Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43149 

Order 13175 does not apply to this 

action. 

Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it 

because it is not an economically 

significant regulatory action based on 

health or safety risks subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997). This SIP disapproval 

under section 110 will not in-and-of 

itself create any new regulations but 

simply disapproves certain state 

requirements for inclusion into the SIP. 

Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not a significant 

regulatory action under Executive Order 

12866. 

National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, Section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through Office of 

Management and Budget, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. EPA believes that 

this action is not subject to requirements 

of section 12(d) of NTTAA because 

application of those requirements would 

be inconsistent with the CAA. 

Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

Executive Order 12898 (59 FR 7629 

Feb. 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

action. In reviewing SIP submissions, 

EPA’s role is to approve or disapprove 

state choices, based on the criteria of the 

CAA. Accordingly, this action merely 

disapproves certain state requirements 

for inclusion into the SIP under section 

110 of the CAA and will not in-and-of 

itself create any new requirements. 

Accordingly, it 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. 

Congressional Review 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. 

A major rule cannot take effect until 

60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

Statutory Authority 

The statutory authority for this action 

is provided by section 110 of the CAA, 

as amended (42 U.S.C. 7410). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

Dated: June 28, 2011. 

Karl Brooks, 

Regional Administrator, Region 7. 

[FR Doc. 2011–17741 Filed 7–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0131, FRL–9317–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

California; Regional Haze State 

Implementation Plan and Interstate 

Transport Plan; Interference With 

Visibility Requirement 

Correction 

In rule document 2011–14479, 

appearing on pages 34608–34611, in the 

issue of June 14, 2011, make the 

following correction: 

On page 34608, in the second column, 

in the Environmental Protection Agency 

document, the subject is corrected to 

appear as above. 

[FR Doc. C1–2011–14479 Filed 7–19–11; 8:45 am] 

BILLING CODE 1505–01–D 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2011–0031; FRL–9440–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Mexico; Prevention of Significant 

Deterioration; Greenhouse Gas 

Tailoring Rule Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the New Mexico 

Environment Department (NMED) to 

EPA on December 1, 2010. This SIP 

revision modifies New Mexico’s 

Prevention of Significant Deterioration 

(PSD) program to establish appropriate 

emission thresholds for determining 

which new stationary sources and 

modification projects become subject to 

New Mexico’s PSD permitting 

requirements for their greenhouse gas 

(GHG) emissions. EPA is fully 

approving New Mexico’s December 1, 

2010, PSD SIP revision because the 

Agency has determined that this PSD 

SIP revision is in accordance with 

section 110 and part C of the Federal 

Clean Air Act and EPA regulations 

regarding PSD permitting for GHGs. 

DATES: This final rule will be effective 

August 19, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2011–0031. All 


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43150 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 

1 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in State 

Implementation Plans; Final Rule.’’ 75 FR 82536 

(December 30, 2010). 

2 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

3 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

4 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

5Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule.’’ 75 

FR 31514 (June 3, 2010). 

6Specifically, by notice dated December 13, 2010, 

EPA finalized a ‘‘SIP Call’’ that would require those 

states with SIPs that have approved PSD programs 

but do not authorize PSD permitting for GHGs to 

submit a SIP revision providing such authority. 

‘‘Action To Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call,’’ 75 

FR 77698 (Dec. 13, 2010). EPA has begun making 

findings of failure to submit that would apply in 

any state unable to submit the required SIP revision 

by its deadline, and finalizing FIPs for such states. 

See, e.g., ‘‘Action To Ensure Authority To Issue 

Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Finding of Failure To Submit State 

Implementation Plan Revisions Required for 

Greenhouse Gases,’’ 75 FR 81874 (December 29, 

2010); ‘‘Action To Ensure Authority To Issue 

Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Federal Implementation Plan,’’ 75 

FR 82246 (December 30, 2010). Because New 

Mexico’s SIP already authorizes New Mexico to 

regulate GHGs once GHGs become subject to PSD 

requirements on January 2, 2011, New Mexico is 

not subject to the proposed SIP Call or FIP. 

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 whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

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 or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area 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, 1190 

St. Francis Drive, Santa Fe, New Mexico 

87502. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning today’s 

final rule, please contact Ms. Melanie 

Magee (6PD–R), Air Permits Section, 

Environmental Protection Agency, 

Region 6, 1445 Ross Avenue (6PD–R), 

Suite 1200, Dallas, TX 75202–2733. The 

telephone number is (214) 665–7161. 

Ms. Magee can also be reached via 

electronic mail at 

magee.melanie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we’’, ‘‘us’’, or ‘‘our’’ is used, we mean 

the EPA. 

Table of Contents 

I. What final action is EPA taking? 

II. What is the background for this action? 

III. What are EPA’s responses to comments 

received on the proposed action? 

IV. Statutory and Executive Order Reviews 

I. What final action is EPA taking? 

EPA is fully approving New Mexico’s 

December 1, 2010, SIP submittal, 

relating to PSD requirements for GHGemitting sources. Specifically, New 

Mexico’s December 1, 2010, proposed 

SIP revision establishes appropriate 

emissions thresholds for determining 

PSD applicability to new and modified 

GHG-emitting sources in accordance 

with EPA’s Tailoring Rule. EPA has 

made the determination that this SIP 

submittal is approvable because it is in 

accordance with the Clean Air Act 

(CAA) and EPA regulations regarding 

PSD permitting for GHGs. 

As explained in our proposed 

approval of the New Mexico December 

1, 2010, SIP revision, 76 FR 20907 

(April 14, 2011), since EPA is finalizing 

its approval of New Mexico’s changes to 

its air quality regulations to incorporate 

the appropriate thresholds for GHG 

permitting applicability into New 

Mexico’s SIP, then paragraph (d) in 

§ 52.1634 of 40 CFR part 52, added in 

EPA’s PSD SIP Narrowing Rule to codify 

the limitation of EPA’s approval of New 

Mexico’s PSD SIP to exclude the 

applicability of PSD to GHG-emitting 

sources below the Tailoring Rule 

thresholds, is no longer necessary. In 

today’s action, EPA is also amending 

§ 52.1634 of 40 CFR part 52 to remove 

this unnecessary regulatory language. 

Today, we are approving the 

December 1, 2010, New Mexico PSD SIP 

revision as we proposed and find that 

the SIP revision complies with section 

110 and part C of the Federal Clean Air 

Act and EPA regulations regarding PSD 

permitting for GHGs. 

II. What is the background for this 

action? 

This section briefly summarizes EPA’s 

recent GHG-related actions that provide 

the background for today’s action. More 

detailed discussion of the background is 

found in the preambles for those 

actions, particularly in the background 

section of what we call the PSD SIP 

Narrowing Rule.1

A. GHG-related Actions 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

distinct from one another, establish the 

overall framework for today’s final 

action on the New Mexico SIP. Four of 

these actions include, as they are 

commonly called, the ‘‘Endangerment 

Finding’’ and ‘‘Cause or Contribute 

Finding,’’ which EPA issued in a single 

final action,2 the ‘‘Johnson Memo 

Reconsideration,’’ 3 the ‘‘Light-Duty 

Vehicle Rule,’’ 4 and the ‘‘Tailoring 

Rule.’’ 5 Taken together and in 

conjunction with the CAA, these actions 

established regulatory requirements for 

GHGs emitted from new motor vehicles 

and new motor vehicle engines; 

determined that such regulations, when 

they took effect on January 2, 2011, 

subjected GHGs emitted from stationary 

sources to PSD requirements; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. EPA took this last 

action in the Tailoring Rule, which, 

more specifically, established 

appropriate GHG emission thresholds 

for determining the applicability of PSD 

requirements to GHG-emitting sources. 

PSD is implemented through the SIP 

system, and so in December 2010, EPA 

promulgated several rules to implement 

the new GHG PSD SIP program. 

Recognizing that some states had 

approved SIP PSD programs that did not 

apply PSD to GHGs, EPA issued a SIP 

call and, for some of these states, a FIP.6

Recognizing that other states had 

approved SIP PSD programs that do 

apply PSD to GHGs, but that do so for 

sources that emit as little as 100 or 250 

tons per year (tpy) of GHG, and that do 

not limit PSD applicability to GHGs to 

the higher thresholds in the Tailoring 

Rule, EPA issued the GHG PSD SIP 

Narrowing Rule. Under that rule, EPA 


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Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43151 

7 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in State 

Implementation Plans; Final Rule.’’ 75 FR 82536 

(December 30, 2010). 

8Tailoring Rule, 75 FR 31,517/1. 

9SIP Narrowing Rule, 75 FR 82,540/2. 

10 Id. at 82,542/3. 

11 Id. at 82,544/1. 

12 Id. at 82,540/2. 

withdrew its approval of the affected 

SIPs to the extent those SIPs applied 

PSD requirements to GHG emissions 

from GHG-emitting sources below the 

Tailoring Rule thresholds. 

B. New Mexico’s Actions 

On June 24, 2010, New Mexico 

provided a letter to EPA, in accordance 

with a request to all States from EPA in 

the Tailoring Rule, with confirmation 

that the State has the authority to 

regulate GHG in its PSD program. The 

letter confirmed that current New 

Mexico rules require regulating GHGs at 

the existing 100/250 tpy threshold, 

rather than at the higher thresholds set 

in the Tailoring Rule because the state 

does not have the authority to apply the 

meaning of the term ‘‘subject to 

regulation’’ established in the Tailoring 

Rule. New Mexico also submitted a 

letter on September 14, 2010, in 

response to the proposed GHG SIP Call, 

again confirming that EPA correctly 

classified New Mexico as a state with 

authority to apply PSD requirements to 

GHGs. The September 14, 2010, letter 

also states that NMED is pursuing 

rulemaking activity to define the terms 

‘‘greenhouse gas’’ and ‘‘subject to 

regulation.’’ See the docket for this 

proposed rulemaking for copies of New 

Mexico’s June 24, 2010, and September 

14, 2010, letters. 

In the PSD SIP Narrowing Rule, 

published on December 30, 2010, EPA 

withdrew its approval of New Mexico’s 

SIP—among other SIPs—to the extent 

that SIP applies PSD permitting 

requirements to GHG emissions from 

sources emitting at levels below those 

set in the Tailoring Rule.7 As a result, 

New Mexico’s current approved SIP 

provides the state with authority to 

regulate GHGs, but only at and above 

the Tailoring Rule thresholds, and thus 

federally requires new and modified 

sources to receive a PSD permit based 

on GHG emissions only if they emit at 

or above the Tailoring Rule thresholds. 

New Mexico has amended its state 

regulations to incorporate the Tailoring 

Rule thresholds, and has submitted the 

adopted regulations as revisions to the 

New Mexico SIP. EPA’s approval of the 

New Mexico revisions will clarify the 

applicable thresholds in the New 

Mexico SIP and incorporate state law 

changes adopted at the local level into 

the federally-approved SIP. 

The basis for this SIP revision is that 

limiting PSD applicability to GHG 

sources to the higher thresholds in the 

Tailoring Rule is consistent with the SIP 

provisions that provide required 

assurances of adequate resources, and 

thereby addresses the flaw in the SIP 

that led to the PSD SIP Narrowing Rule. 

Specifically, CAA section 110(a)(2)(E) 

includes as a requirement for SIP 

approval that States provide ‘‘necessary 

assurances that the State * * * will 

have adequate personnel [and] funding 

‘‘ to carry out such [SIP].’’ In the 

Tailoring Rule, EPA established higher 

thresholds for PSD applicability to 

GHG-emitting sources on grounds that 

the states generally did not have 

adequate resources to apply PSD to 

GHG-emitting sources below the 

Tailoring Rule thresholds,8 and no 

State, including New Mexico, asserted 

that it did have adequate resources to do 

so.9 In the PSD SIP Narrowing Rule, 

EPA found that the affected states, 

including New Mexico, had a flaw in 

their SIPs at the time they submitted 

their PSD programs, which was that the 

applicability of the PSD programs was 

potentially broader than the resources 

available to them under their SIP.10

Accordingly, for each affected state, 

including New Mexico, EPA concluded 

that EPA’s action in approving the SIP 

was in error, under CAA section 

110(k)(6), and EPA rescinded its 

approval to the extent the PSD program 

applies to GHG-emitting sources below 

the Tailoring Rule thresholds.11 EPA 

recommended that States adopt a SIP 

revision to incorporate the Tailoring 

Rule thresholds, thereby (i) assuring that 

under State law, only sources at or 

above the Tailoring Rule thresholds 

would be subject to PSD; and (ii) 

avoiding confusion under the federallyapproved SIP by clarifying that the SIP 

applies to only sources at or above the 

Tailoring Rule thresholds.12

The portions of the submitted SIP 

revision at 20.2.70.7(AL)(3) NMAC and 

20.2.74.7(AZ)(6) NMAC act to limit the 

enforceability of the definition of 

‘‘subject to regulation’’ in the event of 

an adverse federal court determination 

in certain GHG-related matters. EPA 

received a comment regarding the effect 

of such court actions, and now clarifies 

its interpretation of these provisions in 

response. The provisions state that in 

the event of a federal court 

determination that invalidates or 

renders unenforceable the Tailoring 

Rule, ‘‘the definition ‘subject to 

regulation’ shall be enforceable by the 

Department only to the extent that it is 

enforceable by US EPA.’’ EPA reads this 

provision to mean that the state will 

wait for and follow EPA’s interpretation 

of the effect of such a court decision 

regarding the enforceability of these SIP 

revisions by EPA before altering its own 

application of that term. EPA approves 

the SIP on the basis of this 

interpretation. If a court issues such a 

decision, EPA intends to promptly 

describe the impact of the court’s 

decision on the enforceability of its 

regulations. 

III. What are EPA’s responses to 

comments received on the proposed 

action? 

EPA received one comment letter 

from Tri-State Generation and 

Transmission Association, Inc. in 

response to the proposed rulemaking. 

The comment letter is available for 

review in the docket for this 

rulemaking. A summary of the 

comments and EPA’s responses are 

provided below. 

Comment 1: Commenter states that its 

comments pertain to EPA’s proposed 

approval of the PSD portion of the New 

Mexico GHG Tailoring Rule. Commenter 

maintains a policy position opposing 

regulation of greenhouse gas emissions 

under the Clean Air Act, including its 

permitting provisions. The fact that PSD 

and Title V permitting thresholds need 

‘‘tailoring’’ to be appropriate for 

greenhouse gases demonstrates that the 

Clean Air Act is not intended to regulate 

greenhouse gas emissions. 

Response 1: We refer Commenter to 

the ‘‘Tailoring Rule’’ (Prevention of 

Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule; Final 

Rule’’ 75 FR 31514 (June 3, 2010)) as 

well as our proposed rulemaking notice 

at 76 FR 20907 (April 14, 2011) that 

cites to and provides information on our 

national GHG actions and that provides 

the general basis for the regulation of 

GHGs under PSD permitting 

requirements. See footnotes 1–4 at 76 

FR 20908, Footnote 6 at 20909. As we 

have detailed in those notices, EPA 

established that PSD applies to all 

pollutants newly subject to regulation, 

including non-NAAQS pollutants such 

as GHGs, in prior actions, and EPA has 

not re-opened that issue in this 

rulemaking. Accordingly, we do not 

believe these comments are relevant to 

this rulemaking. 

Comment 2: Commenter is mindful of 

the many legal challenges to EPA’s 

authority to regulate GHGs, and is 

concerned about what effect a stay, 

remand, or vacatur of one or all of the 

federal GHG-related rules would have 

on the New Mexico SIP revision. 

Commenter supports inclusion of 


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43152 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 

‘‘enforceability’’ language at 

20.2.70.7(AL)(3) NMAC and 

20.2.74.7(AZ)(6) NMAC. 

Response 2: As discussed above, EPA 

is finalizing its approval of the 

enforceability clause at 20.2.74.7 and 

interprets that clause to indicate that the 

state will wait for and follow EPA’s 

interpretation of the effect of any 

adverse court decision regarding the 

enforceability of these SIP revisions. If 

a court acts adversely, EPA intends to 

promptly describe the impact of the 

court’s decision on the enforceability of 

its regulations. 

Comment 3: Commenter understands 

the importance of having the Tailoring 

Rule amendments in place at the state 

level. It would create an unreasonable 

burden on NMED’s Air Quality Bureau, 

and all permit holders, should it be 

required that GHGs be permitted at the 

100/250 tpy levels. Within that context, 

Commenter remains concerned about 

the practicalities of regulation of GHGs 

via air quality permits. 

Response 3: We refer Commenter to 

our proposal for this final action that 

discusses the basis for a SIP revision 

that limits PSD applicability to GHG 

sources to the higher thresholds in the 

Tailoring Rule. While we appreciate 

Commenter’s general concern about the 

practicalities of regulating of GHGs 

through air quality permits, Commenter 

did not provide any specific examples 

in the record to be able to adequately 

respond to this generalized statement. In 

addition, as discussed above, the 

requirement that sources seek PSD 

permits for GHG emissions was not 

established in this rulemaking, and was 

not reopened in this rulemaking. In fact, 

the State makes clear that GHG PSD 

permitting was required under its SIP 

prior to this rulemaking. We refer 

Commenter to New Mexico’s June 24, 

2010, and September 14, 2010, letters 

(mentioned elsewhere in this notice) 

and that are in the docket for this 

rulemaking. 

Comment 4: Commenter states the SIP 

revision was made in an expedited 

timeframe, despite the fact that NMED, 

through its membership in the National 

Association of Clean Air Agencies 

(NACAA) and NACAA’s December 28, 

2009 letter to EPA about the Tailoring 

Rule, requested that EPA provide more 

time to states to afford consideration of 

the effects of and necessary regulatory 

changes for the implementation of the 

federal Tailoring Rule. EPA’s expedited 

timeframe contributes to regulatory 

uncertainty. 

Response 4: While we hear 

Commenter’s concerns, we do not 

believe the comment is relevant to the 

scope of the action before us and we 

disagree with Commenter. We refer 

Commenter to the proposal for this 

action, which states that New Mexico 

amended its state regulations to 

incorporate the Tailoring Rule 

thresholds and timely submitted the 

state-adopted regulations as revisions to 

the state’s SIP thereby contributing to 

regulatory certainty. 

Comment 5: Commenter states that in 

the state administrative rulemaking 

hearing, several of Commenter’s issues 

were addressed, however 

inconclusively. Since uncertainty 

remains on various issues Commenter 

raised, Commenter re-states some of 

those issues. In short, Commenter raises 

issues related to Best Available Control 

Technology (BACT), New Source 

Performance Standards (NSPS) for GHG, 

Carbon Capture Sequestration (CCS) and 

GHG Reporting and Cap and Trade 

issues. 

Response 5: This current rulemaking 

action concerns whether the regulatory 

revisions relating to PSD requirements 

for GHG-emitting sources that NMED 

submitted to EPA on December 1, 2010, 

that seek to establish the appropriate 

emission thresholds for determining 

PSD applicability to new and modified 

GHG-emitting sources in accordance 

with EPA’s Tailoring Rule, are 

approvable. The above comments raise 

issues that are outside the scope of this 

narrow rulemaking action and that we 

do not believe are relevant to the current 

action. 

IV. 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. 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 action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this 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. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 19, 

2011. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 


jlentini on DSK4TPTVN1PROD with RULES
Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43153 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

and Reporting and recordkeeping 

requirements. 

Dated: June 30, 2011. 

Al Armendariz, 

Regional Administrator, Region 6. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart GG—New Mexico 

■ 2. Section 52.1620 is amended in 

paragraph (c) by revising the entry for 

Part 74 under ‘‘New Mexico 

Administrative Code (NMAC) Title 20— 

Environment Protection Chapter 2—Air 

Quality’’ to read as follows: 

§ 52.1620 Identification of plan. 

* * * * * 

(c) * * * 

EPA APPROVED NEW MEXICO REGULATIONS

State citation Title/subject 

State 

approval/ 

effective date 

EPA approval date Comments 

New Mexico Administrative Code (NMAC) Title 20—Environment Protection Chapter 2—Air Quality 

*******

Part 74 .............. Permits—Prevention of Significant Deterioration.1/1/2011 7/20/2011 [Insert FR page number where 

document begins].

* * * * * * * 

§ 52.1634 [Amended] 

■ 3. Section 52.1634 is amended by 

removing and reserving paragraph (d). 

[FR Doc. 2011–18125 Filed 7–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2010–1025; FRL–9436–2] 

Approval and Promulgation of Air 

Quality Implementation Plan; New 

Jersey and New York; Final 

Disapproval of Interstate Transport 

State Implementation Plan Revision for 

the 2006 24-Hour PM2.5 NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

disapprove the New Jersey and the New 

York State Implementation Plan (SIP) 

revisions submitted to address 

significant contribution to 

nonattainment or interference with 

maintenance in another state with 

respect to the 2006 24-hour fine particle 

(PM2.5) national ambient air quality 

standards (NAAQS). On January 20, 

2010, New Jersey submitted a SIP 

revision to address sections of the Clean 

Air Act (CAA) concerning interstate 

transport requirements, and the sections 

of the CAA concerning infrastructure 

requirements. On March 23, 2010, New 

York submitted a SIP revision to address 

the section of the CAA concerning 

interstate transport, and sections 

110(a)(1) and (2) of the CAA concerning 

infrastructure SIP requirements. In this 

action, EPA is taking final action to 

disapprove the portion of the New 

Jersey and the New York SIP revisions 

that addresses the requirement 

prohibiting a state’s emissions from 

significantly contributing to 

nonattainment or interfering with 

maintenance of the NAAQS in any other 

state. The remaining elements of the 

submittals are not addressed in this 

action and will be addressed in a 

separate action. The intended effect of 

this action will be the implementation 

of a Federal Implementation Plan (FIP) 

for the State no later than 2 years from 

date of the disapproval. The proposed 

Transport Rule, when final, is the FIP 

that EPA intends to implement for the 

State. 

DATES: Effective Date: This rule is 

effective on August 19, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R02–OAR– 

2010–1025. All documents in the docket 

are listed at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 2 Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. This Docket 

Facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The Docket telephone 

number is 212–637–4249. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth Fradkin 

(fradkin.kenneth@epa.gov), Air 

Programs Branch, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866, (212) 637–4249. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This section provides additional 

information by addressing the following 

questions: 

I. What action is EPA taking? 

II. What comments did EPA receive in 

response to the proposal? 

III. What are EPA’s conclusions? 

IV. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

EPA is taking final action to 

disapprove portions of the submissions 

from the State of New Jersey and the 

State of New York that were submitted 

to demonstrate that those states have 

adequately addressed elements of CAA 

section 110(a)(2)(D)(i)(I). Those 

elements require a state’s SIP to contain 


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