 5,20 Turn

11]8:11 Short Twelfth 11]8:6 11]1:23 Shorthand Two 11]11:8 (2] 4:10 9:18 Slgn-<Jp

11] 5:20 U Signed Umshler 11]5:19

Silverman [5] 2:84:148:1 8:28:88:21

[2] 2:7 4:15 Under

SIP 11]7:2

[7] 3:23 4:1 5:156:149:209:2210:5 Up

Sit 11]5:19

11]4:9 V Someone

11]6" Vacancies

Sorry 11]4:11

11J 8:24 Vice

Ss [1]4:13

11]11:2 V1ce-Chalnnan

Stan 1']4:13

State

(2] 6:16 7:7 W

[7] 1:73:63:21 5:256:197:911:1 W

States [1]2:10

[1] 3:25 Walt

Step [1]6:24

13]9:49:99:13 Warren

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NORTHWEST, ALBUQUERQUE, NM 87102

Index Page 3 .
J]

1 STATE OF NEW MEXICO )

2 )ss.

3 COUNTY OF BERNALILLO)

4 I, Michele M. Trujillo, the officer before whom the

5 foregoing hearing was taken, do hereby certify that the

6 witnesses whose testimony appear in the foregoing hearing

7 transcript were duly sworn by me; that I personally

8 recorded the testimony by machine shorthand; that said

9 hearing is a true record of the testimony given by said

10 witnesses; that I am neither attorney nor counsel for,

11 nor related to or employed by any of the parties to the

12 action in which this hearing is taken, and that I am not

13 a relative or employee of any attorney or counsel

14 employed by the parties hereto or financially interested

15 in the action.

16

17

18

19

20

21

22

23

24

25

My Commission Expires:

"

~nN 0 T·~',4.~"""'~=-''<F

CCR License

Expires:

11/29/03

226

KATHY TOWNSEND COURT REPORTERS (505) 243-5018

110 TWELFTH STREET, NW, ALBUQUERQUE, NM 87102