Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Proposed Rules 71145 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Reporting and recordkeeping 

requirements. 

Dated: November 14, 2012. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

[FR Doc. 2012–28908 Filed 11–28–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–NM–0006; FRL– 

9756–3] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

New Source Review (NSR) 

Preconstruction Permitting Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the applicable New Source 

Review (NSR) State Implementation 

Plan (SIP) for New Mexico. Among the 

changes, EPA is proposing to approve 

are the following: The establishment of 

a new minor NSR (MNSR) general 

construction permitting program; 

changes to the MNSR Public 

Participation requirements; the 

establishment of three different types of 

MNSR Permit Revisions; and the 

addition of exemptions for de minimis 

emission sources and activities from 

obtaining a MNSR permit. EPA proposes 

to find that these revisions to the New 

Mexico SIP comply with the Federal 

Clean Air Act (the Act or CAA) and EPA 

regulations and are consistent with EPA 

policies. EPA is proposing this action 

under section 110 of the Act. 

DATES: Comments must be received on 

or before December 31, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R06– 

OAR–2005–NM–0006, by one of the 

following methods: 

(1) www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

(2) Email: Ms. Ashley Mohr at 

mohr.ashley@epa.gov. 

(3) Fax: Ms. Ashley Mohr, Air Permits 

Section (6PD–R), at fax number 214– 

665–6762. 

(4) Mail: Ms. Ashley Mohr, Air 

Permits Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

(5) Hand or Courier Delivery: Ms. 

Ashley Mohr, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

1445 Ross Avenue, Suite 1200, Dallas, 

Texas 75202–2733. Such deliveries are 

accepted only between the hours of 8:30 

a.m. and 4:30 p.m. weekdays except for 

legal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2005– 

NM–0006. EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information 

through http://www.regulations.gov or 

email, if you believe that it is CBI or 

otherwise protected from disclosure. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means that EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to EPA without going 

through http://www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment along with any disk or CD– 

ROM submitted. If EPA cannot read 

your comment due to technical 

difficulties and cannot contact you for 

clarification, EPA may not be able to 

consider your comment. Electronic files 

should avoid the use of special 

characters and any form of encryption 

and should be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information the disclosure of which is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. A 15 cent 

per page fee will be charged for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area on the seventh 

floor at 1445 Ross Avenue, Suite 700, 

Dallas, Texas. 

The State submittal related to this SIP 

revision, and which is part of the EPA 

docket, is also available for public 

inspection at the State Air Agency listed 

below during official business hours by 

appointment: 

New Mexico Environment 

Department, Air Quality Bureau, 1301 

Siler Road, Building B, Santa Fe, New 

Mexico. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning today’s 

direct final action, please contact Ms. 

Ashley Mohr (6PD–R), Air Permits 

Section, Environmental Protection 

Agency, Region 6, 1445 Ross Avenue 

(6PD–R), Suite 1200, Dallas, Texas 

75202–2733, telephone (214) 665–7289; 

fax number (214) 665–6762; email 

address mohr.ashley@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document the 

following terms have the meanings 

described below: 

• ‘‘we’’, ‘‘us’’ and ‘‘our’’ refer to EPA. 

• ‘‘Act’’ and ‘‘CAA’’ mean the Clean 

Air Act. 


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71146 Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Proposed Rules 

1Clarification of Exemptions in Section 202 of 

20.2.72 NMAC—Construction Permits letter dated 

September 19, 2012 from Richard L. Goodyear, PE, 

Bureau Chief, NMED to Mr. Thomas Diggs, 

Associate Director for Air Programs, EPA, Region 6. 2Clarification of Intent for Section 220 of 20.2.72 

NMAC—Construction Permits letter dated 

September 19, 2012 from Richard L. Goodyear, PE, 

Bureau Chief, NMED to Mr. Thomas Diggs, 

Associate Director for Air Programs, EPA, Region 6. 3Permit Exemptions data provided via electronic 

mail dated September 18, 2012, from Kerwin 

Singleton, NMED, to Ashley Mohr, EPA, Region 6. 4Historical Technical permit revisions data was 

provided via electronic mail dated November 2, 

2012, from Kerwin Singleton, NMED, to Ashley 

Mohr, EPA, Region 6. 

• ‘‘40 CFR’’ means Title 40 of the 

Code of Federal Regulations—Protection 

of the Environment. 

• ‘‘SIP’’ means the State 

Implementation Plan established under 

section 110 of the Act. 

• ‘‘NSR’’ means new source review. 

• ‘‘TSD’’ means the Technical 

Support Document for this action. 

• ‘‘NAAQS’’ means any national 

ambient air quality standard established 

under 40 CFR part 50. 

Table of Contents 

I. What action is EPA proposing? 

II. What did New Mexico submit? 

A. May 29, 1998 SIP Revision Submittal 

B. November 6, 1998 SIP Revision 

Submittal 

C. April 11, 2002 SIP Revision Submittal 

D. April 25, 2005 SIP Revision Submittal 

E. November 2, 2006 SIP Revision 

Submittal 

III. EPA’s Evaluation 

A. What are the requirements for EPA’s 

evaluation of a preconstruction 

permitting program SIP submittal? 

B. Technical Review of New Mexico’s SIP 

Revision Submittals 

1. Submitted Revisions to Section 203— 

Contents of Permit Applications 

2. Submitted Revisions to Section 207— 

Permit Decisions and Appeals 

3. Submitted Revisions to Section 216— 

New Applicability Conditions and 

Requirements for Sources Located in 

Nonattainment Areas 

4. Submittal of New Section 220—Minor 

NSR General Permits 

a. 110(l) Analysis for Section 220 

5. Submitted Revisions to Section 206— 

Public Notice and Participation for 

Minor NSR 

a. 110(l) Analysis for Section 206 

6. Submittal of New Section 219—Permit 

Revisions for Minor NSR 

a. Administrative Permit Revisions 

b. Technical Permit Revisions 

c. 110(l) Analysis for Technical Revisions 

d. Significant Permit Revisions 

7. Submitted Revisions to Section 202— 

New Exemptions for de minimis Sources 

and Activities From Minor NSR 

Permitting Requirements 

a. Paragraph A Exemptions 

b. 110(l) Analysis for Paragraph A 

Exemptions 

c. Paragraph B Exemptions 

d. 110(l) Analysis for Paragraph B 

Exemptions 

e. Paragraph C Exemptions 

f. 110(l) Analysis for Paragraph C 

Exemptions 

g. Portable Source Relocation 

h. Additional 110(l) Analysis—Historical 

Look Back 

IV. Proposed Action 

A. What are we not addressing in this 

proposed action? 

V. Statutory and Executive Order Reviews 

I. What action is EPA proposing? 

The Act at section 110(a)(2) requires 

states to develop and submit to EPA for 

approval into the SIP preconstruction 

review and permitting programs 

applicable to certain new and modified 

stationary sources of air pollutants for 

attainment and nonattainment areas that 

cover both major and minor sources and 

modifications, collectively referred to as 

the NSR SIP. The CAA NSR SIP 

program is composed of three separate 

programs: Prevention of Significant 

Deterioration (PSD), Nonattainment 

New Source Review (NNSR), and 

MNSR. PSD is established in part C of 

title I of the CAA and applies in areas 

that meet the NAAQS—‘‘attainment 

areas’’—as well as areas where there is 

insufficient information to determine if 

the area meets the NAAQS— 

‘‘unclassifiable areas.’’ The NNSR SIP 

program is established in part D of title 

I of the CAA and applies in areas that 

are not in attainment of the NAAQS— 

‘‘nonattainment areas.’’ The Minor NSR 

SIP program addresses construction or 

modification activities that do not emit, 

or have the potential to emit, beyond 

certain thresholds and thus do not 

qualify as ‘‘major’’ and applies 

regardless of the NAAQS designation of 

the area in which a source is located. 

Together, these programs are referred to 

as the NSR program. EPA regulations 

governing the criteria that states must 

satisfy for EPA approval of the NSR 

programs as part of the SIP are 

contained in 40 CFR 51.160–51.166; and 

part 51, Appendix S. 

EPA is proposing to approve revisions 

to the NSR SIP for New Mexico 

submitted on May 29, 1998, November 

6, 1998, April 11, 2002, April 25, 2005, 

and November 2, 2006, which 

incorporate changes to the Construction 

Permits regulation contained in 20.2.72 

of the New Mexico Administrative Code 

(NMAC), also known as Part 72. Part 72 

contains the provisions that establish 

New Mexico’s Minor NSR permitting 

program as well as preconstruction 

permitting requirements potentially 

applicable to other programs under the 

NMAC. EPA also is proposing to 

approve as part of the New Mexico NSR 

SIP, the letter dated November 7, 2012, 

from the Secretary committing the 

NMED Air Quality Bureau to providing 

notification on the NMED’s Web site of 

all second 30-day public comment 

periods provided for under Paragraph B 

of Section 206 of Part 72. 

The five SIP revisions submittals 

under review in this action contain 

proposed changes to each of the current 

SIP-approved Sections of Part 72 and 

include the proposed addition of two 

new Sections within the Part. All 

changes are identified in Table 1 of this 

rulemaking. These proposed changes 

include non-substantive changes to Part 

72, such as corrections of typographical 

errors and additions of clarifying 

language to the existing SIP. These 

proposed changes also include revisions 

that result in a more stringent SIP than 

currently approved, such as 

incorporation of additional 

recordkeeping and notification 

requirements for portable sources to 

relocate without a permit; these changes 

resulting in a more stringent SIP are 

discussed in more detail in this 

rulemaking and TSD. Furthermore, 

some of the revisions include changes 

that alter current SIP-approved 

permitting programs but still meet 

applicable federal requirements, such as 

a change from case-by-case permitting to 

general permitting for certain Minor 

NSR sources. Finally, proposed changes 

also include revisions that are less 

stringent than the current SIP and those 

revisions must be evaluated under 

section 110(l) of the CAA to determine 

they will not interfere with attainment 

or reasonable further progress or any 

other applicable requirement of the Act. 

These revisions include the addition of 

exemptions for de minimis sources and 

activities from MNSR permitting 

requirements, tiered permit revisions, 

and changes to MNSR public notice and 

participation requirements. The 

November 7, 2012 letter from the 

Secretary provides clarifying 

information for the changes to NMSR 

public notice and participation 

requirements. Our technical analysis of 

all these proposed changes contained in 

the May 29, 1998, November 6, 1998, 

April 11, 2002, April 25, 2005, and 

November 2, 2006 SIP revision 

submittals, the Secretary’s November 7, 

2012 letter, and additional 

supplemental information provided by 

NMED, has found that they meet the 

CAA and 40 CFR Part 51 and are 

consistent with EPA policies.1234

Therefore, EPA proposes action to 

approve the revisions to Part 72 and the 

Secretary’s November 7, 2012 letter into 

the New Mexico NSR SIP. EPA is 

proposing this action under section 110 

of the Clean Air Act (the Act). We 


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provide a summary of the reasoning 

comprising our evaluation in this 

rulemaking, as well as a more detailed 

evaluation and analysis in the Technical 

Support Document (TSD) for this 

rulemaking. 

II. What did New Mexico submit? 

EPA’s proposed approval action today 

addresses portions of five revisions to 

the New Mexico SIP submitted on May 

29, 1998, November 6, 1998, April 11, 

2002, April 25, 2005, and November 2, 

2006. EPA also is proposing to approve 

as part of the New Mexico NSR SIP, the 

letter dated November 7, 2012, from the 

Secretary. 

A. May 29, 1998 SIP Revision Submittal 

The State of New Mexico submitted a 

revision on May 29, 1998 to 20.2.72 

NMAC—Construction Permits for 

incorporation into the New Mexico SIP. 

This submittal includes the following 

changes: 

• Revisions to the following sections: 

20.2.72.104 NMAC, Effective Date; 

20.2.72.202 NMAC, Permit Revisions; 

20.2.72.203 NMAC, Contents of 

Applications; and 20.2.72.207 NMAC, 

Permit Decisions and Appeals. 

• Addition of the following new 

sections: 20.2.72.219 NMAC, Permit 

Revisions and 20.2.72.220 NMAC, 

General Permits. 

B. November 6, 1998 SIP Revision 

Submittal 

The State of New Mexico submitted a 

revision on November 6, 1998 to 20.2.72 

NMAC—Construction Permits for 

incorporation into the New Mexico SIP. 

This submittal includes the following 

changes: 

• Revisions to the following sections: 

20.2.72.210 NMAC, Permit Conditions 

and 20.2.72.300 NMAC, Definitions. 

C. April 11, 2002 SIP Revision Submittal 

The State of New Mexico submitted a 

revision on April 11, 2002 to 20.2.72 

NMAC—Construction Permits for 

incorporation into the New Mexico SIP. 

This submittal includes the following 

changes: 

• Revisions to the following sections: 

20.2.72.107 NMAC, Definitions; 

20.2.72.201 NMAC, New Source Review 

Coordination; 20.2.72.203 NMAC, 

Contents of Applications; 20.2.72.206 

NMAC, Public Notice and Participation; 

20.2.72.207 NMAC, Permit Decisions 

and Appeals; 20.2.72.208 NMAC, Basis 

for Denial of Permit; 20.2.72.215 NMAC, 

Emergency Permit Process; 20.2.72.219 

NMAC, Permit Revisions; 20.2.72.220 

NMAC, General Permits; 20.2.72.301 

NMAC, Applicability; 20.2.72.302 

NMAC, Contents of Applications; and 

20.2.72.304 NMAC, Permit Decisions. 

• In addition to the revisions of the 

previously listed sections, the April 11, 

2002 submittal also included the 

renumbering of several existing sections 

and formatting changes that were made 

throughout the entire Part. These 

formatting changes were necessary for 

the provisions contained in Part 72 to 

match the formatting style of other Parts 

contained in the NMAC. 

D. April 25, 2005 SIP Revision Submittal 

The State of New Mexico submitted a 

revision on April 25, 2005 to 20.2.72 

NMAC—Construction Permits for 

incorporation into the New Mexico SIP. 

This submittal includes the following 

changes: 

• Revisions to the following section: 

20.2.72.219 NMAC, Permit Revisions. 

E. November 2, 2006 SIP Revision 

Submittal 

The State of New Mexico submitted a 

revision on November 2, 2006 to 20.2.72 

NMAC—Construction Permits for 

incorporation into the New Mexico SIP. 

This submittal includes the following 

changes: 

• Revisions to the following section: 

20.2.72.216 NMAC, Nonattainment Area 

Requirements. 

Table 1 summarizes the changes that 

are in the SIP revisions submitted on 

May 29, 1998, November 6, 1998, April 

11, 2002, April 25, 2005, and November 

2, 2006. A summary of EPA’s evaluation 

of each section and the basis for this 

action is discussed in Section III of this 

preamble. The TSD includes a detailed 

evaluation of the referenced SIP 

submittals. Table 1. Summary of each 

SIP submittal that is affected by this 

action. 

TABLE 1—SUMMARY OF EACH SIP SUBMITTAL THAT IS AFFECTED BY THIS ACTION

Section Title Submittal 

dates Description of change Proposed action 

20.2.72 NMAC—Construction Permits 

Issuing Agency 

20.2.72.100 NMAC .. Issuing Agency ................... 4/11/2002 Section 100 renumbered to Section 1 and revised to update the section title formatting.Approval. 

Scope 

20.2.72.101 NMAC .. Scope .................................. 4/11/2002 Section 101 renumbered to Section 2 and revised to update the section title formatting.Approval. 

Statutory Authority 

20.2.72.102 NMAC .. Statutory Authority .............. 4/11/2002 Section 102 renumbered to Section 3 and revised to update the section title formatting.Approval. 

Duration 

20.2.72.103 NMAC .. Duration .............................. 4/11/2002 Section 103 renumbered to Section 4 and revised to update the section title and section references formatting.Approval. 

Effective Date 

20.2.72.104 NMAC .. Effective Date ..................... 5/29/1998 Section revised to account for different effective dates 

for the different sections contained in this Part.

Approval. 


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TABLE 1—SUMMARY OF EACH SIP SUBMITTAL THAT IS AFFECTED BY THIS ACTION—Continued 

Section Title Submittal 

dates Description of change Proposed action 

4/11/2002 Section 104 renumbered to Section 5 and revised to update the section title and date formatting.Approval. 

Objective 

20.2.72.105 NMAC .. Objective ............................. 4/11/2002 Section 105 renumbered to Section 6 and revised to update the section title formatting.Approval. 

Amendment and Supersession of Prior Regulations 

20.2.72.106 NMAC .. Amendment and Supersession of Prior Regulations.4/11/2002 Section 106 renumbered to Section 8 and revised to update the section title formatting.Approval. 

Definitions 

20.2.72.107 NMAC .. Definitions ........................... 4/11/2002 Section 107 renumbered to Section 7 and revised to update the section title, section references, and list 

numbering formatting; Section revised to update the 

definition of ‘‘Potential Emission Rate’’.

Approval. 

Documents 

20.2.72.108 NMAC Documents .......................... 4/11/2002 Section 108 renumbered to Section 9 and revised to update the section title formatting.Approval. 

Application for Construction Modification, NSPS, and NESHAP—Permits and Revisions 

20.2.72.200 NMAC .. Application for Construction, 

Modification, NSPS, and 

NESHAP—Permits and 

Revisions.

4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

New Source Review Coordination 

20.2.72.201 NMAC .. New Source Review Coordination.4/11/2002 Section revised to include clarification regarding the 

number of applications required if source is subject to 

NSR under multiple parts; Section revised to update 

the section title and section references formatting.

Approval. 

Permit Revisions 

20.2.72.202 NMAC .. Permit Revisions ................. 5/29/1998 Section revised to add a list of emission sources and 

activities that may be exempt from certain 

preconstruction permitting requirements; Section revised to include an exemption from preconstruction 

permitting applicability for a specific group of sources 

that trigger permitting only as a result of NSPS and 

NESHAP requirements.

Approval. 

4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Contents of Applications 

20.2.72.203 NMAC .. Contents of Applications ..... 5/29/1998 Section revised to update provisions to reflect the tiered 

permit revisions approach and to add clarifying language regarding public notice requirements, including 

requirements for public service announcements.

Approval. 

4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Confidential Information Protection 

20.2.72.204 NMAC .. Confidential Information 

Protection.

4/11/2002 Section revised to update the section title and section 

references formatting.

Approval. 

Construction, Modification and Permit Revision in Bernalillo County 

20.2.72.205 NMAC .. Construction, Modification 

and Permit Revision in 

Bernalillo County.

4/11/2002 Section revised to update the section title formatting ..... Approval. 


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TABLE 1—SUMMARY OF EACH SIP SUBMITTAL THAT IS AFFECTED BY THIS ACTION—Continued 

Section Title Submittal 

dates Description of change Proposed action 

Public Notice and Participation 

20.2.72.206 NMAC .. Public Notice and Participation.5/29/1998 Section was revised to remove a descriptive term from 

the provisions that the Department felt was unnecessary and caused confusion in the current provisions.

Approval. 

4/11/2002 Section revised to update the section title, section references, and list numbering formatting; Section revised to change the public notice process to a twostep notice with the public comment period reduced 

from 45 days to 30 days.

Approval. 

Permit Decisions and Appeals 

20.2.72.207 NMAC .. Permit Decisions and Appeals.5/29/1998 Section revised to include clarifying language and to 

specify what requirements in the section apply only to 

significant permit revisions.

Approval. 

4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Basis for Denial of Permit 

20.2.72.208 NMAC .. Basis for Denial of Permit ... 4/11/2002 Section revised to include clarifying language and to delete references to provisions that have been previously removed from the NMAC.Approval. 

Additional Legal Responsibilities on Applicants 

20.2.72.209 NMAC .. Additional Legal Responsibilities on Applicants.4/11/2002 Section revised to update the section title formatting ..... Approval. 

Permit Conditions 

20.2.72.210 NMAC .. Permit Conditions ............... 11/6/1998 Section was revised to correct a typographical error that 

was adopted by the state in a previous revision of the 

Section.

Approval. 

4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Permit Cancellations 

20.2.72.211 NMAC .. Permit Cancellations ........... 4/11/2002 Section revised to update the section title and list numbering formatting.Approval. 

Permittee’s Notification Requirements to Department 

20.2.72.212 NMAC .. Permittee’s Notification Requirements to Department.4/11/2002 Section revised to update the section title ....................... Approval. 

Startup and Followup Testing 

20.2.72.213 NMAC .. Startup and Followup Testing.4/11/2002 Section revised to update the section title and section 

references formatting.

Approval. 

Source Class Exemption Process (Permit Streamlining) 

20.2.72.214 NMAC .. Source Class Exemption 

Process (Permit Streamlining).

4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Emergency Permit Process 

20.2.72.215 NMAC .. Emergency Permit Process 4/11/2002 Section revised to update the section title and section 

references formatting.

Approval. 

Nonattainment Area Requirements 

20.2.72.216 NMAC .. Nonattainment Area Requirements.4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

11/2/2006 Section revised to include clarifying language and to 

specify permitting applicability tests for permit actions 

in nonattainment areas.

Approval. 


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71150 Federal Register / Vol. 77, No. 230 / Thursday, November 29, 2012 / Proposed Rules 

TABLE 1—SUMMARY OF EACH SIP SUBMITTAL THAT IS AFFECTED BY THIS ACTION—Continued 

Section Title Submittal 

dates Description of change Proposed action 

Compliance Certifications 

20.2.72.217 NMAC .. Compliance Certifications ... 4/11/2002 Section revised to update the section title and section 

references formatting.

Approval. 

Enforcement 

20.2.72.218 NMAC .. Enforcement ........................ 4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Permit Revisions 

20.2.72.219 NMAC .. Permit Revisions ................. 5/29/1998 Section added to the Part and permit revisions previously contained in Section 202 were moved to this 

Section and revised to include three separate tiers of 

permit revisions.

Approval. 

4/11/2002 Section updated to revise references to other provisions 

in the Part that were changes as a result of simultaneous updates; Section revised to update the section 

title, section references, and list numbering formatting.

Approval. 

4/25/2005 Section updated to include two additional permit actions 

that would qualify as Technical permit revisions instead of Significant revisions.

Approval. 

General Permits 

20.2.72.220 NMAC .. General Permits .................. 5/29/1998 Section added to the Part to include provisions related 

to the state adopted General Permits preconstruction 

program a.

Approval. 

4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Definitions 

20.2.72.300 NMAC .. Definitions ........................... 11/6/1998 Section was revised to correct a typographical error that 

was adopted by the state in a previous revision of the 

Section.

Approval. 

4/11/2002 Section revised to update the section title and section 

references formatting.

Approval. 

Applicability 

20.2.72.301 NMAC .. Applicability ......................... 4/11/2002 Section updated to revise references to other provisions 

in the Part that were changes as a result of simultaneous updates; Section revised to update the section 

title, section references, and list numbering formatting.

Approval. 

Contents of Applications 

20.2.72.302 NMAC .. Contents of Applications ..... 4/11/2002 Section revised to include clarifying language regarding 

the permit application requirements for applicant’s 

seeking a streamlined construction permit; Section revised to update the section title, section references, 

and list numbering formatting.

Approval. 

Public Notice and Participation 

20.2.72.303 NMAC .. Public Notice and Participation.4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Permit Decisions 

20.2.72.304 NMAC .. Permit Decisions ................. 4/11/2002 Section revised to include clarifying language regarding 

the review of a permit application for ‘‘administrative 

completeness’’; Section revised to update the section 

title, section references, and list numbering formatting.

Approval. 

General Requirements 

20.2.72.305 NMAC .. General Requirements ........ 4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 


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5The Sunland Park area has unique 

considerations for ozone planning due to airshed 

contributions from Mexico and Texas. Air quality 

within the Paso del Norte Airshed has improved 

over the last 10 years due to cooperative efforts 

between the State of Texas, the State of New 

Mexico, and Mexico through organizations such as 

the Paso Del Norte Joint Advisory Committee (JAC). 

Although the area has continued to monitor 

attainment of the 1-hour ozone standard the State 

chose not to submit a request for redesignation 

before EPA revoked the 1-hour ozone NAAQS. 

Monitors in Sunland Park continue to reflect 

attainment of the 1-hour ozone NAAQS. The State, 

however, did not submit a request for redesignation 

of the area to attainment for the 1-hour ozone 

standard and a section 175A maintenance plan. 

Because the area was never redesignated to 

attainment, the area must continue to meet the 1- 

hour ozone marginal area applicable requirements 

(see 40 CFR 51.905(a)(3)). Sunland Park has met the 

revoked 1-hour ozone standard since 1998. (See 76 

FR 28181). 

TABLE 1—SUMMARY OF EACH SIP SUBMITTAL THAT IS AFFECTED BY THIS ACTION—Continued 

Section Title Submittal 

dates Description of change Proposed action 

Source Class Requirements 

20.2.72.306 NMAC .. Source Class Requirements 4/11/2002 Section revised to update the section title, section references, and list numbering formatting.Approval. 

Table 1—Significant Ambient Concentrations 

20.2.72.500 NMAC .. Table 1—Significant Ambient Concentrations.4/11/2002 Section revised to update the section title formatting ..... Approval. 

Table 2—Permit Streamlining Source Class Categories 

20.2.72.501 NMAC .. Table 2—Permit Streamlining Source Class Categories.4/11/2002 Section revised to update the section title formatting ..... Approval. 

a 20.2.72.220(A)(2)(c)(i) NMAC references the requirements found in 20.2.77 NMAC, 20.2.78 NMAC, and 20.2.82 NMAC (hereafter collectively 

referred to as Parts 77, 78, and 82), which are regulations separate from the preconstruction permitting rules governed by 20.2.72 NMAC. The 

regulations included in Parts 77, 78, and 82 are subject to statutory and regulatory evaluation beyond the statutory scope of this rulemaking. This 

action is limited to determining whether the revisions to the Part 72—Construction Permit provisions contained in the New Mexico SIP comply 

with the Federal Clean Air Act and EPA regulations and are consistent with EPA policies. Therefore, we are approving the reference to these 

regulations as part of the General Permits provisions being approved into Part 72 of the New Mexico SIP so as to include the requirement that 

general construction permits contain adequate permit conditions to ensure compliance with the requirements contained in Parts 77, 78, and 82, 

but we are not evaluating or approving into the SIP the underlying and related regulations for these Parts through this rulemaking. 

III. EPA’s Evaluation 

The current New Mexico SIP includes 

EPA-approved Part 72 provisions (see 

62 FR 50514, September 26, 1997), 

which are related to New Mexico’s 

MNSR construction permit program and 

preconstruction permitting 

requirements potentially applicable to 

other programs under the New Mexico 

Administrative Code. Since the 

September 26, 1997 EPA approval, New 

Mexico has submitted revisions to Part 

72 provisions to EPA for review and 

action on the following dates: May 29, 

1998, November 6, 1998, April 11, 2002, 

April 25, 2005, and November 2, 2006. 

The following sections of this proposed 

action and the accompanying TSD 

analyze the proposed revisions to the 

Construction Permits regulation found 

in Part 72 to preliminarily determine 

whether the submitted revisions and the 

Secretary’s Letter dated November 7, 

2012 as a whole support the CAA, EPA 

policy, and guidance for NSR 

permitting. 

A. What are the requirements for EPA’s 

evaluation of a preconstruction 

permitting program SIP submittal? 

The State of New Mexico submitted 

revisions to its NSR SIP on May 29, 

1998, November 6, 1998, April 11, 2002, 

April 25, 2005, and November 2, 2006, 

incorporating changes to the 

Construction Permits regulation 

contained in 20.2.72 NMAC for 

approval by EPA as revisions to the New 

Mexico NSR SIP. These SIP revisions 

were submitted pursuant to the 

applicable requirements of section 

110(a)(2) of the CAA. For example, the 

federal requirements at Section 

110(a)(2)(A) direct each SIP to include 

enforceable emission limitations 

necessary or appropriate to meet the 

CAA’s applicable requirements. Section 

110(a)(2)(C) requires each SIP to include 

a program to provide for the 

enforcement of the measures described 

in 110(a)(2)(A), and regulation of the 

modification and construction of any 

stationary source within attainment/ 

unclassifiable areas and nonattainment 

areas. EPA regulations further governing 

the criteria that states must satisfy for 

EPA approval of the NSR programs as 

part of the SIP are contained in 40 CFR 

51.160—51.166; and part 51, Appendix 

S. 

In addition to the applicable 

preconstruction permitting program 

related requirements of section 

110(a)(2), EPA’s evaluation must 

consider section 110(l) of the CAA. 

Section 110(l) of the CAA states that 

EPA shall not approve a revision of the 

SIP if it would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress or any other applicable 

requirement of the Act. Thus, under 

CAA section 110(l), the proposed NSR 

SIP revision submittals must not 

interfere with attainment, reasonable 

further progress, or any other applicable 

requirement of the Act. The provisions 

contained in Part 72 are applicable to all 

‘‘regulated air pollutants,’’ which 

includes all pollutants for which there 

are NAAQS. Therefore, as part of the 

110(l) analysis, we have evaluated the 

proposed NSR SIP revision submittals 

for their impacts on attainment and 

reasonable further progress for all 

NAAQS pollutants. The entire state of 

New Mexico is designated attainment 

for all pollutants, with the exception of 

PM10 and 1-hour ozone. The only area 

designated nonattainment for PM10 in 

New Mexico is Anthony, which is 

located in Dona Ana County, and the 

only area designated nonattainment for 

the 1-hour ozone NAAQS is Sunland 

Park, which is also located in Dona Ana 

County.5

In EPA’s technical review of New 

Mexico’s submitted SIP revisions, as 

further discussed in Section III.B of this 

preamble, and the TSD, we evaluate 

each revision against the applicable 

federal requirements and regulations. 


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6Subparts I, II, III, and V were approved by EPA 

on September 26, 1997 (62 FR 50518), effective 

November 25, 1997. 

7We are only reviewing and proposing action on 

the revisions to Part 72 in this action. The 

underlying regulations and program in Part 74 were 

not included, and are substantively not required to 

be evaluated, in the SIP revisions EPA is evaluating 

in this rulemaking. 

8Historical NNSR permit issuance data was 

provided via electronic email dated November 7, 

2012, from Ted Schooley, NMED, to Ashley Mohr, 

EPA, Region 6. 

9Historical new MNSR permit issuance data was 

provided via electronic mail dated November 2, 

2012, from Kerwin Singleton, NMED, to Ashley 

Mohr, EPA, Region 6. 

B. Technical Review of New Mexico’s 

SIP Revision Submittals 

The provisions found in Part 72 are 

divided into five subparts. Four of the 

five subparts contain provisions that are 

currently approved into the New 

Mexico SIP, with Subpart IV 

(20.2.72.400 NMAC—20.2.72.499 

NMAC), which relates to Permits for 

Toxic Air Pollutant Emission, being 

outside of the scope of the New Mexico 

SIP.6 The remaining four SIP-approved 

subparts are as follows: Subpart I 

(20.2.72.100 NMAC—20.2.72.199 

NMAC)—General Provisions, Subpart II 

(20.2.72.200 NMAC—20.2.72.299 

NMAC)—Permit Processing and 

Requirements, Subpart III (20.2.72.300 

NMAC—20.2.72.399 NMAC)—Source 

Class Permit Streamlining, and Subpart 

V—Appendix. As part of the five SIP 

revision submittals under review in the 

action, changes were made to the 

provisions contained in each of the four 

SIP-approved subparts. As detailed in 

the TSD, the May 29, 1998, November 

6, 1998, April 11, 2002, April 25, 2005, 

and November 2, 2006 SIP submittals 

meet the completeness criteria 

established in 40 CFR 51, Appendix V. 

In addition to the completeness review, 

the revisions contained in the five SIP 

submittals were evaluated against the 

applicable requirements contained in 

the Act and 40 CFR 51. A Section-bySection review showing each proposed 

change made to Part 72 is included in 

the TSD for this proposed action, which 

also includes a summary of the 

revisions made to each specific section 

of Part 72. The following sections of this 

preamble provide a summary of the 

reasoning comprising our evaluation 

used in this rulemaking, specifically for 

those proposed revisions that include 

substantive changes to Part 72. 

1. Submitted Revisions to Section 203— 

Contents of Permit Applications 

40 CFR 51.160 contains federal 

requirements regarding information an 

owner or operator of a new or modified 

source must submit to the State or local 

agency. The current SIP-approved Part 

72 contains requirements regarding 

contents of a permit application that any 

person seeking a permit under 

20.2.72.200(A) NMAC must file with the 

Department. New Mexico has proposed 

several revisions to the required 

contents of permit applications as 

specified in Section 203 in the May 29, 

1998 and April 11, 2002 SIP revision 

submittals. In addition to formatting, 

clarification, and other non-substantive 

changes detailed in the TSD, these 

revisions include substantive changes 

that add to existing SIP-approved 

requirements. These changes include 

the addition of provisions related to the 

changing, supplementing, or correcting 

a previously submitted permit 

application. The revisions also include 

the provision of additional requirements 

tied to the existing Public Service 

Announcement requirements for permit 

applicants. Because the revisions to the 

current SIP-approved Section 203 

include additional requirements for 

permit applicants with respect to the 

contents of permit applications that 

were not present in the current SIP, we 

propose to approve these revisions into 

the New Mexico SIP as meeting 

applicable federal requirements, 

including 40 CFR 51.160. 

2. Submitted Revisions to Section 207— 

Permit Decisions and Appeals 

Section 207 of the currently approved 

SIP includes procedural requirements 

regarding permit and permit revision 

issuance by the Department, and 

petition for hearing and appeal 

procedural requirements for applicants 

adversely affected by a permit decision 

by the Department. The May 29, 1998 

and April 11, 2002 SIP revisions include 

clarifying language, formatting changes, 

and other non-substantive changes to 

Section 207, which are further detailed 

in the TSD. The May 29, 1998 SIP 

revision also added language to change 

the applicability of Section 207’s 

requirements regarding the 

Department’s completeness 

determination and time frame within 

which the Department must take action 

on a permit application to Significant 

permit revisions, rather than all permit 

revisions. This change reflects the tiered 

permit revision approach adopted by 

New Mexico under the newly added 

Section 219, and that approach is 

further discussed in Subsection III.B.6 

of this preamble. 

The submitted Section 207 

requirements, in part, specify numbers 

of days within which the Department 

shall either grant, grant subject to 

conditions, or deny a permit or permit 

revision after the Department deems a 

permit application administratively 

complete. For permit applications that 

are subject to the PSD requirements of 

Part 74, the April 11, 2002 SIP revision 

reduced the time for the Department’s 

action from 240 days to 180 days.7

Section 165(c) of the CAA requires that 

any completed PSD permit application 

shall be granted or denied no later than 

one year after the date of filing of such 

completed application. The reduction of 

time for the Department’s action on a 

PSD permit application from 240 days 

to 180 days thus still complies with 

federal requirements to act on such a 

permit within one year after the date of 

filing of a completed application. 

The April 11, 2002 SIP revision 

reduced the number of days within 

which the Department must take action 

upon a preconstruction permit 

application that is not subject to the 

PSD requirements of Part 74 from 180 

days to 90 days. This reduction applies 

to both Part 79 NNSR and Part 72 MNSR 

permits. NMED has been implementing 

this reduction in time for review of 

NNSR permit applications for over 10 

years. NMED has issued zero (0) new 

NNSR permits between 1995 and 2012.8

Similarly, NMED has been 

implementing this reduction in time for 

the Department’s review of Minor NSR 

permits for over 10 years. NMED has 

issued approximately 673 new MNSR 

permits between 1995 and 2012.9 As 

previously discussed, the entire state of 

New Mexico is designated attainment 

for all pollutants, with the exception of 

PM10 and 1-hour ozone. The only area 

designated nonattainment for PM10 in 

New Mexico is Anthony, which is 

located in Dona Ana County, and the 

only area designated nonattainment for 

the 1-hour ozone NAAQS is Sunland 

Park, which is also located in Dona Ana 

County. We propose to find the 

reduction of time for the Department’s 

review of NNSR and Minor NSR permit 

applications has therefore not interfered 

with attainment, reasonable further 

progress, or any other applicable 

requirement of the Act. 

Section 207 of the current SIP also 

specifies the Department shall hold a 

hearing within 90 days upon receipt of 

a timely petition for hearing by a person 

who participated in a permitting action 

before the Department and is adversely 

affected by such permitting action. The 

April 11, 2002 SIP revision changed the 

number of days by which the 

Department must hold a hearing from 90 

days to 60 days. Because this change 

expedites the time frame within which 

the Department must hold a hearing 

upon receipt of a petition by a person 


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10The proposed general construction permitting 

program is similar to the Source Class Permit 

Streamlining program contained in 20.2.72.300— 

20.2.72.399 NMAC of the current New Mexico SIP. 

The key difference is that under the current SIPapproved Source Class Permit Streamlining 

program, each source class permit must be 

approved by EPA into the SIP; whereas, under the 

proposed Section 220 general construction 

permitting program, the underlying provisions for 

the permitting program are SIP approved and the 

individual general permits undergo public 

participation process similar to that required for a 

case-by-case NSR permit. 

11Pages 77 and 78 of hearing transcripts for 

October 17, 1997 Environmental Improvement 

Board Public Hearing. 

adversely impacted by a permitting 

action, this change is one that makes the 

current SIP more stringent. We propose 

to find the revisions to Section 207 

comply with applicable federal 

requirements, including section 110(l) 

of the Act. 

3. Submitted Revisions to Section 216— 

New Applicability Conditions and 

Requirements for Sources Located in 

Nonattainment Areas 

The current SIP-approved Part 72 

contains potentially applicable 

requirements for sources located in 

Nonattainment areas within the Section 

216 provisions. New Mexico proposed 

non-substantive changes to Section 216 

in the April 11, 2002 SIP revision 

submittal that include updates to 

formatting within the rule provisions to 

be consistent with formatting updates 

that were made throughout Part 72 and 

the NMAC. New Mexico also proposed 

changes to this section of Part 72 as part 

of the November 2, 2006 SIP revision 

submittal. These changes to Section 216 

include the non-substantive changes to 

the rule language in Paragraphs (A)(1), 

(A)(2), and (B) to clarify that the 

requirements of this section are 

potentially applicable to both new 

sources and modifications of an existing 

source. This change does not change the 

applicability test or requirements of 

Section 216. The April 11, 2002 SIP 

revision also contained proposed 

changes to add Paragraphs (A)(3) and 

(C) to Section 216. The addition of these 

two sections add a requirement for 

specific stationary sources (i.e., landfills 

and grandfathered sources) that were 

not previously required to obtain a 

preconstruction NSR permit to submit 

an application for a permit under Part 

72, including submittal of a modeling 

analysis to demonstrate compliance 

with the NAAQS. The April 11, 2002 

revisions also incorporate a requirement 

that if those newly permitted sources 

could not show compliance with the 

NAAQS, the source would be required 

to make changes to the facility that 

would result in an overall net air quality 

benefit. These proposed revisions to 

Section 216 result in a more stringent 

SIP than currently approved. Therefore, 

we propose to approve these revisions 

to Section 216 into the SIP by the 

determination that they will not affect 

the ability of the Section, or Part 72 

overall, to meet the federal requirements 

for SIP-approved permitting plans. 

4. Submittal of New Section 220—Minor 

NSR General Permits 

The current SIP-approved provisions 

of part 72 contain provisions for a 

Source Class Permit Streamlining 

program but issuance of such a permit 

required prior EPA approval. New 

Mexico adopted the new Section 220, 

which contains the general 

preconstruction permitting program, 

and submitted this addition in the May 

29, 1998 SIP submittal.10 In New 

Mexico’s proposed general permitting 

program, the underlying provisions 

related to the general permitting 

program are adopted into the state’s 

regulations and are submitted for 

approval into the New Mexico SIP by 

EPA. As a result, if Section 220 is 

approved by EPA into the SIP, the 

general permits that are developed and 

issued by the NMED in accordance with 

the procedures and requirements of 

Section 220 automatically become part 

of the SIP, and therefore, are federally 

enforceable on the basis that they meet 

the SIP-approved requirements of the 

general construction permits program in 

Section 220. 

Paragraph A of Section 220 includes 

the requirements related to the 

procedures to develop and issue a 

general permit. As required in 

20.2.72.220(A)(1) NMAC, a general 

construction permit developed by 

NMED must cover numerous similar 

sources. Sources allowed to register for 

coverage under a general permit must be 

homogenous in terms of operations, 

processes and emissions, subject to the 

same or substantially similar 

requirements, and not subject to caseby-case standards or requirements. 

These requirements satisfy the Federal 

requirement 40 CFR 51.160(a) that the 

SIP has legally enforceable procedures 

that enable the NMED to determine 

whether construction or modification 

will result in a violation of a control 

strategy or interfere with attainment or 

maintenance of a national standard in 

New Mexico or a surrounding state. 

Section 20.2.72.220(A)(2) NMAC 

requires each general permit to describe 

which sources may qualify to register 

under the general permit, which 

satisfies the requirement of 40 CFR 

160(e) which provides that the SIP must 

identify the types and sizes of facilities 

that will be subject to review. NMED 

has indicated in the SIP submittal that 

the permits developed and issued under 

the general construction permitting 

program are for Minor NSR sources.11

40 CFR 51.160 requires that the Minor 

NSR SIP revision submittal be 

enforceable. In particular, 40 CFR 

51.160(a) requires that the SIP revision 

be enforceable in order to ensure that 

the issuance of the Minor NSR permit 

will not cause or contribute to a 

violation of any SIP control strategy and 

will not interfere with attainment and 

maintenance of the NAAQS. The 

September 23, 1987, Memorandum from 

J. Craig Potter, Assistant Administrator 

for Air and Radiation, and Thomas L. 

Adams Jr., Assistant Administrator for 

Enforcement and Compliance 

Monitoring, entitled ‘‘Review of State 

Implementation Plans and Revisions for 

Enforceability and Legal Sufficiency’’ 

provides EPA’s guidance for assessing 

whether a SIP revision submittal is 

sufficiently enforceable. We find that 

the new general construction permitting 

program meets the requirements of 

section 40 CFR 51.160(a), which 

requires that SIP revision submittals be 

enforceable. The submitted regulation 

specifically requires that a general 

permit include monitoring, record 

keeping and reporting (MRR) 

requirements appropriate to the source 

and sufficient to ensure compliance 

with the general construction permit. At 

a minimum, the general permit shall 

specify where the records shall be 

maintained, how long the records shall 

be retained and that all records or 

reports shall be made available upon 

request by the Department. The general 

permit also must contain sufficient 

terms and conditions to ensure that all 

sources operating under a general 

permit will meet all applicable 

requirements under the Federal Clean 

Air Act, e.g., NSPS, NESHAPS, and 

MACT, and all requirements of the SIP. 

Such a general permit is not allowed to 

cause or contribute to air contaminant 

levels in excess of any National or New 

Mexico Ambient Air Quality Standard. 

For these reasons, EPA finds that the 

submitted general construction 

permitting program will ensure 

attainment and maintenance of the 

NAAQS and will prevent violations of 

any of the New Mexico SIP’s control 

strategies. Under this submitted new 

permitting program, the State is able to 

determine if there will be an adverse 

impact on air quality. 

EPA has recognized, for certain 

classes of sources, that it is appropriate 

for states to establish enforceable 


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12Clarification of Intent for Section 220 of 20.2.72 

NMAC—Construction Permits letter dated 

September 19, 2012 from Richard L. Goodyear, PE, 

Bureau Chief, NMED to Mr. Thomas Diggs, 

Associate Director for Air Programs, EPA, Region 6. 13 20.2.72.220(A)(2)(c)(1) NMAC. 

emission limits that serve to limit 

potential to emit through exclusionary 

rules that apply to certain source 

categories. See, Memorandum from D. 

Kent Berry, Acting Director, Air Quality 

Management Division, Office of Air 

Quality Planning and Standards 

(OAQPS) entitled ‘‘Guidance for State 

Rules for Optional FederallyEnforceable Emissions Limits Based on 

Volatile Organic Compound Use,’’ dated 

October 15, 1993; See also, 

Memorandum from John Seitz, Director, 

OAQPS entitled ‘‘Approaches to 

Creating Federally-Enforceable Emission 

Limits,’’ dated November 3, 1993. EPA 

also issued a guidance memorandum 

that provides guidance for addressing 

the minor source status under the Act 

for lower-emitting sources in eight 

source categories. See, April 14, 1998, 

Memorandum entitled, ‘‘Potential to 

Emit (PTE) Guidance for Specific Source 

Categories’’ (hereinafter the 1998 

memoranda). It provides technical 

information useful in devising 

practicable enforceable potential to emit 

for small sources and identifies sources 

that are ‘‘true minors.’’ Although not an 

exclusionary rule, the practicable 

enforceability criteria in the guidance 

memoranda serve as a way to measure 

whether the submitted general 

construction permitting program is 

practicably enforceable and therefore 

can ensure that issuance of the Minor 

general NSR permit will not cause or 

contribute to a violation of any SIP 

control strategy and will not interfere 

with attainment and maintenance of the 

NAAQS. The submitted program clearly 

identifies the category of sources that 

qualify for coverage. The submitted 

program provides that a source notify 

the State of its coverage under the 

program by submitting a complete 

application to register. The NMED shall 

grant registration to a source only if it 

submits a complete application and 

meets the terms and conditions of the 

general permit. The NMED may grant or 

deny an application. 

Based on the requirements contained 

in Section 220 and further clarification 

provided by NMED, a general permit 

could not be developed for use by a 

Major NSR source.12 The state’s 

implementation of the general 

permitting program since the state 

adopted the Section 220 provisions is 

consistent with the fact that the general 

permitting program is for Minor NSR 

sources only. Each of the general 

construction permits that New Mexico 

has issued in accordance with Section 

220 includes facility-wide annual 

emission limits that are less than PSD 

permitting thresholds. In addition, 

Paragraph A of Section 220 includes 

provisions that specify what 

requirements must be met for a general 

permit to be issued under Section 220, 

including requirements that the permit 

contain sufficient terms and conditions, 

along with sufficient monitoring, record 

keeping, and reporting requirements, to 

assure that sources authorized via the 

general construction permit will meet 

all applicable requirements under the 

Act, including PSD and NNSR. Since 

these major NSR permitting programs 

require source-specific evaluations as 

part of the permitting process, a general 

permit could not be developed to 

authorize a major NSR source. The 

general permitting program was adopted 

as a Minor NSR preconstruction 

permitting program, and NMED’s 

historical implementation since 

adoption of Section 220 is consistent 

with its intended applicability to Minor 

NSR sources only. 

The provisions contained in 

Paragraph A of Section 220 also address 

public notice requirements for issued 

general permits. 20.2.72.220(A)(1) 

NMAC requires that prior to issuance, 

each general construction permit must 

undergo the same public notice as that 

required for case-by-case permits in 

Section 206. Section 206 public notice 

requirements are discussed in more 

detail in Section III.B.5 of this preamble. 

Paragraph B of Section 220 contains 

procedural requirements that must be 

met if NMED wishes to modify an 

existing general construction permit. 

These modifications are required to 

undergo an additional public notice and 

must include a transition schedule that 

addresses how and when sources that 

are registered under the existing general 

construction permit will be transitioned 

to the requirements contained in the 

modified general construction permit. 

Together with Paragraph A, we 

propose to find the provisions of 

Paragraph B contain requirements that 

satisfy the requirements contained in 40 

CFR 51.160, 51.161, 51.163 related to a 

permitting program having legally 

enforceable procedures, making 

information publicly available, and 

having administrative procedures in 

place to operate the program consistent 

with the previous requirements. The 

addition of Section 220 also does not 

interfere with the Part 72 construction 

permits program ability to meet 

requirements in 40 CFR 51.162 and 

51.164 that are applicable to Minor NSR 

programs, since the addition does not 

impact the identification of the 

responsible agency or the stack height 

procedures. 

Because the revisions to incorporate 

the general permitting program under 

Section 220 would add an alternative 

Minor NSR permitting approach to the 

preconstruction permitting program, 

these proposed revisions must also be 

evaluated to determine if they will 

interfere with attainment or reasonable 

further progress or any other applicable 

requirement of the Act. This evaluation 

is included in the following section of 

this preamble. 

a. 110(l) Analysis for Section 220 

The provisions in Section 220 

establish a general preconstruction 

permitting program that allows NMED 

to develop and issue general permits. 

Minor NSR sources may seek 

authorization under these general 

permits in lieu of case-by-case 

preconstruction permits if they meet the 

requirements of the general permitting 

program and the specific requirements 

of the general construction permit, 

itself. As required by the provisions of 

Section 220, a general construction 

permit issued under Section 220 must 

contain terms and conditions that assure 

that sources authorized via the general 

construction permit will meet all 

applicable requirements under the 

federal act (e.g., PSD, NSPS, NESHAP) 

and will not cause or contribute to an 

exceedance of the NAAQS.13 As stated 

in the May 29, 1998 SIP submittal 

supporting documentation, a general 

construction permit will contain more 

conservative permit conditions and 

more stringent requirements since the 

general permit has to be protective of all 

applicable state and federal 

requirements for each source that may 

seek authorization via the general 

construction permit. Therefore, the 

general construction permits developed 

and issued by NMED are likely to 

contain more stringent permit 

conditions for a given source than 

would be included in a case-by-case 

permit issued for that same source. 

Section 220 also identifies procedures 

for existing general construction permits 

to be modified by NMED. This 

modification procedure allows NMED to 

update the general permit conditions if 

they determine that more stringent 

conditions are necessary or to account 

for new state or federal requirements. 

Under the general preconstruction 

permitting program established in 

Section 220, each source registration 

under a general permit requires review 

and approval by NMED prior to 


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14Public Notice for Minor Source New Source 

Review letter dated November 7, 2012, from Dave 

Martin, Cabinet Secretary, NMED, to Mr. Ron Curry, 

Regional Administrator, EPA, Region 6. 

15Copies of public notices were requested via 

letter from Mr. Thomas Diggs, Associate Director for 

Air Programs, EPA, Region 6 to Mr. Richard 

Goodyear, PE, Bureau Chief, NMED on September 

7, 2012. NMED responded to EPA’s request via 

letter dated September 13, 2012 from Mr. Goodyear, 

NMED, to Mr. Diggs, EPA, and agreed to provide 

copies of the notices to EPA. Copies of these letters 

and all others referenced in this proposal are in the 

docket for this rulemaking. 

construction, as well as, a separate 

public notice of each source registration. 

The public notice provisions require the 

source to notify the public that the 

source is seeking authorization under a 

general construction permit. NMED has 

been utilizing the general 

preconstruction permitting program 

based on the provisions in Section 220 

since the state adoption of those 

provisions in 1998 without any 

indication that the implementation of 

this Minor NSR program has interfered 

with attainment or reasonable further 

progress. 

Based on the reasons discussed above, 

we do not believe that the addition of 

the general preconstruction permitting 

provisions contained in Section 220 will 

interfere with attainment or reasonable 

further progress or any other applicable 

requirement of the Act. Our evaluation 

of the SIP revision submittals related to 

Section 220, which are under review in 

this action, demonstrates compliance 

with section 110(l) of the CAA and 

provides further basis for proposed 

approval of this SIP revision. 

5. Submitted Revisions to Section 206— 

Public Notice and Participation for 

Minor NSR 

Prior to the revisions contained in the 

April 11, 2002 SIP submittal, NMED 

under existing SIP-approved Section 

206 was required to publish in a 

newspaper of general circulation in the 

area closest to the location of the source 

public notice of the permit application 

submitted under part 72 and the 

Department’s preliminary determination 

for a single 45-day comment period. The 

proposed revisions to Section 206 revise 

the public notice procedures so that it 

becomes a two-step process, whereas 

the current SIP public notice procedure 

is a one-step process. Under the 

submitted Section 206 revised 

provisions, NMED publishes in a 

newspaper of general circulation in the 

area closest to the location of the source 

public notice of the permit application. 

The public would then have 30 days to 

express written interest in the permit 

application, whereas under the current 

SIP-approved provisions the public has 

45 days to comment on the permit 

application and the Department’s 

preliminary determination. 

If NMED does not receive any written 

expressions of interest from the public 

on the permit application during the 30- 

day public notice of the permit 

application, the Department will take 

action to issue or deny the permit. 

However, if any person expresses 

interest in writing in the permit 

application during the 30-day public 

notice period, NMED shall notify these 

interested persons of the date and 

location that the Department’s Analysis 

was or will be available. These 

interested people and any other member 

of the public then have 30 days to 

submit written comments on the 

Department’s Analysis. The NMED 

cannot issue the permit until at least 30 

days after the Department’s Analysis is 

available for review. As clarified in the 

Secretary’s November 7, 2012 letter, the 

second 30-day period is triggered for 

members of the public to submit written 

comments on the Department’s 

Analysis, when the State posts notice of 

the availability of the Analysis onto its 

Web site.14

Additionally, New Mexico has 

submitted a SIP revision to the language 

within 20.2.72.206(A)(7) NMAC 

requiring public notices to be sent to the 

Region 6 EPA office, adding language 

directing public notices be sent if 

requested by EPA. 40 CFR 51.161(d) 

requires that a state send a copy of all 

public notices to EPA via the Regional 

Office, without qualifying whether a 

request by EPA is necessary. To ensure 

that all public notices are received by 

EPA pursuant to 40 CFR 51.161(d), 

Region 6 has formally requested copies 

of each public notice be provided to 

EPA.15 Therefore, NMED will provide a 

copy of all public notices for 

construction permits to EPA, and we 

propose to approve 20.2.72.206(A)(7) 

NMAC as consistent with the federal 

requirement in 40.CFR 51.161(d). 

a. 110(l) Analysis for Section 206 

As noted, the proposed revisions to 

Section 206 do result in a reduction in 

the length of the public notice period 

from 45 days to 30 days. This public 

notice period, while reduced from the 

current SIP-approved requirements, is 

equivalent to the federal public 

participation minimum public comment 

period requirements, which requires a 

30-day period for submittal of public 

comment. The proposed revisions also 

require a person to comment in writing 

on the permit application before any 

member of the public can comment on 

the Department’s Analysis. We believe 

that this is a minimal burden placed on 

the public to express written interest on 

the permit application in order to have 

the opportunity to comment on the 

Department’s Analysis. This additional 

requirement does not undermine federal 

public participation requirements. Also, 

the change from 45 days to 30 days for 

public review and comment, while a 

reduction, also meets federal public 

participation minimum public comment 

period requirements. Therefore, we 

propose to approve these revisions into 

the SIP by determining that they will 

not interfere with the ability of the New 

Mexico SIP to meet the applicable 

federal public participation 

requirements, nor will they violate the 

requirements of CAA section 110(l). 

6. Submittal of New Section 219— 

Permit Revisions for Minor NSR 

The current SIP-approved Permit 

Revisions provisions under Section 202 

include general requirements for 

sources seeking permit revisions to 

submit a revision request to NMED, 

which was to include a description of 

the proposed changes and the reasons 

for those changes. The current SIP 

requires that permit revisions with 

associated increases in permitted 

emission limits are processed in 

accordance with public notice, review, 

and hearing procedures contained in 

Sections 206 and 207 of Part 72. As part 

of the submitted May 29, 1998 SIP 

revisions, the Permit Revisions 

provisions were moved to Section 219 

and were revised to include three 

different tiers of revisions: 

Administrative, Technical, and 

Significant. These Permit Revisions 

provisions were subsequently revised 

and submitted in the April 11, 2002 and 

April 25, 2005 SIP submittals. The 

tiered permit revision process 

established in the May 29, 1998 SIP 

revision submittal was developed by 

New Mexico through a permitting Task 

Force that consisted of NMED staff and 

members of the public, including 

representatives from industry and 

environmental groups. The Task Force 

identified types of Minor NSR permit 

revisions that should qualify for 

streamlined permitting based on their 

anticipated negligible or insignificant 

environmental impacts and established 

the proposed tiered permit revisions 

process for Minor NSR permit revisions. 

The public participation requirements 

for each of the three new types of permit 

revisions were also changed in the May 

29, 1998 SIP revision submittal. The 

associated public notice requirements 

are one of the main differences between 

the separate tiers of permit revisions 

included in Section 219. The Federal 

requirements for Minor NSR permit 


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16For example, under the federal Tribal NSR 

regulations, EPA did not require permits for sources 

with emissions below ‘‘de minimis’’ levels, and for 

sources in ‘‘insignificant source categories’’. 76 FR 

at 38755. In sum, under these Tribal NSR 

regulations, some sources are not required to obtain 

permits, and have no public notice requirements. 

17See Ala. Power Co. v. Costle, 636 F.2d 323 

(DCCir. 1979). 

18The incorporation of the Paragraph B exempted 

sources into an existing permit is an administrative 

action and does not change the exempt status of 

these sources. These Section 202 Paragraph B 

exempt sources remain exempt from Minor NSR 

permitting requirements and their incorporation 

into an existing permit does not result in an 

increase in permitted emission rates or change a 

term or condition of the existing permit. 

applications and public notice 

requirements are at 40 CFR 51.160 and 

161. These requirements establish the 

minimum requirements for 

approvability of a state’s Minor NSR 

SIP, which a state develops to prevent 

construction and modification of 

stationary sources from interfering with 

an area’s ability to achieve compliance 

with a NAAQS. 

These requirements generally require 

30-day public review for all sources 

subject to the Minor NSR; however, 

these requirements also allow a State to 

identify the types and sizes of facilities, 

buildings, structures, or installations, 

which will require full preconstruction 

review by justifying the basis for the 

State’s determination of the proper 

scope of its program.16 Importantly, our 

decision to approve a State’s scope of its 

Minor NSR program must consider the 

individual air quality concerns of each 

jurisdiction, and therefore will vary 

from state to state. 

New Mexico’s submitted rules create 

tiered, public notice requirements for 

the three types of permit revisions. New 

Mexico justified its approach for permit 

revision applications using de minimis 

principles like those established in 

Alabama Power.17 A Significant permit 

revision will have the same public 

notice requirements as an application 

for a new minor source. The submitted 

New Mexico rules generally provide 

that all new Minor NSR permit 

applications and all Minor NSR 

Significant permit revision applications 

will go through public notice consistent 

with federal requirements at 40 CFR 

51.160 and 51.161. Under the submitted 

rules, Administrative permit revisions 

do not have any associated public notice 

requirements. Meanwhile, the submitted 

Technical permit revisions require that 

the applicant conduct a reduced public 

notice, as compared with the full notice 

required for new Minor NSR permits 

and Significant permit revisions. EPA 

recognizes a State’s ability to tailor the 

scope of its Minor NSR program as 

necessary to achieve and maintain the 

NAAQS. As documented in the State’s 

SIP revision submittal and subsequent 

submission of supporting information, 

New Mexico justified the scope of its 

regulatory program, and thus the permit 

applications for which full public 

review is necessary, using de minimis 

principles like those established in 

Alabama Power to identify permit 

revisions that are not environmentally 

significant. 

EPA’s evaluation of the 

environmental significance of each 

permit revision tier and its associated 

public participation requirements are 

discussed in the following subsections 

and the TSD. The following subsections 

and TSD also discuss the State’s 

analysis and supporting documentation 

regarding how the permitting actions 

qualifying as Administrative and 

Technical permit revisions were chosen 

and why the Department finds that 

these permit actions qualify for a more 

streamlined permitting process because 

of their environmental insignificance. 

a. Administrative Permit Revisions 

NMED established Administrative 

permit revisions that are limited to 

those actions that are listed below that 

do not have any associated increases in 

permitted emissions, and a permittee 

may obtain such a revision for an 

existing source without undergoing 

preconstruction permitting 

requirements under Part 72. 

Administrative permit revisions do not 

have applicable filing or permit fees 

under Part 75 and are also not subject 

to the public notice requirements 

contained in either Section 203 or 

Section 206. Administrative permit 

revisions are limited to the following 

permit actions that are considered to be 

administrative changes: 

• Correction of typographical errors, 

• Change in administrative 

information (e.g., change in owner, 

facility address, or contact phone 

number), 

• Incorporation of the retirement of 

permitted source or the closing of a 

facility, 

• Incorporation of the deletion of a 

proposed source(s) that was not 

constructed or will not be built, or 

• Incorporation of Section 202 

Paragraph B exempted sources.18

Because these permit revisions do not 

have any associated increases in 

permitted emissions, they would not be 

required to undergo the preconstruction 

permitting requirements under Part 72 

to receive a permit revision. Under the 

new submitted SIP rule, Administrative 

permit revisions now require a certified 

written notification of the revision be 

submitted by the applicant to NMED. 

Administrative revisions become 

effective upon receipt of the notification 

by NMED. NMED is not required to 

reissue the permit to incorporate an 

Administrative permit revision. The 

revised SIP rule is more stringent than 

the current SIP with respect to requiring 

certified written notification of the 

Administrative revision to be submitted 

by the applicant to NMED. 

Under the proposed SIP revisions, 

Administrative permit revisions are 

exempt from all Minor NSR public 

participation requirements under Part 

72. As documented in the SIP revision 

submittals, the permit revisions allowed 

under the Administrative revision 

provisions are limited to those permit 

changes that are administrative in 

nature and do not result in a change to 

any permit term or condition and do not 

have any associated increases in 

permitted emission rates. Therefore, the 

Administrative permit revisions are 

truly de minimis in nature, and we 

propose to find that New Mexico 

provided an adequate demonstration 

and justification to show that their 

proposed Administrative permit 

revisions provisions meet 40 CFR 

51.160(e) and 161. 

b. Technical Permit Revisions 

NMED also established Technical 

permit revisions in the proposed SIP 

revisions that include the following 

changes to a permit: 

• Incorporate changes to monitoring, 

recordkeeping, or reporting 

requirements that do not reduce the 

enforceability of the permit, 

• Incorporate the addition of permit 

conditions on sources that existed on 

August 31, 1972, and have been 

operated regularly since, 

• Like kind replacement of permitted 

equipment that meets the specific 

requirements listed in 

20.2.72.219(B)(1)(d) NMAC, 

• Incorporate terms and conditions in 

the permit for the purpose of reducing 

the potential emission rate of a unit or 

source (e.g., cap on hours or 

throughputs), 

• Incorporate addition of new 

equipment with potential emission rate 

no more than 1 pound per hour (4.38 

tons per year, assuming continuous 

operation for 8,760 hours per year) for 

any NAAQS pollutant or any VOC, 

• Revision of permitted emission 

limit based on initial compliance testing 

results that meets the specific 

requirements listed in 

20.2.72.219(B)(1)(e) NMAC, and 

• Incorporate the addition of, or 

substitution of, a different type of air 


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19Technical permit revisions are not subject to 

public notification requirements under Paragraphs 

1, 4 and 5 of Subsection B of 20.2.72.203 NMAC, 

and 20.2.72.206 NMAC. However, applicant’s 

requesting a Technical permit revision must still 

meet the public notice requirements contained in 

Paragraphs 2 and 3 of 20.2.203 NMAC. 

20 20.2.72,203(B)(1) and (2) NMAC require that 

the applicant’s public notice be: (1) Provided by 

certified mail, to the owners of record, as shown in 

the most recent property tax schedule, of all 

properties: (a) Within one hundred (100) feet of the 

property on which the facility is located or 

proposed to be located, if the facility is or is 

proposed to be located in a Class A or Class H 

county or a municipality with a population of more 

than two thousand five hundred (2500) persons; or 

(b) within one-half (1⁄2) mile of the property on 

which the facility is located or is proposed to be 

located if the facility is or will be in a county or 

municipality other than those specified in Subparagraph (a) of Paragraph 1 of Subsection B of 

20.2.72.203 NMAC; and (2) provided by certified 

mail to all municipalities and counties in which the 

facility is or will be located and to all 

municipalities, Indian tribes, and counties within a 

ten (10) mile radius of the property on which the 

facility is proposed to be constructed or operated. 

21Additional historical Technical permit 

revisions data was provided via electronic mail 

dated November 2, 2012, from Kerwin Singleton, 

NMED, to Ashley Mohr, EPA, Region 6. 

pollution control equipment with an 

increase in potential emission rate no 

more than 1 pound per hour (4.38 tons 

per year, assuming continuous 

operation for 8,760 hours per year) for 

any NAAQS pollutant or total VOCs. 

The Technical permit revisions 

established under the proposed New 

Mexico SIP revisions are not required to 

meet the full public participation 

requirements under Part 72.19 Under the 

new submitted Section 219, Technical 

permit revisions, like new permit 

applications and Significant permit 

revision applications, the applicant still 

is required to publish a newspaper 

notice of general circulation in each 

county in which the source is proposing 

to construct or modify. This newspaper 

notice shall contain the following: 

1. The applicant’s name and address, 

together with the names and addresses 

of all owners or operators of the facility 

or proposed facility; 

2. The actual or estimated date that 

the application was or will be submitted 

to the Department; 

3. The exact location of the facility or 

proposed facility; 

4. A description of the process or 

change for which a permit is sought, 

including an estimate of the maximum 

quantities of any regulated air 

contaminant the source will emit after 

proposed construction is complete or 

permit is issued; 

5. The maximum and standard 

operating schedules of the facility after 

completion of proposed construction or 

permit issuance; and 

6. The current address of the 

Department to which comments and 

inquiries may be directed. 

The applicant also is still required to 

provide certified mail notices of the 

proposed Technical permit revision to 

nearby municipalities, Indian tribes, 

and counties.20 Public participation 

requirements for Technical permit 

revisions also allow for NMED to hold 

a public meeting in response to 

significant public interest in the 

proposed permit revision. What is no 

longer required is that the applicant (1) 

provides certified mail notices to 

owners of all properties within specified 

distances; (2) post signs of the notice in 

four publicly accessible places; or (3) 

submit a public service announcement 

to at least one radio of TV station that 

serves the area where the source is 

located. NMED is not required to 

publish a newspaper notice that 

includes its preliminary intent to issue 

the permit if the construction or 

modification requested in the 

application will comply with air quality 

requirements, including ambient 

standards. 

The applicant is required to file a 

certified written notification of the 

proposed Technical revision to NMED. 

NMED has 30 days after the receipt of 

a complete application to approve or 

deny the Technical permit revision or 

inform the applicant that the Technical 

permit revision request must be 

‘‘bumped up’’ and resubmitted as a 

Significant permit revision requiring the 

revision to undergo full public 

participation. The Technical permit 

revision becomes effective upon written 

approval from NMED, and NMED is 

required to attach the Technical permit 

revision to the existing permit. 

While the Technical permit revisions 

are exempt from a portion of the public 

participation requirements, within the 

scope of New Mexico’s revised rules, 

the thresholds do not affect any part of 

the technical review of these permit 

revision applications, including a 

requirement that the applicant 

demonstrate that the proposed 

modification will not result in allowable 

emissions that could contribute to an 

exceedance of the NAAQS. 

New Mexico determined that 

revisions allowed under the Technical 

permit revisions provisions were 

limited to permit revisions that either 

have no associated increases in 

emissions or associated emissions 

increases that are insignificant. The first 

four permit actions listed previously 

that qualify as Technical permit 

revisions do not have any associated 

increases in permitted emission rates. 

Therefore, similar to the Administrative 

permit revisions, these four types of 

Technical permit revisions are truly de 

minimis in nature. Therefore, similar to 

our determination for Administrative 

permit revisions, we propose to find 

that New Mexico provided an adequate 

demonstration and justification to show 

that these four types of Technical permit 

revisions provisions that are excluded 

from the full public participation 

requirements are environmentally 

insignificant and therefore satisfy the 

provisions of 40 CFR 51.160(e) and 161. 

The three remaining types of Technical 

permit revisions are limited to permit 

revisions that are expected to be 

environmentally insignificant, either 

because of the limits placed on the 

associated emissions increases or 

because the limited subcategory of 

permit revisions, which represent a 

small subset of the permitting universe 

that are allowed by the Technical 

revisions. Two of the remaining 

Technical revisions are limited to 

permit actions that have associated 

increases in permitted emission rates 

less than 1 pound per hour, which 

equates to 4.38 tons per year assuming 

continuous operation. As documented 

in the SIP revision submittal, an 

emissions increase of this small 

magnitude is not expected to result in 

a significant environmental impact. The 

last Technical permit revision with 

associated increases in permitted 

emissions allows an applicant to request 

up to a 10 percent increase in permitted 

emission rates as a result of initial 

compliance testing. Such adjustments in 

permitted emission rates are limited to 

very specific permit actions, and the 

applicant is required to, as part of the 

Technical permit revision request, 

supply a demonstration that the 

requested increase will not trigger 

additional requirements under any Part 

of the NMAC, including Part 74—PSD, 

and will not result in allowable 

emissions that could contribute to the 

violation of any NAAQS. The provisions 

in Section 219 result in the scope of 

permit revisions that would qualify for 

the 10 percent increase allowance to be 

limited to a small portion of permitting 

actions. New Mexico has reviewed the 

73 Technical permit revisions issued 

since 2009, and none of these Technical 

permit revisions were issued under the 

10 percent increase allowance 

provisions contained in 

20.2.72.219(B)(1)(e) NMAC.21 Therefore, 

based on the insignificant 

environmental impacts associated with 

the Technical permit revisions found in 

20.2.72.219(B)(1)(b) NMAC and 

20.2.72.219(B)(1)(f) NMAC and the 


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22Historical permit revisions data provided via 

Clarification of Exemptions in Section 202 of 

20.2.72 NMAC—Construction Permits letter dated 

September 19, 2012 from Richard L. Goodyear, PE, 

Bureau Chief, NMED to Mr. Thomas Diggs, 

Associate Director for Air Programs, EPA, Region 6. 

23Additional historical Technical permit 

revisions data was provided via electronic mail 

dated November 2, 2012, from Kerwin Singleton, 

NMED, to Ashley Mohr, EPA, Region 6. 

limited scope of permitting actions 

allowed under the Technical revision 

found in 20.2.72.219(B)(1)(e) NMAC, we 

propose to find that New Mexico 

provided an adequate demonstration 

and justification to show that exclusion 

of these remaining three types of 

Technical permit revisions provisions 

from the full public participation 

requirements are environmentally 

insignificant and therefore satisfy the 

provisions of 40 CFR 51.160(e) and 161. 

c. 110(l) Analysis for Technical 

Revisions 

As noted, the proposed revisions to 

add Section 219 and establish a tiered 

permit revisions approach for Minor 

NSR modifications result in a reduction 

of public notice requirement for a 

portion of the modifications listed as 

Technical permit revisions. Similar to 

the Administrative permit revisions, 

most of the permit actions that qualify 

as Technical permit revisions do not 

have associated increases in permitted 

emission limits. Under the new 

provisions found in Section 219, these 

Technical permit revisions are required 

to conduct a reduced public notice that 

requires the applicant provide notice via 

certified mail to specific persons and via 

a published newspaper notice. This 

public notice is reduced compared to 

the public notice required for 

Significant permit revisions, but is more 

stringent than the current SIP 

requirements for revisions with no 

associated increases in permitted 

emissions, which include a requirement 

for public notice only for those permit 

revisions that include an increase in a 

permitted emission limit. Therefore, for 

those Technical permit revisions which 

do not have associated increases in 

permitted emission limits, the proposed 

revisions to the New Mexico SIP result 

in additional public notice requirements 

that are not included in the current SIP. 

The three permit actions identified as 

Technical permit revisions in 

20.2.72.219(B)(1)(b) NMAC, 

20.2.72.219(B)(1)(e) NMAC, and 

20.2.72.219(B)(1)(f) NMAC do include 

associated increases in permitted 

emission limits. Two of these permit 

revisions allow only for small increases 

in permitted emission rates (1 pound 

per hour, which corresponds to 4.38 

tons per year assuming continuous 

operation). The remaining permit action 

that qualifies as a Technical permit 

revision having an associated increase 

in emission limitations described in 

20.2.72.219(B)(1)(e) NMAC has other 

requirements that must be met by the 

permit revision action that ensure that 

the revision will not contribute to a 

NAAQS violation. For example, the 

applicant must demonstrate that the 

increase in permit emissions limits 

being proposed as a result of stack 

testing will not result in a new 

allowable emission limit in the permit 

that would contribute to a violation of 

the NAAQS. These revisions, like all 

other Technical permit revisions, will 

undergo review by NMED during which 

the Department will confirm that the 

revision meets the applicable 

requirements of Section 219 to qualify 

for a Technical permit revision and 

determine if the revision should be 

issued, denied, or ‘‘bumped up’’ to a 

Significant permit revision. Since 

Technical permit revisions have a 

required public notice component, the 

public will be notified of the proposed 

revision and will have the opportunity 

to request a public meeting if they have 

significant questions or concerns 

regarding the proposed permit revision. 

Since adopting the tiered permit 

revisions approach in 1998, New 

Mexico has issued 2,055 Administrative 

permit revisions, 234 Technical permit 

revisions, and 482 Significant permit 

revisions in accordance with the Section 

219 provisions. NMED’s 

implementation of the tiered permit 

revision program, which allows for 

reduced public notice for 

Administrative and Technical revisions, 

has not resulted in a measured 

exceedance of the NAAQS and has not 

shown any interference with reasonable 

further progress in the state.22

Furthermore, a review of the Technical 

permit revisions issued in the last three 

calendar years (2009–2011) shows that 

the total annual increases in permitted 

emissions is less than 7 tons per year for 

all NAAQS pollutants for each of the 

years.23 In fact, most of the pollutants 

show no change or an overall decrease 

in annual emissions as a result of the 

Technical permit revisions issued 

during a given calendar year. This 

historical look back of the New Mexico 

preconstruction permitting program is 

consistent with our expectation that the 

tiered permit revision program and 

associated tiered public notice 

requirements will not have adverse 

impacts on air quality that interfere with 

attainment or reasonable further 

progress or any other applicable 

requirement of the Act. 

Based on the reasons discussed above, 

we do not believe that the addition of 

Technical permit revisions to the tiered 

approach in Section 219, will interfere 

with attainment or reasonable further 

progress or any other applicable 

requirement of the Act. We believe that 

New Mexico provided a demonstration 

that adequately justifies the scope of 

activities that require full review with 

public participation, because it excludes 

Technical permit revisions that have 

associated environmental impacts that 

are either de minimis or 

environmentally insignificant, using de 

minimis principles like those 

established in Alabama Power to 

identify permit revisions that are not 

environmentally significant. Our 

evaluation of the SIP revision submittals 

related to Section 219, which are under 

review in this action, demonstrates 

compliance with section 110(l) of the 

CAA and provides further basis for 

proposed approval of this SIP revision. 

d. Significant Permit Revisions 

Significant revisions include those 

modifications made at a stationary 

source that either prior to or following 

the modification would result in a 

facility-wide potential emission rate for 

any regulated air contaminant greater 

than 10 pounds per hour or 25 tons per 

year, given that the modification does 

not qualify as a Paragraph A, B, or C 

exemption under Section 202 or an 

Administrative or Technical Revision 

under Section 219. Significant permit 

revisions must follow the same 

permitting procedures and meet the 

same permitting requirements (e.g., 

payment of applicable fees, completion 

of public notice) as those required for 

newly issued Minor NSR permits. The 

permitting requirements for Significant 

permit revisions are no more or less 

stringent than those required for permit 

revisions with an associated increase in 

permitted emission rates under the 

currently approved SIP. Significant 

permit revisions are subject to the same 

submitted public participation 

requirements as those required for 

initial Minor NSR permits, that we are 

proposing to approve. Because the 

associated public participation 

requirements do not undermine the SIP 

revision’s ability to meet section 110(l) 

or any other applicable requirement of 

the Act, we propose to approve 

Significant permit revisions under 

Section 219 into the New Mexico SIP. 


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24The New Mexico SIP at 20.2.72.200(A)(1), (2), 

and (5) specify the emissions thresholds that trigger 

minor preconstruction permitting requirements. 

25See e.g. Montana Air Quality Permits—General 

Exclusions (76 FR 40237, July 8, 2011), West 

Virginia Table 45–13B De Minimis Sources (72 FR 

5932, February 8, 2007). 

26Supporting documentation contained in May 

29, 1998 SIP submittal, specifically the direct 

testimony and public hearing transcript documents. 

Additional clarification also provided via 

Clarification of Exemptions in Section 202 of 

20.2.72 NMAC—Construction Permits letter dated 

September 19, 2012 from Richard L. Goodyear, PE, 

Bureau Chief, NMED to Mr. Thomas Diggs, 

Associate Director for Air Programs, EPA, Region 6. 

27 Information regarding the portion of current 

active emission sources that qualify for the source 

and activity specific exemptions under Section 202 

was provided via electronic mail dated September 

18, 2012, from Kerwin Singleton, NMED, to Ashley 

Mohr, EPA, Region 6. 

7. Submitted Revisions to Section 202— 

New Exemptions for de Minimis 

Sources and Activities From Minor NSR 

Permitting Requirements 

As required by 40 CFR 51.160(e), a 

NSR program, including a Minor NSR 

permitting program, must have 

procedures in place that identify the 

‘‘types and sizes of facilities, buildings, 

structures, or installations which will be 

subject to review.’’ As part of the 

current SIP-approved Part 72 

regulations, all stationary sources with 

emissions in excess of the following 

emissions thresholds are required to 

obtain a construction permit: (1) Any 

person constructing a stationary source 

which has a potential emission rate 

greater than 10 pounds per hour or 25 

tons per year of any regulated air 

contaminant for which there is a 

National or New Mexico Ambient Air 

Quality Standard; (2) Any person 

modifying a stationary source when all 

of the pollutant emitting activities at the 

entire facility, either prior to or 

following the modification, emit a 

regulated air contaminant for which 

there is a National or New Mexico 

Ambient Air Quality Standard with a 

potential emission rate greater than 10 

pounds per hour or 25 tons per year and 

the regulated air contaminant is emitted 

as a result of the modification; and (3) 

Any person constructing a stationary 

source which has a potential emission 

rate for lead greater than 5 tons per year 

or modifying a stationary source which 

either prior to or following the 

modification has a potential emission 

rate for lead greater than 5 tons per 

year.24

Therefore, the current New Mexico 

SIP does exempt constructed stationary 

sources and modifications to an existing 

stationary source with potential 

emissions below these thresholds from 

the Minor NSR permitting requirements. 

These emissions based exemptions are 

the only type of exemptions contained 

in the current SIP for the Minor NSR 

permitting program. 

As part of the May 29, 1998 SIP 

submittal, Paragraphs A, B, and C were 

added to Section 202 containing new 

exemptions from the Minor NSR 

permitting requirements in Part 72. 

These newly proposed exemptions are 

emission source or activity based 

exemptions. The provisions contained 

in these new Paragraphs include a 

listing of the specific types and sizes, 

where applicable, of sources and 

activities that would be exempt from all 

or a portion of the preconstruction 

permitting requirements. Therefore, the 

sources and activities included in 

Paragraphs A, B, and C can be 

commenced or changed without 

obtaining a Minor NSR permit or Minor 

NSR permit revision. The following 

subsections describe the sources and 

emission activities listed in each 

Paragraph and the permitting 

requirements they are exempted from in 

further detail. Because these Paragraphs 

add source and activity specific 

exemptions from preconstruction 

permitting beyond the exemptions 

evaluated for and included in the 

current New Mexico SIP, the following 

subsections also evaluate each new 

Paragraph to determine if the proposed 

exemptions will interfere with 

attainment or reasonable further 

progress or any other applicable 

requirement of the Act pursuant to 

section 110(l). 

a. Paragraph A Exemptions 

Paragraph A includes a list of 

exempted emission sources and 

activities EPA has historically approved 

into state SIPs, finding them to have de 

minimis environmental impacts due to 

their trivial, insignificant nature.25

These emission sources and activities 

include, but are not limited to, those 

relating to office activities such as 

photocopying, residential activity such 

as fireplaces and barbecue cookers, food 

service such as cafeteria activity, and 

maintenance of ground activities such 

as lawn care and pest control (see our 

TSD for a complete list of the Paragraph 

A exemptions). 

b. 110(l) Analysis for Paragraph A 

Exemptions 

NMED provided a summary of 

anticipated impacts on ambient air 

quality for the emission sources and 

activities included in the Paragraph A 

exemptions. For all sources on this list, 

NMED indicated that impacts are 

expected to be non-existent, negligible/ 

insignificant, or less than emissions 

from other sources that are currently 

unregulated.26 NMED’s determination of 

anticipated impacts for these sources is 

consistent with our understanding of 

the environmental insignificance of 

emissions anticipated from these small 

emission sources and activities. In 

addition, NMED has been carrying out 

the MNSR permitting program based on 

the codification of their permitting 

policy since the adoption of the 

Paragraph A permit exemptions in 1998 

without any indication that these permit 

exemptions have interfered with 

attainment or reasonable further 

progress. Specifically, the 

implementation of the Paragraph A 

exemptions has not resulted in a 

measured exceedance of the NAAQS. 

The historical monitoring data is 

consistent with the anticipated impacts 

from these types of emission sources 

and activities being environmentally 

insignificant along with the fact that the 

sources that qualify for exemptions from 

Minor NSR permitting requirements 

make a small portion of the state’s 

emission sources. Based on the current 

number of active emission sources in 

the state of New Mexico, NMED 

estimates that the portion of emission 

sources that qualify for exemptions 

under Section 202, including the 

Paragraph A exemptions, accounts for 

less than ten percent (10%) of the total 

number of active emission sources in 

the state.27 Based on the supporting 

information and historical look back 

regarding these types of emission source 

and activity specific exemptions in 

other SIPs, EPA proposes to approve 

Paragraph A of Section 202 into the 

New Mexico SIP. 

c. Paragraph B Exemptions 

Paragraph B of Section 202 includes 

the addition of a second list of source 

and activity specific permit exemptions 

for the Minor NSR permitting program. 

Like the Paragraph A emission sources, 

the Paragraph B sources and activities 

are exempted from the Minor NSR 

permitting requirements. However, 

facilities are required to include a listing 

of all Paragraph B exempt sources in 

their permit application. This inclusion 

in the permit application serves as a 

notification to NMED that a Paragraph B 

exempt source is located at a facility. 

NMED can then, based on the 

notification, verify that the source 

qualifies for the permit exemption. For 

cases where a Paragraph B source is 

being added to a permitted facility, the 

owner or operator is required to submit 

a request to NMED requesting an 

Administrative revision to the permit. 

This revision request also serves as a 


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28This activity generally is not considered 

construction or a modification by EPA and not 

required to obtain a minor NSR permit. 

29This activity does not increase emissions and 

therefore generally is not considered construction 

or modification by EPA, requiring a minor NSR 

permit. 

30The applicability test requiring the source to 

obtain a permit due to applicable emission limits 

under NSPS, NESHAP, or other Part under NMAC 

Chapter 2 is found in 20.2.200(A)(3) NMAC. 

31To qualify for the Paragraph C exemptions, 

sources are also required to be included in a Notice 

notification that a Paragraph B source is 

located at a facility and provides NMED 

an opportunity to verify that the source 

qualifies for the claimed exemption. 

Administrative revisions are subject to 

the revised requirements under Section 

219 and were further discussed in 

Subsection III.B.6.a of this preamble. 

The list of exempt sources and 

activities included in Paragraph B also 

includes operational limitations for 

most of the emission sources, which 

serve to minimize the potential impacts 

from these sources and activities on 

ambient air quality. The following is a 

listing of the Paragraph B exemptions, 

including any operational limitations 

contained in the Section 202 provisions: 

1. Fuel burning equipment which is 

used solely for heating buildings for 

personal comfort or for producing hot 

water for personal use and which: 

a. Uses gaseous fuel and has a design 

rate less than or equal to five (5) million 

BTU per hour; or 

b. Uses distillate oil (not including 

waste oil) and has a design rate less than 

or equal to one (1) million BTU per 

hour; 28

2. VOC emissions resulting from the 

handling or storing of any VOC if: 

a. Such VOC has a vapor pressure of 

less than two tenths (0.2) PSI at 

temperatures at which the compound is 

stored and handled; and 

b. The owner or operator maintains 

sufficient record keeping to verify that 

the requirements of Sub-paragraph (a) of 

this paragraph are met; 

3. Standby generators which are: 

a. Operated only during the 

unavoidable loss of commercial utility 

power; 

b. Operated less than 500 hours per 

year; and 

c. Either are: 

i. The only source of air emissions at 

the site; or 

ii. Accompanied by sufficient record 

keeping to verify that the standby 

generator is operated less than 500 

hours per year; 

4. The act of repositioning or 

relocating sources of air emissions or 

emissions points within the plant site, 

but only when such change in physical 

configuration does not increase air 

emissions or the ambient impacts of 

such emissions; 29

5. Any emissions unit, operation, or 

activity that has a potential emission 

rate of no more than one-half (1⁄2) ton 

per year of any pollutant for which a 

National or New Mexico Ambient Air 

Quality Standard has been set or onehalf (1⁄2) ton per year of any VOC. 

Multiple emissions units, operations, 

and activities that perform identical or 

similar functions shall be combined in 

determining the applicability of this 

exemption; 

6. Surface coating of equipment, 

including spray painting, roll coating, 

and painting with aerosol spray cans, if: 

a. The potential emission rate of VOCs 

do not exceed ten (10) pounds per hour; 

b. The facility-wide total VOC content 

of all coating and clean-up solvent use 

is less than two (2) tons per year; and 

c. The owner or operator maintains 

sufficient record keeping to verify that 

the requirements in Sub-paragraphs (a) 

and (b) of this paragraph are met; 

7. Particulate emissions resulting from 

abrasive blasting operations, if: 

a. Blasting operations are entirely 

enclosed in a building; and 

b. No visible particulate emissions are 

released from the building. 

d. 110(l) Analysis for Paragraph B 

Exemptions 

Similar to that of the analysis 

provided for Paragraph A sources, 

NMED provided an analysis of the 

anticipated impacts on ambient air 

quality for the sources contained in 

Paragraph B of Section 202. Emissions 

estimates were provided for sources 

excluded under Paragraph B, Subparagraphs 1, 2, 4, 5, 6 and 7. All of the 

emissions estimates provided for the 

Paragraph B sources in the SIP submittal 

are less than 5.5 tons per year. NMED 

did not provide specific emissions 

information for standby generators, 

which are found under Sub-paragraph 3 

of the Paragraph B exemptions in 

Section 202. However, standby 

generators only qualify for the 

Paragraph B exemptions if they are 

operated only during periods of 

unavoidable loss of commercial utility 

power and operate less than 500 hours 

per year. Paragraph B also requires that 

for those sources located at a site with 

other air emission sources, the facility 

must maintain records to verify 

operating hours below 500 hours. Based 

on the limitations on the annual hours 

of operation for the exempt standby 

generators, the expected annual 

emissions from these types of sources is 

expected to be of similar magnitude as 

those emissions resulting from the other 

Paragraph B exempted sources, i.e., less 

than 5.5 tons per year. The provisions 

under Section 202 also include similar 

operational restrictions for other 

exempted sources under Paragraph B 

that minimize the potential impacts 

from these exempted emission sources. 

As indicated in the state’s analysis, the 

emissions resulting from the Paragraph 

B exempted sources are not expected to 

have adverse impacts on air quality. 

Furthermore, Section 202 requires that 

applicants report the presence of the 

Paragraph B exempted sources on 

permit applications so that the 

Department can verify that the sources 

meet the requirements under this 

Paragraph and qualify as a Paragraph B 

exempted sources, and thus will not 

adversely impact air quality. 

In addition to the emissions estimates 

information provided by New Mexico, 

NMED has been carrying out the Minor 

NSR permitting program allowing for 

sources and activities listed in 

Paragraph B to be exempt from a portion 

of the preconstruction permitting 

requirements since the adoption of the 

permit exemptions in 1998 without any 

indication that these permit exemptions 

have interfered with attainment or 

reasonable further progress. As 

previously stated, NMED has reviewed 

the currently active emission sources 

contained in the state’s permitting 

database to determine the number of 

documented sources that qualify for 

exemptions under Section 202. NMED 

has determined that Section 202 

exempted sources, including Paragraph 

B sources, account for less than 10 

percent of the total number of currently 

active emission sources. Based on the 

supporting information and historical 

look back data regarding these emission 

source and activity specific exemptions, 

EPA proposes to approve Paragraph B of 

Section 202 into the New Mexico SIP. 

e. Paragraph C Exemptions 

20.2.72.200(A)(3) NMAC of the 

current SIP requires sources that are 

subject to the applicable requirements of 

NSPS, NESHAP, or other emission 

limitation related requirements of 

another Part under Chapter 2 of NMAC 

to obtain a preconstruction permit 

under Part 72, regardless of the source’s 

potential to emit. The submitted 

Paragraph C exemption under Section 

202 exempts from Minor NSR 

permitting requirements under Part 72 

these sources with potential emission 

rates less than 25 tons per year or 10 lb 

per hour if the only reason permitting 

under Part 72 is triggered is by the fact 

the source is subject to NSPS, NESHAP, 

or another Part under Chapter 2 of 

NMAC.30 31 This exemption only applies 


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of Intent filed under 20.2.73 NMAC (Notice of 

Intent and Emissions Inventory); or to have met the 

notification requirements to which they are subject 

under NSPS or NESHAP. 

32 Information regarding active emission sources 

and the current number of active sources that have 

claimed and/or may have qualified for exemptions 

under Section 202 was provided via Clarification of 

Exemptions in Section 202 of 20.2.72 NMAC— 

Construction Permits letter dated September 19, 

2012 from Richard L. Goodyear, PE, Bureau Chief, 

NMED to Mr. Thomas Diggs, Associate Director for 

Air Programs, EPA, Region 6 letter dated September 

19, 2012, from Mr. Richard Goodyear, NMED, to Mr. 

Thomas Diggs, EPA. 

to the permitting applicability 

requirement found in 20.2.72.200(A)(3) 

NMAC. Therefore, in the event a source 

subject to NSPS, NESHAP, or other Part 

exceeds the permitting applicability 

thresholds, such as the thresholds for 

new Minor NSR sources found in 

20.2.72.200(A)(1) NMAC or Minor NSR 

modifications found 20.2.72.200(A)(2) 

NMAC, then the source would be 

required to be subject to the Minor NSR 

permitting requirements under Part 72. 

New Mexico has also explicitly 

excluded the following NSPS and 

NESHAP sources from claiming the 

exemption under Paragraph C of Section 

202: NSPS Subparts I and OOO and 

NESHAP Subparts C and D. 

f. 110(l) Analysis for Paragraph C 

Exemptions 

Under the current SIP at 

20.2.72.200(A)(3) NMAC, sources 

subject to NSPS, NESHAP, or any other 

New Mexico Air Quality Control 

Regulation which contains emission 

limitations for any regulated air 

contaminant are subject to the Minor 

NSR permitting requirements in Part 72 

regardless of whether their potential to 

emit is less than the 25 tons per year or 

10 lb per hour permitting threshold in 

200.2.72.200(A)(1) NMAC. The 

submitted Paragraph C of Section 202 

includes an exemption for these sources 

from 20.2.72.200(A)(3) NMAC, and thus 

an exemption from the Minor NSR 

permitting requirements in Part 72, if 

they are included in a Notice of Intent 

under Part 73 or have met all applicable 

NSPS and NESHAP requirements, and 

have a potential to emit under 25 tons 

per year or 10 lb per hour. This 

exemption thus is less stringent than the 

requirements of the currently approved 

SIP, and must be evaluated to determine 

whether it would cause interference 

with attainment or reasonable further 

progress. 

NMED indicated in testimony before 

the state Environmental Improvement 

Board that the intent of the current SIP 

approved rule was to use the Part 72 

permit process as a mechanism for 

receiving notification of NSPS, 

NESHAP, or other regulated sources. 

NMED indicated in hearing testimony 

that it is unnecessary for such a source, 

as long as its potential to emit is under 

the 25 tons per year or 10 lb per hour 

Minor NSR permitting thresholds, to 

undergo the entire Part 72 permitting 

program if the Department’s intent— 

notification—is achieved in another 

way. Based on the implementation of 

this preconstruction permitting 

requirement along with the other state 

and federal notification requirements 

applicable to these sources, the 

Department determined that the 

notification requirements found in Part 

73, NSPS, or NESHAP are sufficient for 

these sources with potential emission 

rates less than 25 tons per year or 10 lb 

per hour. Therefore, requiring these 

sources to undergo the entire Part 72 

preconstruction permitting process 

merely to obtain notification of the 

sources’ existence is not necessary, as 

long as, the source complies with the 

Part 73, NSPS, or NESHAP notification 

requirements. EPA finds from NMED’s 

supporting documentation nothing 

indicating these sources with potential 

emission rates less than 25 tons per year 

or 10 lb per hour were permitted for any 

reason other than notification. 

Under the proposed Paragraph C 

exemption, these sources are only 

exempted from the Minor NSR 

permitting requirements in Part 72 and 

are still required to meet all other 

applicable requirements, including 

emissions limitations, testing, 

recordkeeping, and reporting 

requirements. Additionally, this 

exemption only applies to the 

20.2.72.200(A)(3) NMAC applicability 

test, and the source must evaluate the 

permitting applicability requirements 

found in Sub-paragraphs (1), (2), (4), (5), 

and (6) under Paragraph A of Section 

200. Based on NMED’s testimony, EPA 

finds the Paragraph C exemption for 

these sources if their potential to emit 

is under Part 72’s permitting thresholds 

for new Minor NSR sources and Minor 

NSR modifications codifies NMED’s 

original primary purpose behind the 

current SIP—notification—without 

unnecessarily requiring these sources to 

undergo the full Minor NSR permitting 

requirements of Part 72 in order to meet 

that purpose. Because this exemption 

would apply only for those sources with 

a potential to emit below the currently 

SIP approved 25 tons per year or 10 lb 

per hour minor NSR permitting 

thresholds in Part 72, EPA proposes to 

find Paragraph C of Section 202 does 

not interfere with attainment or 

reasonable further progress and approve 

it into the New Mexico SIP. 

g. Portable Source Relocation 

The submitted Section 202 also 

contains provisions related to applicable 

permitting requirements for portable 

sources that are being relocated. These 

provisions were previously contained in 

Paragraph B of Section 202, but were 

moved to Paragraph D based on the 

additions of the source specific 

exemptions in the previous paragraphs. 

As part of the May 29, 1998 SIP 

revisions, clarifying language was added 

to provisions in Paragraph D regarding 

the requirements applicants must meet 

in order to relocate a permitted portable 

source without obtaining a permit 

revision. This SIP revision submittal 

also included the incorporation of 

additional recordkeeping and 

notification requirements that must be 

met in order for the portable source to 

relocate without obtaining a permit 

revision. As compared with the current 

SIP, EPA is proposing to approve these 

revised provisions as they include more 

stringent requirements for portable 

source relocation to meet and qualify for 

an exemption from preconstruction 

permitting. 

h. Additional 110(l) Analysis— 

Historical Look Back 

In addition to the referenced 

supporting documentation regarding the 

Section 202 exemptions included in the 

May 29, 1998 SIP revision submittal, 

NMED also provided data as part of a 

historical look back to document how 

many active emission sources have been 

reported as exempted sources, as well as 

how may active emission sources 

throughout the state may have qualified 

for exemptions from preconstruction 

permitting under Section 202 of Part 72. 

Within the current database of active 

emission sources, there are 493 subject 

items listed as ‘‘Exempt’’ within the 

database. These subject items may 

represent more than one emission 

source at a facility, if the facility has 

multiple units that are the same. In 

addition, the current active emission 

source database included additional 

emission units that may have qualified 

for a permit exemption under Section 

202 and are not listed specifically as 

‘‘Exempt.’’ NMED estimates that the 

total number of emission sources that 

may have qualified for exemptions from 

preconstruction permitting 

requirements is currently more than 

2,000.32 NMED has indicated that over 

the course of a decade since the state 

adopted the Permit Exemptions 

provisions in Section 202, the 

implementation of the Permit 

Exemptions provisions have not 

resulted in a measured exceedance of 


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the NAAQS. EPA finds this data is 

consistent with the supporting 

documentation provided by New 

Mexico in the SIP submittal that stated 

that the anticipated impacts on air 

quality from the sources qualifying for 

exemptions from preconstruction 

permitting requirements under Section 

202 are expected to be insignificant. 

Based on the reasons discussed above, 

we do not believe that the addition of 

the permit exemptions contained in 

Section 202 for minor permit 

modifications will interfere with 

attainment or reasonable further 

progress or any other applicable 

requirement of the Act. Furthermore, it 

is important to note that all of the 

permit exemptions contained in Section 

202 are limited only to the Minor NSR 

permitting requirements contained in 

Sections 200–299 of Part 72. These 

exemptions would not apply to any 

other applicable state or federal 

requirements. The source would still be 

required to meet all other applicable 

state and federal requirements, 

including major NSR permitting 

requirements, NSPS, NESHAPS or 

MACT requirements, and state toxics 

permitting requirements, if applicable. 

The source would also have to comply 

with any control requirements 

developed as part of a SIP control 

strategy, like the control requirements 

applicable to the PM10 nonattainment 

area in Anthony. Our evaluation of the 

SIP revision submittals related to 

Section 202, which are under review in 

this action, demonstrates compliance 

with section 110(l) of the CAA and 

provides further basis for proposing 

approval of this SIP revision. 

IV. Proposed Action 

EPA is proposing an approval of the 

SIP revisions to the Construction 

Permits regulation found in Part 72 that 

were submitted by New Mexico on May 

29, 1998, November 6, 1998, April 11, 

2002, April 25, 2005, and November 2, 

2006, and the letter dated November 7, 

2012 from the Secretary. EPA is 

proposing this action in accordance 

with section 110 of the Act. 

A. What are we not addressing in this 

proposed action? 

EPA is only taking proposed action on 

the severable revisions to Part 72 

contained in the five SIP revision 

submittals listed above that were 

submitted to us for review and 

incorporation into the New Mexico SIP. 

By severable, we mean that the portions 

of the SIP revision submittals relating to 

Part 72 can be implemented 

independently of the remaining portions 

of the submittal, without affecting the 

stringency of the submitted rules. In 

addition, the remaining portions of the 

submittal are not necessary for approval 

of the provisions addressing Part 72. 

The following is a list of other revisions 

contained in the May 29, 1998, 

November 6, 1998, April 11, 2002, April 

25, 2005, and November 2, 2006 

submittals that are not being addressed 

in this proposed action: 

• The November 6, 1998 submittal 

from New Mexico also contained 

revisions to correct errors in 20.2.70

NMAC—Operating Permits. Because 

20.2.70 NMAC is outside the scope of 

the New Mexico SIP, the revisions to the 

Operating Permits provisions were not 

submitted as revisions to the state’s SIP. 

• The April 11, 2002 submittal from 

New Mexico also contained revisions to 

20.2.73 NMAC—Notice of Intent and 

Emissions Inventory Requirements, 

20.2.74 NMAC—Permits—Prevention 

of Significant Deterioration, 20.2.75 

NMAC—Construction Permit Fees, and 

20.2.79 NMAC—Permits— 

Nonattainment Areas. Portions of the 

submittal related to Parts 73, 74, 75, and 

79 have been or will be addressed in 

separate SIP revisions reviews and rule 

actions, as necessary. 

• The April 11, 2002 submittal also 

included documentation related to an 

additional revision to 20.2.72 NMAC 

(filed with the State Records Center on 

February 28, 2001, effective March 30, 

2001), which was submitted to EPA for 

informational purposes only and was 

not submitted for approval under the 

SIP. Therefore, the February 28, 2001 

state adopted revisions to Part 72 are not 

included in this proposed action. 

• The April 25, 2005 submittal from 

New Mexico also contained revisions to 

20.2.66 NMAC—Cotton Gins, 20.2.73

NMAC—Notice of Intent and Emissions 

Inventory Requirements, and 20.2.75

NMAC—Construction Permit Fees. 

Portions of the submittal related to Parts 

66, 73, and 75 have been or will be 

addressed in separate SIP revisions 

reviews and rule actions, as necessary. 

• The November 2, 2006 submittal 

from New Mexico also contained 

revisions to 20.2.3 NMAC—Ambient 

Air Quality Standards, 20.2.70

NMAC—Operating Permits, and 20.2.99

NMAC—Conformity to the State 

Implementation Plan of Transportation 

Plans, Programs and Projects. Portions 

of the submittal related to Parts 3, 70, 

and 99 have been or will be addressed 

in separate SIP revisions reviews and 

rule actions, as necessary. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. See 42 U.S.C. 

7410(k); 40 CFR 52.02(a). Thus, in 

reviewing SIP submissions, EPA’s role 

is to approve state choices, provided 

that they meet the criteria of the Clean 

Air Act. Accordingly, this notice merely 

proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 


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1 73 FR 38372. 

2The members included: BMW Group, Chrysler 

LLC, Ford Motor Company, General Motors, Mazda, 

Mercedes-Benz USA, Mitsubishi, Porsche, Toyota, 

and Volkswagen. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: November 13, 2012. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2012–28910 Filed 11–28–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA 2008–0124] 

RIN 2127–AK13 

Federal Motor Vehicle Safety 

Standards; Windshield Zone Intrusion 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Withdrawal of rulemaking. 

SUMMARY: This document withdraws a 

rulemaking proposal to rescind Federal 

Motor Vehicle Safety Standard (FMVSS) 

No. 219, ‘‘Windshield zone intrusion.’’ 

The agency has determined that there 

are two ongoing regulatory 

developments that could influence 

vehicle designs by putting a premium 

on the use of lighter or less rigid 

materials. These two developments are 

U.S. fuel economy requirements and a 

global technical regulation aimed at 

reducing injuries to pedestrians struck 

by vehicles. As a result, the agency 

believes that vehicle designs with regard 

to the hood and windshield are in a 

state of change and that the implications 

of these developments should be better 

understood before deciding whether to 

rescind FMVSS No. 219. 

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may contact Mr. 

David Sutula, Office of Crashworthiness 

Standards, NHTSA, 1200 New Jersey 

Avenue SE., Washington, DC 20590 

(Telephone: 202–366–3273) (Fax: 202– 

366–2739). 

For legal issues, you may contact Ms. 

Analiese Marchesseault, Office of the 

Chief Counsel, NHTSA, 1200 New 

Jersey Avenue SE., Washington, DC 

20590 (Telephone: 202–366–1723) (Fax: 

202–366–3820). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. NPRM To Rescind FMVSS No. 219 

III. Agency Response to Comments on the 

NPRM 

A. The Changing Vehicle Fleet 

B. Real World Data 

C. Dummy and Air Bag Performance in 

Windshield Zone Intrusion 

D. Industry Burden 

E. Possible Effect of FMVSS No. 219 

Rescission on State Regulation 

IV. Agency Decision To Withdraw the 

Rulemaking 

I. Background 

FMVSS No. 219, ‘‘Windshield zone 

intrusion,’’ provides that a vehicle’s 

hood must not enter a defined zone in 

front of the vehicle’s windshield during 

a full frontal crash test at 48 kilometers 

per hour (km/h) (30 miles per hour 

(mph)). The purpose of the standard is 

to reduce injuries and fatalities that 

result from occupant contact with 

vehicle components, such as the hood, 

that are displaced into the occupant 

compartment through the windshield 

opening or into the zone immediately 

forward of the windshield aperture 

during a frontal crash. 

FMVSS No. 219 specifies a protected 

zone at the daylight opening (DLO) 

portion of the vehicle windshield. The 

protected zone is an area encompassing 

the width of the windshield and that 

protrudes about 76 mm (3 inches) from 

the outer surface of the windshield. In 

a 48 km/h (30 mph) frontal rigid barrier 

crash test, no part of the vehicle from 

outside the occupant compartment, 

except windshield molding and other 

components designed to normally be in 

contact with the windshield, are 

permitted to penetrate the protected 

zone to a depth of more than 6 mm (0.25 

inches) and no such part of a vehicle is 

permitted to penetrate the inner surface 

of that portion of the windshield, within 

the DLO, below the protected zone. 

FMVSS No. 219, which took effect on 

September 1, 1976, applies to passenger 

cars, multipurpose passenger vehicles, 

trucks, and buses with a gross vehicle 

weight rating of 4,536 kilograms (kg) 

(10,000 pounds) or less, except for 

forward control vehicles, walk-in vantype vehicles, or open-body-type 

vehicles with fold-down or removable 

windshields. NHTSA has maintained 

this standard without substantive 

revision since 1976. 

II. NPRM To Rescind FMVSS No. 219 

As part of a periodic review of 

existing vehicle safety regulations to 

determine whether a continuing safety 

need exists for the standard under 

review, NHTSA published a notice of 

proposed rulemaking (NPRM) that 

proposed to rescind FMVSS No. 219 on 

July 7, 2008.1 NHTSA undertakes 

periodic reviews of its regulations 

under, inter alia, the Department’s 1979 

Regulatory Policies and Procedures, 

under Executive Order 12866 

‘‘Regulatory Planning and Review,’’ and 

under section 610 of the Regulatory 

Flexibility Act (5 U.S.C. 501 et seq.). In 

addition, NHTSA conducts reviews 

pursuant to its internal operating 

procedures. During this review process, 

FMVSS No. 219 was identified as a 

standard that could possibly be removed 

as unnecessary. The NPRM tentatively 

concluded that the safety need that 

FMVSS No. 219 addresses was being 

met by FMVSS No. 208, ‘‘Occupant 

crash protection,’’ and FMVSS No. 113, 

‘‘Hood latch system.’’ The NPRM cited 

the improvements made to FMVSS No. 

208 over the years as well as the 

secondary latch position required by 

FMVSS No. 113. Based on the 

performance requirements in FMVSS 

No. 208 and FMVSS No. 113, the agency 

tentatively concluded that FMVSS No. 

219 was no longer necessary. 

Our belief stemmed from the fact that 

FMVSS No. 219 had succeeded in 

virtually eliminating the intrusion of 

vehicle components from outside the 

occupant compartment into the 

windshield. The agency’s analysis of 

FMVSS compliance and New Car 

Assessment Program (NCAP) tests 

indicated there had been no known 

incidents in which a crash tested 

vehicle failed to meet the performance 

requirements in FMVSS No. 219. 

Furthermore, in a preliminary analysis 

of crashes in the National Automotive 

Sampling System (NASS) 

Crashworthiness Data System (CDS), no 

hood intrusions into the areas 

prescribed by FMVSS No. 219 were 

found among full frontal crashes. 

III. Agency Response to Comments on 

the NPRM 

The following organizations 

submitted comments on the NPRM: 

Public Citizen and the Center for Auto 

Safety (CAS) (the two commenters 

submitted joint comments), Advocates 

for Highway and Auto Safety 

(Advocates), the Insurance Institute for 

Highway Safety (IIHS), and the Alliance 

of Automobile Manufacturers 

(Alliance).2 The issues raised include: 

changes in the vehicle fleet, real world 

data, dummy and air bag performance in 


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