[Federal Register Volume 60, Number 6 (Tuesday, January 10, 1995)]
[Rules and Regulations]
[Pages 2527-2534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-547]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[NM002; FRL-5136-1]
Clean Air Act Interim Approval of Operating Permits Program; City
of Albuquerque Environmental Health Department, Air Pollution Control
Division
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is promulgating interim approval of the operating
permits program submitted by the New Mexico Governor's designee, Mr.
Lawrence Rael, for the City of Albuquerque as Chief Administrative
Officer, and for Bernalillo County as the administrative head of the
Albuquerque/Bernalillo County Operating Permits Program, for the
[[Page 2528]] purpose of complying with Federal requirements for an
approvable program to issue operating permits to all major stationary
sources, and to certain other sources with the exception of Indian
Lands.
DATES: This direct final rule is effective on March 13, 1955 unless
adverse or critical comments are received by February 9, 1995.
ADDRESSES: Written comments on this action should be addressed to Ms.
Jole C. Luehrs, Chief, New Source Review Section, at the EPA Region 6
Office listed. Copies of the City's submittal and other supporting
information used in developing the final rule are available for
inspection during normal business hours at the following locations.
Interested persons wanting to examine these documents should make an
appointment with the appropriate office at least 24 hours before
visiting day.
Environmental Protection Agency, Region 6, Air Programs Branch (6T-
AN), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733. City of
Albuquerque/Bernalillo County, Environmental Health Department, One
Civic Plaza, NW., room 3023, Albuquerque, New Mexico 87103.
FOR FURTHER INFORMATION CONTACT: Adele D. Cardenas, New Source Review
Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue,
suite 700, Dallas, Texas 75202-2733, telephone 214-665-7210.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
In title V of the 1990 Clean Air Act Amendments (sections 501-507
of the Clean Air Act (``the Act'')), the EPA has promulgated rules
which define the minimum elements of an approvable State/local
operating permits program, and the corresponding standards and
procedures by which the EPA will approve, oversee, and withdraw
approval of a State/local operating permits program (see 57 FR 32250
(July 21, 1992)). These rules are codified at 40 Code of Federal
Regulations (CFR) part 70. Title V requires States/local areas to
develop, and submit to EPA, programs for issuing these operating
permits to all major stationary sources and to certain other sources.
The Act requires that States/local areas develop and submit these
programs to the EPA by November 15, 1993, and that the EPA act to
approve or disapprove each program within one year after receiving the
submittal. The EPA's program review occurs pursuant to section 502 of
the Act and the part 70 regulations which together outline criteria for
approval and disapproval. Where a program substantially, but not fully,
meets the requirements of part 70, the EPA may grant the program
interim approval for a period of up to two years. If the EPA has not
fully approved a program by two years after the date of November 15,
1993, or by the end of an interim program, it must establish and
implement a Federal program.
The EPA is publishing this action without prior proposal because
the EPA views this as a noncontroversial action and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing interim approval of the
operating permits program submitted by the City of Albuquerque/
Bernalillo County should adverse or critical comments be filed. Under
the procedures established in the May 10, 1994, Federal Register, this
action will be effective on March 13, 1995 unless, by February 9, 1995
adverse or critical comments are received.
II. Proposed Action and Implications
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period. Any
parties interested in commenting on this action should do so at this
time. If no such comments are received, the public is advised that this
action will be effective on March 13, 1995.
A. Analysis of City/County Submission
1. Support Materials
Pursuant to section 502(d) of the Act, the State/local area is
required to develop and submit to the Administrator an operating
permits program under State or local law or under an interstate compact
meeting the requirements of title V of the Act. Bernalillo County and
the City of Albuquerque within the County are granted the authority to
administer a local air pollution control program by the New Mexico Air
Quality Control Act. The Air Pollution Control Division (APCD) of the
City of Albuquerque Environmental Health Department requested in the
original submittal, under the signature of Governor Bruce King,
approval with full authority to administer the City of Albuquerque/
Bernalillo County Operating Permits Program, prepared by APCD, in all
areas of Bernalillo County in the State of New Mexico with the
exception of Indian lands.
Pursuant to NMSA 1978 section 74-2-1 et seq. (Repl. Pamph. 1993),
Bernalillo County and the City of Albuquerque have created a joint
local authority, the Albuquerque/Bernalillo County Air Quality Control
Board, to adopt regulations, administer and enforce the State Air
Quality Control Act, the City Joint Air Quality Control Ordinance and
the Air Quality Control Board Regulations within Bernalillo County.
The City of Albuquerque/Bernalillo County submitted their final
operating permits program to the EPA Regional Office on April 4, 1994.
The title V program covering the City and County was signed by the
Governor's designee Mr. Lawrence Rael, for the City of Albuquerque as
Chief Administrative Officer and for Bernalillo County as the
administrative head of the Albuquerque/Bernalillo County Operating
Permits Program, for the purpose of complying with Federal
requirements.
In the APCD operating permits program submittal, the City of
Albuquerque/Bernalillo County does not assert jurisdiction over Indian
lands or reservations. To date, no tribal government in New Mexico has
authority to administer an independent air program in the County of
Bernalillo. Upon promulgation of the Indian air regulations, Indian
tribes will then be able to apply as States, and receive the authority
from the EPA to implement an operating permits program under title V of
the Act. The EPA will, where appropriate, conduct a Federal title V
operating permits program in accordance with forthcoming EPA
regulations, for those Indian tribes which do not apply for treatment
as States under the Act.
The City of Albuquerque/Bernalillo County submittal provided an
operating permits program plan which outlines items in the following
sections: Item II--``Operating Permits Program Description,'' addresses
40 CFR 70.4(b)(1) by describing how APCD intends to carry out its
responsibilities under the part 70 regulations. The program description
addresses the following areas: (A) Organizational structure, (B)
Regulations, guidelines, policies and procedures, and (C) Future
regulatory actions (40 CFR 70.4(b)(3)(i) and (v)). The program
description has been deemed to be appropriate for meeting the
requirement of 40 CFR 70.4(b)(1).
Pursuant to 40 CFR 70.4(b)(3), the Governor or his designee is
required to [[Page 2529]] submit a legal opinion from the Attorney
General (or the attorney for the State or local air pollution control
agency that has independent legal counsel) demonstrating adequate
authority to carry out all aspects of a title V operating permits
program. The Albuquerque City Attorney submitted a Final City
Attorney's Opinion and a First and Second Supplemental City Attorney's
Opinion on behalf of both the City of Albuquerque and Bernalillo
County.
This is because, as explained in the Second Supplemental City
Attorney's Opinion, the City Attorney provides legal advice to the City
pursuant to City Ordinance 1-20-1 R.O. 1974, and the City Attorney,
with the consent of Bernalillo County, is independent counsel for the
joint Albuquerque/Bernalillo County Air Quality Control Board. The
administrative agency for this joint board is the City Environmental
Health Department, as provided in Albuquerque/Bernalillo County AQC
regulations 2.12 and 1.13. The APCD, a subdivision of the City
Environmental Health Department, was given the responsibility of
preparing and implementing the City/County title V program. Therefore,
under the authority of NMSA 1978 section 74-2-1, et seq., and
consistent with his role as independent counsel for the City of
Albuquerque/Bernalillo County Air Quality Control Board and the City
Environmental Health Department, the City Attorney in his First and
Second Supplemental City Attorney's Opinion addressed the required
authority to implement the City/County's title V operating permits
program.
As explained in the Second Supplemental City Attorney's Opinion,
the City Amended Ordinance and the County Amended Ordinance do not
repeat the felony violation language of Air Quality Control (AQC) Act
section 74-2-14.C verbatim. This is because of a New Mexico
Constitutional requirement that felony violations must be initiated and
prosecuted by the State Attorney General or the State District
Attorney. State law requires all violations of City and County
ordinances to be prosecuted in Metropolitan Court, for which the New
Mexico Constitution limits jurisdiction to non-felony cases. Therefore,
the City and County ordinances do not state that the felony violations
detailed in AQC Act section 74-2-14.C are also ordinance violations.
Since State statute requires that felonies committed within the City
and County be initiated and prosecuted by the State Attorney General or
District Attorney, this is not an obstacle to part 70 approval.
The legal opinions submitted by the City Attorney demonstrate
adequate legal authority as required by Federal law and regulation to
implement and enforce a part 70 operating permits program except with
regard to criminal fine authority as discussed below. The City
Attorney, in Albuquerque's Final City Attorney's Opinion, acknowledged
that the EPA had determined that a statutory revision would be required
to render the State's criminal fine authority consistent with the
requirements of 40 CFR 70.11 (a)(3)(ii).
The State statutes and City and County ordinances cited in the
Final City Attorney's Opinion for Albuquerque/Bernalillo County
authorize the imposition of criminal fines in the amounts of only
$1,000 and $5,000 for misdemeanor and felony violations, respectively,
rather than the $10,000 per violation amounts required by 40 CFR
70.11(a)(3)(ii) for knowing violations of applicable requirements,
permit conditions and fee and filing requirements. Further, those
statutes and ordinances do not appear to authorize the fine amounts to
be imposed per day per violation as required by 40 CFR 70.11(a)(3)(ii).
Although these defects in criminal fine authority preclude the EPA from
granting full approval of the City/County's operating permits program
at this time, the EPA may grant interim approval, subject to the State,
City and County obtaining and submitting to the EPA the needed criminal
fine authority within 18 months after the Administrator's approval of
the Albuquerque/Bernalillo County title V program pursuant to 40 CFR
70.4(f)(2). This will need to be accomplished through statutory
revisions by the State of New Mexico and revisions to the City Joint
AQC Board Ordinance and the County Joint AQC Board Ordinance by the
City and County consistent with the amendments to State statute, and
submission of those revisions to the EPA within the prescribed 18-month
period.
As noted in the City Attorney's cover letter accompanying
Albuquerque's First Supplemental City Attorney's Opinion, the State
statute which provides for the delegation of authority from the State
to Albuquerque/Bernalillo County for the City/County's operating
permits program, New Mexico Statutes Annotated (NMSA) 1978 section 74-
2-4, provides that any ordinances adopted by the City/County must be
consistent with the substantive provisions of State statute and provide
for standards and regulations not lower than those required by
regulations adopted by the New Mexico Environmental Improvement Board.
Therefore, as explained in the above-mentioned City Attorney's cover
letter, the City/County rely on the interpretation of the State
Attorney General contained in the Attorney General's Opinion and
Supplemental Attorney General's Opinion submitted with the New Mexico
Operating Permits Program, with respect to a number of issues discussed
below.
The City/County rely on the State's Supplemental Attorney General's
Opinion submitted as part of the New Mexico Operating Permits Program
and contained in the EPA's docket for the New Mexico part 70 program,
in their interpretation of NMSA 1978 section 74-2-14.E with regard to
the underlying criminal fine authority required by 40 CFR
70.11(a)(3)(iii) for tampering and false statement. The Albuquerque
Supplemental City Attorney's Opinion and accompanying cover letter also
reflect that the City and County rely on the requirements of NMSA 1978
section 74-2-4 for their interpretation of the identical City Amended
Ordinance, section 6-16-17.B, and the identical County Amended
Ordinance, section 17.B, consistent with State statute.
The EPA is also relying on the State's interpretation of its
statute, NMSA 1978 section 74-2-14.E set out in New Mexico's
Supplemental Attorney General's Opinion referenced above, as
demonstrating that New Mexico law allows criminal fines of at least
$10,000 per day for each act of tampering and for each false statement
as required by 40 CFR 70.11(a)(3)(iii), and on the City and County
interpretation of their identical provisions in the City and County
Amended Ordinances reflected in Albuquerque's First Supplemental City
Attorney's Opinion consistent with this statutory interpretation as
meeting the Federal requirement.
40 CFR 70.4(b)(3)(i) requires that a State/local agency demonstrate
adequate legal authority to issue permits and assure compliance with
each applicable requirement of 40 CFR part 70. Both the New Mexico
regulation, Air Quality Control Regulation (AQCR) 770.III.C.1.d and the
Albuquerque/Bernalillo County regulation, Air Quality Control (AQC)
41.03(C)(1)(d), state that ``the department may impose conditions
regulating emissions during start-up and shutdown.'' The EPA is relying
on the State's interpretation of this language, discussed in the
State's Supplemental Attorney General's Opinion referenced above, and
the City/County interpretation of their corresponding regulation as set
out in Albuquerque's First Supplemental City Attorney's Opinion, in
interpreting this language to [[Page 2530]] allow the permitting
authority to impose requirements which exceed title V applicable
requirements, but not to waive any title V requirements for title V
sources.
40 CFR 70.4(b)(4) requires the submission of relevant permitting
program documentation not contained in the regulations, such as permit
forms and relevant guidance to assist in the City's implementation of
its permits program. The City of Albuquerque/Bernalillo County address
this requirement in the operating permits program plan part of the
submittal under Section IV--Appendices B, C and H.
2. Regulations and Program Implementation
The City of Albuquerque/Bernalillo County have submitted Air
Quality Control (AQC) regulation No. 41--``Operating Permit
Regulations'' and AQC No. 21--``Fee Regulations,'' for implementing the
City of Albuquerque/Bernalillo County part 70 program as required by 40
CFR 70.4(b)(2). Sufficient evidence of their procedurally correct
adoption was submitted in the final submittal on April 4, 1994. Copies
of all applicable State and local statutes and regulations which
authorize the part 70 program, including those governing State/City
administrative procedures, were submitted with the City's program. The
City of Albuquerque/Bernalillo County also submitted a list of
insignificant activities with the submittal for the EPA's review and
approval with the City/County operating permits program. This list,
which underwent the City/County public participation process during the
operating permits regulation hearing, is being approved by the Regional
Office with this document. The list can be found in the submittal under
Item II--``Operating Permits Program Description,'' Attachment II-3--
``List of Insignificant Activities.''
The City of Albuquerque/Bernalillo County operating permits
regulations followed the State of New Mexico operating permits
regulation AQCR 770. The State's regulations follow part 70 very
closely with a few exceptions. The cross-reference chart submitted with
the State's operating permits program submission can also be used for
reviewing the City/County's program due to the close similarity of the
State and City/County permit regulations. The New Mexico submittal
addresses the cross-reference chart under Item VI--``Various
Provisions'', Attachment VI-1, indicating where each paragraph of the
part 70 regulation is addressed in AQCR 770. The City submitted AQC 41,
the Operating Permits Regulations for the City, as Attachment I in the
Final City Attorney's Opinion. The following requirements, set out in
the EPA's part 70 operating permits program review, are addressed in
the operating permits program plan and in AQC 41--Attachment I of the
City/County's submittal as follows: (A) Applicability criteria,
including any criteria used to determine insignificant activities or
emissions levels (40 CFR 70.4(b)(2)): AQC 41.02, ``List of
Insignificant Activities''; (B) Provisions for continuing permits or
permit terms if a timely and complete application is submitted, but
action is not taken on a request prior to permit expiration (40 CFR
70.4(b)(10)): AQC 41.04(A)(4); (C) Provisions for action on permit
applications (40 CFR 70.4(b)(6)): AQC 41.04(A)(3); (D) Provisions for
permit content (including 40 CFR 70.4(b)(16)): all applicable
requirements: AQC 41.03(C)(1); a fixed term: AQC 41.03(C)(2);
monitoring and related recordkeeping and reporting requirements: AQC
41.03(C)(3) through (5); source compliance requirements: AQC
41.03(C)(7); (E) Operational flexibility provisions (40 CFR
70.4(b)(12)): AQC 41.03(C)(8); (F) Provisions for permit issuance,
renewals, reopenings and revisions, including public, the EPA and
affected State review to be accomplished in an expeditious manner (40
CFR 70.4(b)(13) and (16)): AQC 41.04; and (G) If the permitting
authority allows off-permit changes, provisions assuring compliance
with sections 70.4(b)(14) and (15): AQC 41(C)(9). The AQC regulations
in section 41.04(H) provide that applicants can receive variances from
non-Federal conditions only. The City/County prevent any source from
receiving a variance from any AQC 41 or part 70 requirement. The City
of Albuquerque/Bernalillo County's definition of ``title I
modification'' does not include changes reviewed under a minor new
source preconstruction review program (``minor NSR changes''). The EPA
is currently in the process of determining the proper definition of
that phrase. As further explained below, EPA has solicited public
comment on whether the phrase ``modification under any provision of
title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) should be
interpreted to mean literally any change at a source that would trigger
permitting authority review under regulations approved or promulgated
under Title I of the Act. This would include State preconstruction
review programs approved by EPA as part of the State Implementation
Plan under section 110(a)(2)(C) of the Clean Air Act and regulations
addressing source changes that trigger the application for National
Emission Standard for Hazardous Air Pollutants (NESHAP) established
pursuant to section 112 of the Act prior to the 1990 Amendments.
For the reasons set forth in the EPA's proposed rulemaking to
revise the interim approval criteria of 40 CFR part 70 (59 FR 44572,
August 29, 1994), the EPA believes the phrase ``modification under any
provision of title I of the Act'' in 40 CFR 70.7(e)(2)(i)(A)(5) is best
interpreted to mean literally any change at a source that would trigger
permitting authority review under regulations approved or promulgated
under title I of the Act. This would include State/local
preconstruction review programs approved by EPA as part of the State
Implementation Plan under section 110(a)(2)(C) of the Act and
regulations addressing source changes that trigger the application of
NESHAPs established pursuant to section 112 of the Act prior to the
1990 amendments, and would include minor NSR changes not covered under
the City of Albuquerque/Bernalillo County operating permits program's
definition of ``title I modification''.
On August 29, 1994, the EPA proposed revisions to its criteria for
interim approval of State/local operating permits programs under 40 CFR
70.4(d) to allow State/local operating permits programs with a narrower
definition of ``title I modification'' like the City of Albuquerque/
Bernalillo County's to receive interim approval (59 FR 44572). The EPA
also solicited public comment on the proper interpretation of ``title I
modification.'' (59 FR 44572, 44573). The EPA stated that if, after
considering the public comments, it continued to believe that the
phrase ``title I modifications'' should be interpreted as including
minor NSR changes, it would revise the interim approval criteria as
needed to grant States/locals that adopted a narrower definition,
interim approval.
The EPA intended to finalize its revisions to the interim approval
criteria under 40 CFR 70.4(d) before taking final action on part 70
operating permits programs submitted by the State/locals. However, it
will not be possible to delay approval of operating permits programs
until final action has been taken on EPA's proposed revisions to the
part 70 interim approval criteria. This is because publication of the
proposed revisions was delayed until August 29, 1994, and the EPA
received several requests to extend the public comment
[[Page 2531]] period until November 27, 1994.\1\ Given the importance
of the issues in that rulemaking to States/locals, sources and the
public, but mindful of the need to take action quickly, the EPA agreed
to extend the comment period until October 28, 1994 (see 59 FR 52122
(October 14, 1994)). Consequently, final action to revise the interim
approval criteria will not occur before the deadline for EPA action on
State/local operating permits programs such as the City of Albuquerque/
Bernalillo County's, that were submitted on or before November 15,
1993.\2\ The EPA believes it would be inappropriate to delay action on
the City of Albuquerque/Bernalillo County's operating permits program,
perhaps for several months, until final action is taken on the proposed
revisions to the part 70 interim approval criteria. The EPA also
believes it would be inappropriate to grant interim approval to the
City of Albuquerque/Bernalillo County on this issue before final action
is taken to revise the current interim approval criteria of 40 CFR
70.4(b) to provide a legal basis for such an interim approval. Until
the revision to the interim approval criteria is promulgated, the EPA's
choices are to either fully approve or disapprove the narrower ``title
I modification'' definition in States/locals such as the City of
Albuquerque/Bernalillo County. For the reasons set forth below, the EPA
believes that disapproving such operating permits programs at this time
based solely on this issue would be inappropriate.
\1\EPA originally established a 30-day public comment period for
the August 29, 1994, proposal. In response to several requests for
extension, however, EPA agreed to allow an additional thirty days
for public comments. See 59 FR 52122 (October 14, 1994).
\2\Section 502(d) requires, in relevant part, that ``[n]ot later
than 1 year after receiving a program, and after notice and
opportunity for public comment, the Administrator shall approve or
disapprove such program, in whole or in part.''
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First, the EPA has not yet conclusively determined that a narrower
definition of ``title I modification'' is incorrect and thus a basis
for disapproval (or even interim approval). The EPA has received
numerous comments on this issue as a result of the August 29, 1994,
Federal Register document, and the EPA cannot and will not make a final
decision on this issue until it has evaluated all comments on that
proposed rulemaking. Second, the EPA believes that the City of
Albuquerque/Bernalillo County Operating Permits Program should not be
disapproved because the EPA itself has not yet been able to resolve
this issue through rulemaking. Moreover, disapproving operating permits
programs from States/locals such as the City of Albuquerque/Bernalillo
County that submitted their operating permits programs to the EPA on or
before the November 15, 1993, statutory deadline, could lead to the
unfair result that these States/locals would receive disapprovals,
while States/locals which were late in submitting operating permits
programs could take advantage of revised interim approval criteria
should those criteria become final. In effect, States/locals would be
severely penalized for having made timely operating permits program
submissions to the EPA. Finally, disapproval of a State/local operating
permits program for a potential problem that primarily affects permit
revision procedures would delay the issuance of part 70 permits,
hampering State/local/Federal efforts to improve environmental
protection through the operating permits program.
For the reasons mentioned above, the EPA is approving the City of
Albuquerque/Bernalillo County Operating Permits Program's use of the
narrower definition of ``title I modification'' at this time.\3\
However, should the EPA in the interim approval criteria rulemaking
make a final determination that such a narrow definition of ``title I
modification'' is incorrect and that a revision of the interim approval
criteria is warranted, the EPA will propose further action on City of
Albuquerque/Bernalillo County's operating permits program so that the
City/County's definition of ``title I modification'' could become
grounds for interim approval requiring revision prior to the EPA's
granting of full approval to that program.\4\ An operating permits
program like the City of Albuquerque/Bernalillo County's that receives
full approval of its narrower ``title I modification'' definition
pending completion of the EPA's rulemaking must ultimately be placed on
an equal footing with programs of States/locals that receive interim
approval in later months under any revised interim approval criteria
because of the same issue. Converting the full approval on this issue
to an interim approval after the EPA completes its rulemaking would
avoid this inequity. The EPA anticipates that an action to convert the
full approval on the ``title I modification'' issue to an interim
approval would be effected through an additional rulemaking, so as to
ensure that there is adequate notice of the change in approval status.
\3\At the present time, therefore, the EPA is not construing 40
CFR sections 70.7(e)(2)(i)(A)(3) and 70.7(e)(2)(i)(A)(5) to prohibit
Albuquerque/Bernalillo County from allowing minor NSR changes to be
processed as minor permit modifications.
\4\State programs with a narrower ``title I modification''
definition that are acted upon by EPA after an Agency decision that
such a narrower definition is inappropriate would be considered
deficient, but would be eligible for interim approval under revised
40 CFR section 70.4(b).
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3. Permit Fee Demonstration
In AQC 21, the City/County's fee regulation, the City/County board
established fees for criteria air pollutants which are below the
presumptive minimum set out in 40 CFR 70.9(b)(2)(iv). The City/County
regulation allows for a fee of $22.00 per ton for criteria pollutants
based on allowable emissions at major sources as defined in AQC Number
41--``Operating Permits'' regulations. For facilities which are also
major for hazardous air pollutants (HAP), the fees are $250 per ton for
the 189 HAPs listed in title III of the 1990 Amendments. These fees,
when converted using the EPA criteria, result in the collection of an
average of $29.84 per ton for title V sources. The City/County board,
after careful review, determined that these fees would support the
title V permit program costs as required by 40 CFR 70.9(a). The City of
Albuquerque/Bernalillo County explain in their fee demonstration that
they chose this fee structure because it allowed for program costs to
be covered without unduly penalizing any industry, and the fees
generated would meet, but not likely exceed, program costs. The APCD
will conduct a periodic review of the program fee schedule. The City of
Albuquerque/Bernalillo County fee demonstration shows that this fee
schedule meets the requirements for an operating permits program in the
City of Albuquerque and Bernalillo County. The APCD will collect
$292,518 dollars per year to support all applicable part 70 activities
for the City/County. The APCD projects the direct cost to fund the
operation of the title V program to be approximately $195,000 dollars
per year, and the indirect cost to be approximately $97,500. The APCD
anticipates increasing its air quality staff by 6.3 new full time
employees, a total of \1/3\ of the existing air program staff. Any
changes in the fees would need to be made by APCD through the
Albuquerque/Bernalillo County Air Control Board.
4. Provisions Implementing the Requirements of Other Titles of the Act
The City of Albuquerque/Bernalillo County acknowledge that their
request for approval of a part 70 program is also a request for
approval of a program for [[Page 2532]] delegation of unchanged section
112 standards under the authority of section 112(l) as they apply to
part 70 sources. Upon receiving approval under section 112(l), the City
of Albuquerque/Bernalillo County may receive delegation of any new
authority required by section 112 of the Act through the delegation
process.
The City of Albuquerque/Bernalillo County have the option at any
time to request, under section 112(l) of the Act, delegation of section
112 requirements in the form of City regulations which the City/County
demonstrate are equivalent to the corresponding section 112 provisions
promulgated by the EPA. At this time, the City/County plan to use the
mechanism of incorporation by reference to adopt unchanged Federal
section 112 requirements into their regulations.
The radionuclide NESHAP is a section 112 regulation and therefore,
also an applicable requirement under the City/County operating permits
program for part 70 sources. There is not yet a Federal definition of
``major'' for radionuclide sources. Therefore, until a major source
definition for radionuclides is promulgated, no source would be a major
section 112 source solely due to its radionuclide emissions. However, a
radionuclide source may, in the interim, be a major source under part
70 for another reason, thus requiring a part 70 permit. The EPA will
work with the City/County in the development of their radionuclide
program to ensure that permits are issued in a timely manner.
Section 112(g) of the Act requires that, after the effective date
of a permits program under title V, no person may construct,
reconstruct or modify any major source of any HAPs unless the State/
local agency determines that the maximum achievable control technology
(MACT) emission limitation under section 112(g) will be met. Such
determination must be made on a case-by-case basis where no applicable
limitations have been established by the Administrator. During the
transition period from the title V effective date to the date the City/
County have taken appropriate action to implement the final section
112(g) Federal rule, proposed on April 1994 (59 FR 15504), (either by
adoption of the unchanged Federal rule or approval of an existing State
rule under section 112(l)), the City of Albuquerque/Bernalillo County
intend to implement section 112(g) of the Act through the City/County's
preconstruction process using a two-pronged approach.
Immediately upon approval of their operating permits program, the
City/County intend to implement section 112(g) through their existing
preconstruction rule, AQC Regulation 20. This rule was previously
approved by the EPA to implement the preconstruction requirements of
title I of the Act.
The second phase of the City/County's section 112(g) implementation
approach during the transition period is expected to be based on the
City/County board's adoption of the New Mexico State rule, AQCR 755,
into their existing City/County regulations, AQC Regulation 20 and
Regulation 41. The New Mexico State rule, AQCR 755 clarifies the
requirements set out in the proposed Federal section 112(g) rule and
its preamble.
The City/County anticipate that the incorporation of the language
of the State rule into City/County AQC Regulations 20 and 41 will be
effective by mid-March 1995. When final, this incorporation is expected
to enhance the mechanism contained in Albuquerque's existing
preconstruction rule, AQC Regulation 20, for the implementation of
section 112(g). If the New Mexico State rule AQCR 755 is not finally
incorporated by the City/County, or is incorporated with substantial
changes from the State rule as promulgated, the City/County rule, AQC
Regulation 20 will continue to provide authority for the implementation
of Federal section 112(g). After the final Federal section 112(g) rule
is promulgated, the City/County will be required to formally revise
their rules accordingly.
The City of Albuquerque/Bernalillo County commit to appropriately
implementing the existing and future requirements of sections 111, 112,
and 129 of the Act, and all MACT standards promulgated in the future,
in a timely manner. This includes a commitment to implement both
promulgated section 112 Federal standards and section 112 requirements
such as section 112(g) that are not federally promulgated standards.
The City of Albuquerque/Bernalillo County commit to having an acid
rain program in place by April 1995. The EPA acknowledges that this
date, which is later than the January 1, 1995, date set out in the EPA
policy, is a result of the fact that Albuquerque/Bernalillo County will
rely on the State's regulations for the development of their final acid
rain regulations. Therefore, the City/County rule adoption process
requires that they await final action on the State's rules prior to
taking final action on their acid rain rules. This is consistent with
the requirement of NMSA section 74-2-4, that the City/County
requirements be no less stringent than the corresponding State
requirements. The State will meet the January 1995 date as required in
policy drafted by the Acid Rain Division, and the City of Albuquerque/
Bernalillo County will have their acid rain program in place by April
1995. The City/County commit to submitting copies of their draft acid
rain rules, regulations and guidance for review and comment to meet the
Federal implementation date to issue permits by December 1997.
5. Enforcement Provisions
The APCD's operating permits program submittal addressed the
enforcement requirements of 40 CFR 70.4(b)(4)(ii) and 70.4(b)(5) in the
operating permit program plan, Section IV(E)--``Operating Permit
Program Enforcement Procedures.'' A copy of the signed Memorandum of
Understanding between the EPA Region 6 and the APCD is kept in the
Region 6 file room. This document, which is a product of negotiations
between the EPA Region 6 and the APCD, was signed prior to the
submittal date of the operating permits program. The Operating Permits
Program Plan, Sections IV(D), IV(E) and IV(F) of the City/County's
submittal, addresses the following issues: (A) Compliance tracking and
enforcement plan (40 CFR 70.4(b)(4)(ii) and 70.4(b)(5)); (B) Commitment
to submit enforcement information (40 CFR 70.4(b)(9)); and (C)
Enforcement authority (40 CFR 70.4(b)(2) and 70.4(b)(3)(vii)).
6. Technical Support Document
The results of this review are shown in the document entitled
``Technical Support Document,'' which is available in the docket at the
locations noted above. The technical support documentation shows that
all operating permits program requirements of part 70 and relevant
guidance were met by the submittal for the APCD, except with regard to
criminal fine authority.
7. Summary
The City of Albuquerque/Bernalillo County submitted to the EPA, an
operating permits program under a cover letter dated March 25, 1994,
from the New Mexico Governor's designee Mr. Lawrence Rael, for the City
of Albuquerque as Chief Administrative Officer and for Bernalillo
County as the administrative head of the Albuquerque/Bernalillo County
Operating Permits Program. This program was submitted for the purpose
of complying with Federal requirements regarding an operating permits
program. The submittal has adequately addressed all sixteen (16)
elements required for [[Page 2533]] full approval as discussed in part
70, except with regard to criminal fine authority. The City of
Albuquerque/Bernalillo County addressed appropriately all requirements
necessary to receive interim approval of the City/County's operating
permits program pursuant to title V, the 1990 Amendments and 40 CFR
part 70.
B. Options for Approval/Disapproval and Implications
The EPA is promulgating interim approval of the operating permits
program submitted by the City of Albuquerque for Albuquerque/Bernalillo
County on April 4, 1994. Interim approvals under section 502(g) of the
Act do not create any new requirements, but simply approve requirements
that the State/local area is already imposing. The City/County must
make the following changes for this program to receive full approval:
Following the State's correction of the statutory defect in criminal
fine authority, correct the corresponding defects in City and County
Ordinances for Albuquerque and Bernalillo County. In addition to
raising the criminal fine amounts to at least $10,000 for all offenses
listed in 40 CFR 70.11(a)(3)(ii), statutory and ordinance revisions
must provide authority for the imposition of those fines on a per day
per violation basis, as required by 40 CFR 70.11(a)(3)(ii).
Evidence of these statutory and ordinance revisions and their
procedurally correct adoption must be submitted to the EPA within 18
months of the EPA's approval of the Albuquerque/ Bernalillo County
Operating Permits Program. This interim approval, which may not be
renewed, extends for a period of two years. During the interim approval
period, the City of Albuquerque/Bernalillo County are protected from
sanctions for failure to have a program, and the EPA is not obligated
to promulgate a Federal permit program in the City of Albuquerque/
Bernalillo County. Permits issued under a program with interim approval
have full standing with respect to part 70, and the one-year time
period for submittal of permit applications by subject sources begins
upon interim approval, as does the three-year time period for
processing the initial permit applications.
If this interim approval is converted to a disapproval, it will not
affect any existing City/County requirements applicable to small
entities. Federal disapproval of the City of Albuquerque/Bernalillo
County submittal would not affect its local enforceability. Moreover,
the EPA's disapproval of the submittal would not impose a new Federal
requirement. Therefore, the EPA certifies that such a disapproval
action would not have a significant impact on a substantial number of
small entities because it would not remove existing City requirements
or substitute a new Federal requirement.
III. Proposed Rulemaking Action
In this action, the EPA is promulgating interim approval of the
operating permits program submitted by the City of Albuquerque for
Albuquerque/Bernalillo County. The program was submitted to EPA by the
Governor's designee for the City/County for the purpose of complying
with Federal requirements found in title V of the 1990 Amendments, and
in 40 CFR part 70, which mandate that States/local areas develop, and
submit to the EPA, programs for issuing operating permits to all major
stationary sources, and to certain other sources with the exception of
Indian Lands.
Requirements for title V approval, specified in 40 CFR 70.4(b),
encompass section 112(l)(5) requirements for approval of a program for
delegation of Federal section 112 standards as they apply to part 70
sources. Section 112(l)(5) requires that the State/local program
contain adequate authorities, adequate resources for implementation,
and an expeditious compliance schedule, which are also requirements
under part 70. Therefore, as part of this interim approval, the EPA is
also promulgating approval of the City/County program under section
112(l)(5) and 40 CFR 63.91 for the purpose of the City/County receiving
delegation of section 112 standards that are unchanged from Federal
standards as promulgated. This program for delegations only applies to
sources covered by the part 70 program.
The EPA's policy is to apply sanctions to State/local programs if
the Governor or his designee fails to submit a corrected program for
full approval within 18 months after the due date for the submittal. If
the City/County fail to submit a complete corrected program for full
approval by June 10, 1996, the EPA will start an 18-month clock for
mandatory sanctions. If the City/County program fail to submit a
complete program before the expiration of that 18-month period, the EPA
would impose sanctions. If the EPA disapproves the City/County's
corrective program, and has not determined that the City/County have
corrected the deficiency within 18 months after the disapproval, then
the EPA must impose mandatory sanctions. In either case, if the City/
County have not come into compliance, EPA applies the first sanction.
In addition, discretionary sanctions may be applied where warranted any
time after the end of the interim approval period if the City/County
have not submitted a complete corrective program or EPA has disapproved
a corrective program. If the EPA has not granted full approval to the
City/County program by January 10, 1997, the EPA must promulgate,
administer, and enforce a Federal operating permits program for the
City of Albuquerque Environmental Health Department, Air Pollution
Control Division.
The EPA has reviewed this submittal of the Albuquerque/ Bernalillo
County Operating Permits Program and is promulgating interim approval.
Certain defects in the State's statutory criminal fine authority and
the City/County ordinances preclude the EPA from granting full approval
of the City/County's operating permits program. The EPA is promulgating
interim approval of the City/County operating permits program, and the
State, City and County will need to obtain the needed criminal fine
authority within 18 months after the Administrator's approval of this
program pursuant to 40 CFR 70.4 in order for the City of Albuquerque/
Bernalillo County's title V program to be eligible for full approval.
IV. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this final rule.
Copies of the City/County's submittal and other information relied upon
for the proposed interim approval are contained in a docket maintained
at the EPA Regional Office. The docket is an organized and complete
file of all the information submitted to, or otherwise considered by,
the EPA in the development of this proposed rulemaking. The principal
purposes of the docket are:
(1) to allow interested parties a means to identify and locate
documents so that they can effectively participate in the rulemaking
process, and
(2) to serve as the record in case of judicial review. The EPA will
consider any comments received by February 9, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., the
EPA must prepare a regulatory flexibility analysis
[[Page 2534]] assessing the impact of any proposed or final rule on
small entities (5 U.S.C. 603 and 604). Alternatively, the EPA may
certify that the rule will not have a significant impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and government entities
with jurisdiction over populations of less than 50,000.
Operating permits program approvals under section 502 of the Act do
not create any new requirements, but simply approve requirements that
the City/County are already imposing. Therefore, because the Federal
operating permits program approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the Act, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of State/local action. The Act forbids the EPA from
basing its actions concerning operating permits programs on such
grounds (Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct
1976); 42 U.S.C. 7410(a)(2)).
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedures,
Intergovernmental relations, Operating permits.
Dated: December 23, 1994.
A. Stanley Meiburg,
Acting Regional Administrator (6A).
40 CFR part 70 is amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding paragraph (b) to the
entry for New Mexico to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
New Mexico
* * * * *
(b) City of Albuquerque Environmental Health Department, Air
Pollution Control Division: submitted on April 4, 1994; effective on
March 13, 1995; interim approval expires August 10, 1996.
* * * * *
[FR Doc. 95-547 Filed 1-9-95; 8:45 am]
BILLING CODE 6560-50-P
