[Federal Register Volume 59, Number 96 (Thursday, May 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12246]
[[Page Unknown]]
[Federal Register: May 19, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[NM001; FRL-4886-4]
Clean Air Act Interim Approval Operating Permits Program; New
Mexico Environment Department
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes interim approval of the operating permits
program submitted by the Governor for the New Mexico Environment
Department (NMED) for the purpose of complying with Federal
requirements which mandate that States develop and submit to EPA
programs for issuing operating permits to all major stationary sources,
and to certain other sources with the exceptions of Bernalillo County
and Indian Lands.
DATES: Comments on this proposed action must be received in writing by
June 20, 1994.
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 indicated. Copies of the State's submittal and other supporting
information used in developing the proposed 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.
New Mexico Environment Department, Harold Runnels Bldg., room So.
2100, 1190 St. Francis Drive, Santa Fe, New Mexico 87503.
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 214-655-7210.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act as amended in 1990
(``the Act''), EPA has promulgated rules which define the minimum
elements of an approvable State operating permits program and the
corresponding standards and procedures by which the EPA will approve,
oversee, and withdraw approval of a State operating permits program
(see 57 FR 32250 (July 21, 1992)). These rules are codified at title 40
of the Code of Federal Regulations (CFR) part 70. Title V requires
States 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 develop and submit these programs to
EPA by November 15, 1993, and that 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 or
disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to two years. If EPA has not fully approved a program by
two years after the November 15, 1993, date, or by the end of an
interim program, it must establish and implement a Federal program.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
Pursuant to section 502(d) of the Clean Air Act as amended (1990
Amendments), the Governor of each State must 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. NMED requested, under the signature of Governor Bruce King,
approval with full authority to administer the State operating permits
program submittal, prepared by NMED, in all areas of the State of New
Mexico with the exceptions of Bernalillo County and Indian Lands. The
title V operating permits program package for Bernalillo County will be
submitted separately by the City of Albuquerque Environmental Health
Department, and it will be addressed in a separate Federal Register
action. Bernalillo County is granted the authority to administer a
local air pollution control program by the New Mexico Air Quality
Control Act.
In the NMED operating permits program submittal, New Mexico does
not assert jurisdiction over Indian lands or reservations for purposes
of 40 CFR part 70 and title V. EPA will, at a future date, conduct a
Federal title V operating permits program governing title V sources of
air emissions on Indian lands and reservations in New Mexico.
To date, no tribal or Pueblo government in New Mexico has authority
to administer an independent air program in the State. Upon
promulgation of the Indian air regulations, the Indians will then be
able to apply as a State, and receive the authority from EPA, to
implement an operating permits program under title V of the 1990
Amendments. The Navajo Nation lands, including those in New Mexico, are
administered under the jurisdiction of EPA Region 9. The State of New
Mexico recognizes the five (5) reservations and nineteen (19) Pueblos
throughout the lands of the State. A map outlining and listing each
tribe by name is attached to the Governor's letter.
The New Mexico submittal, provided as Item II-''Operating Permits
Program Description,'' addresses 40 CFR 70.4(b)(1) by describing how
NMED 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 is required to submit a
legal opinion from the attorney general (or the attorney for the State
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 State of New Mexico submitted an
Attorney General's Opinion and a Supplemental Attorney General's
Opinion demonstrating adequate legal authority as required by Federal
law and regulation except with regard to criminal fine authority. The
Attorney General's Opinion acknowledged that a statutory revision would
be required to bring its criminal fine authority into precise
conformance with the requirements of 40 CFR 70.11(a)(3)(ii).
The State statutes cited in the Attorney General's Opinion
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 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 EPA from granting full
approval of the State's operating permits program at this time, EPA may
grant interim approval, subject to the State obtaining the needed
criminal fine authority within 18 months after the Administrator's
approval of the New Mexico title V program pursuant to 40 CFR
70.4(f)(2).
The State's Supplemental Attorney General's Opinion addresses the
criminal fine authority required by 40 CFR 70.11(a)(3)(iii) for
tampering and false statement. EPA is relying on the State's
interpretation of its statute, NMSA 1978 section 74-2-14.E., 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).
40 CFR 70.4(b)(3)(i) requires that the State demonstrate adequate
legal authority to issue permits and assure compliance with each
applicable requirement of 40 CFR part 70. New Mexico regulation, AQCR
770.III.C.1.d., states that ``The department may impose conditions
regulating emissions during start-up and shutdown.'' EPA is relying on
the State's interpretation of this language, discussed in the State's
Supplemental Attorney General's Opinion, as allowing the department 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 State's implementation of
its permit program. The State addresses this requirement in its program
submittal under Item II-''Program Description'' and Item V-''Program
Documentation.''
2. Regulations and Program Implementation
The State of New Mexico has submitted Air Quality Control
Regulations (AQCR) 770-''Operating Permit Regulations'' and AQCR 771-
''Fee Regulations,'' for implementing the State part 70 program as
required by 40 CFR 70.4(b)(2). Sufficient evidence of their
procedurally correct adoption was submitted in a supplemental submittal
on January 11, 1994, supplementing the evidence of adoption which was
sent to EPA in the State's original submittal. Copies of all applicable
State and local statutes and regulations which authorize the part 70
program, including those governing State administrative procedures,
were submitted with the State's program. The State also submitted a
list of insignificant activities with the submittal for EPA to propose
approving with the approval of the State operating permits program.
This list which has been through the public participation process
during the operating permits regulation hearing was addressed by the
Regional office with no comment. The list can be found in the submittal
under Item II-''Operating Permits Program Description,'' Attachment II-
3-''List of Insignificant Activities.''
The New Mexico operating permits regulations followed part 70 very
closely with a few exceptions. The cross-reference chart can be found
in the New Mexico submittal under Item VI-''Various Provisions,''
Attachment VI-1, indicating where each paragraph of the part 70
regulation is addressed in AQCR 770. AQCR 770 is submitted as
Attachment III-1. The following requirements, set out in EPA's part 70
operating permits program review, are addressed in Item VI of the
State's submittal: (A) Applicability criteria, including any criteria
used to determine insignificant activities or emissions levels (40 CFR
70.4(b)(2)): AQCR 770.II., ``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)): AQCR 770.IV A.4.; (C)
Provisions for action on permit applications (40 CFR 70.4(b)(6)): AQCR
770.IV.A.3.; (D) Provisions for permit content, (including 40 CFR
70.4(b)(16)): all applicable requirements: AQCR 770.III.C.1.; a fixed
term: AQCR 770.III.C.2.; monitoring and related record keeping and
reporting requirements: AQCR 770.III.C.3. through 5.; source compliance
requirements: AQCR 770.III.C.7.; (E) Operational flexibility provisions
(40 CFR 70.4(b)(12)): AQCR 770.III.C.8.; (F) Provisions for permit
issuance, renewals, reopenings and revisions, including public, EPA and
affected State review to be accomplished in an expeditious manner (40
CFR 70.4(b)(13) and (16)): AQCR 770.VI.; and (G) If the permitting
authority allows off-permit changes, provisions assuring compliance
with Sec. Sec. 70.4(b)(14) and (15): AQCR 770.C.9. The AQCR
regulations, in section 770.IV.(H), provide that applicants can receive
variances from non-Federal conditions only. The State prevents any
source from receiving a variance from any AQCR 770 or part 70
requirements.
3. Permit Fee Demonstration
In AQCR 771, the State's fee regulation, New Mexico established
fees for criteria air pollutants which are below the presumptive
minimum. The New Mexico regulation allows for a fee of $10.25 per ton
for criteria pollutants based on allowable emissions at major sources
as defined in AQCR 770-''Operating Permits'' regulations. For
facilities which are only major for hazardous air pollutants (HAP) and
not for other pollutants, the fees are $150 per ton for the 189 HAPs
listed in title III of the 1990 Amendments. These fees, when converted
using EPA criteria, result in the collection of an average of $19.30
per ton for title V sources. The State of New Mexico, after careful
review, determined that these fees would support the title V permit
program costs as required by 40 CFR 70.9(a). New Mexico explains in its
fee demonstration that it chose this fee structure because it allowed
for program costs to be covered without unduly penalizing any industry
in the State, and the fees generated would meet, but not likely exceed,
program costs. The NMED will have a periodic review of the program fee
schedule. The New Mexico fee demonstration shows that this fee schedule
meets the requirements for an operating permits program in New Mexico.
The State will collect 2.7 million dollars per year to support all
applicable part 70 activities. The State projects the direct cost to
fund the operation of the title V program to be 2.3 million dollars per
year, and the indirect cost to be approximately $372,000. The State
anticipates increasing its air quality staff by 38 new full time
employees (FTE), a total of 1/3 of the existing air program staff. Any
changes in the fees would need to be made by NMED through the New
Mexico Environmental Improvement Board.
4. Provisions Implementing the Requirements of Other Titles of the Act
The State of New Mexico acknowledges that its request for approval
of a part 70 program is also a request for approval of a program for
delegation of section 112 standards as they apply to part 70 sources.
The State of New Mexico currently receives delegation of any new
provisions required by section 112 of the Act (governing National
Emission Standards for Hazardous Air Pollutants (NESHAP)) on an annual
basis through a delegation agreement with EPA. Under the 1990
Amendments, the State can now receive delegation of any new authority
required by section 112 of the Act through approval of the State
operating permits program.
The State has the option at any time to request, under section
112(l) of the Act, delegation of section 112 requirements in the form
of State regulations which the State demonstrates are equivalent to the
corresponding section 112 provisions promulgated by EPA. At this time,
the State plans to use the mechanism of incorporation by reference to
adopt unchanged Federal section 112 requirements into its regulations.
The radionuclide NESHAP is a section 112 regulation and therefore,
also an applicable requirement under the State operating permits
program. The EPA will work with the State in the development of its
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 or
reconstruct any major source of any HAPs unless the State determines
that the maximum achievable control technology emission limitation
under section 112(g) for new sources will be met. Such determination
must be made on a case-by-case basis where no applicable limitations
have been established by the Administrator. After the title V effective
date and before the promulgation of the Federal 112(g) rule, New Mexico
intends to implement section 112(g) of the Act with regard to new
sources through the State's preconstruction process.
The State of New Mexico commits to appropriately implementing the
existing and future requirements of sections 111, 112 and 129 of the
Act, and all maximum achievable control technology (MACT) standards
promulgated in the future, in a timely manner.
The State of New Mexico commits to having an acid rain program in
place by January 1, 1995. The State will submit copies to EPA of any
proposed program rules, regulations and guidance prepared for review
and comment to meet the Federal implementation date and to issue
permits by December 1997.
5. Enforcement Provisions
The NMED's operating permits program submittal addressed the
enforcement requirements of 40 CFR 70.4(b)(4)(ii) and 70.4(b)(5) in
Item VIII-''Enforcement Provisions.'' In a supplemental submittal,
received by EPA after the November 15, 1993 submittal, the Regional
Office received a signed Memorandum of Understanding between EPA Region
6 and NMED. This document, which was the product of negotiations
between EPA Region 6 and NMED, had been awaiting signature at the time
of the original submittal. Item VIII of the State'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 will be shown in a document entitled
``Technical Support Document'', which will be 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 NMED, except with regard to
criminal enforcement authority.
7. Summary
The State of New Mexico submitted to EPA, under a cover letter from
the Governor dated November 15, 1993, the State's operating permits
program. The submittal has adequately addressed all sixteen (16)
elements required for full approval as discussed in part 70, except
with regard to criminal fine authority. The State of New Mexico
addressed appropriately all requirements necessary to receive interim
approval of the State operating permits program pursuant to title V,
1990 Amendments and 40 CFR part 70.
B. Options for Approval/Disapproval and Implications
The EPA is proposing to grant interim approval of the operating
permits program submitted by New Mexico on November 15, 1993. Interim
approvals under section 502(g) of the Act do not create any new
requirements, but simply approve requirements that the State is already
imposing. If promulgated, the State must make the following changes to
receive full approval: Correct the statutory defect in criminal fine
authority. 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
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 revisions and their procedurally correct
adoption must be submitted to EPA within 18 months of EPA's approval of
the New Mexico operating permits program. This interim approval, which
may not be renewed, extends for a period of up to two years. During the
interim approval period, the State is protected from sanctions for
failure to have a program, and EPA is not obligated to promulgate a
Federal permit program in the State. 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 proposed interim approval is converted to a disapproval, it
will not affect any existing State requirements applicable to small
entities. Federal disapproval of the State submittal would not affect
its State-enforceability. Moreover, EPA's disapproval of the submittal
would not impose a new Federal requirement. Therefore, 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 State requirements or substitute a new Federal requirement.
III. Proposed Rulemaking Action
In this action, EPA is proposing interim approval of the operating
permits program submitted by the State of New Mexico. The program was
submitted by the State to EPA 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 develop, and submit to EPA, programs
for issuing operating permits to all major stationary sources, and to
certain other sources with the exceptions of Bernalillo County and
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's 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
proposing to grant approval under section 112(l)(5) and 40 CFR 63.91 of
the State's program for receiving delegation of section 112 standards
that are unchanged from Federal standards as promulgated. This applies
to existing and future standards as they apply to sources covered by
the part 70 program.
EPA has reviewed this submittal of the New Mexico operating permits
program and is proposing interim approval. Certain defects in the
State's statutory criminal fine authority preclude EPA from granting
full approval of the State's operating permits program at this time.
EPA is proposing to grant interim approval, subject to the State
obtaining the needed criminal fine authority within 18 months after the
Administrator's approval of the New Mexico title V program pursuant to
40 CFR 70.4.
IV. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
rule. Copies of the State'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,
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. EPA will
consider any comments received by June 20, 1994.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review of the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant'' regulatory action as one that is likely to lead to a
rule that may:Q02
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
C. Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.),
Federal agencies must obtain OMB clearance for collection of
information from ten (10) or more non-Federal respondents.
D. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, 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 State is 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 action. The Act forbids EPA to base 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 procedure,
Air pollution control, Intergovernmental relations.
Authority: 42 U.S.C. 7401-7671q.
Dated: May 11, 1994.
Allyn M. Davis,
Acting Regional Administrator (6A).
[FR Doc. 94-12246 Filed 5-18-94; 8:45 am]
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