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Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Prevention of Significant Deterioration and New Source Review

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Environmental Protection Agency (EPA).


Final rule.


The EPA is approving revisions to the New Mexico State Implementation Plan (SIP) that were submitted to EPA on April 11, 2002, and December 29, 2005. The revisions modify New Mexico's Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) regulations in the SIP to address changes to the Federal PSD and NNSR regulations which were promulgated by EPA on December 31, 2002 and reconsidered with minor changes on November 7, 2003 (collectively, these two Federal actions are called the “2002 New Source Review (NSR) Reform Rules”). The revisions include provisions for baseline emissions calculations, an actual-to-projected-actual methodology for calculating emissions changes, options for plantwide applicability limits (PALs), and recordkeeping and reporting requirements. EPA is approving these revisions pursuant to section 110, part C, and part D of the Federal Clean Air Act (Act).


This rule is effective on October 5, 2007.


The EPA has established a docket for this action under Docket ID Number EPA-R06-OAR-2005-NM-0006. All documents in the docket are listed on the Web site. Although listed in the index, some information is not publicly Start Printed Page 50880available, e.g., Confidential Business information or other information the disclosure of which 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 or in hard copy at the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 Freedom of Information Act Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. 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 is also available for public inspection during official business hours by appointment at the New Mexico Environment Department, Air Quality Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.

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Mr. Stanley M. Spruiell, Air Permits Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7212; fax number (214) 665-7263; e-mail address

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Throughout this document, any reference to “we,” “us,” or “our” shall mean EPA.


I. What Action Is EPA Taking?

II. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

The EPA is taking final action to approve the SIP revisions that the Governor of New Mexico submitted on December 29, 2005. This submittal consists of revisions to two regulations that are already part of the New Mexico SIP. The affected regulations are 20.2.74 New Mexico Administrative Code (NMAC) (Permits—Prevention of Significant Deterioration) and 20.2.79 NMAC (Permits—Nonattainment Areas). The revisions will update New Mexico's PSD and NNSR regulations to make them consistent with changes to the Federal NSR regulations published on December 31, 2002 (67 FR 80186) and November 7, 2003 (68 FR 63021). These EPA rulemakings are collectively referred to as the “2002 NSR Reform Rules.” EPA finds that the changes meet section 110, part C, and part D of the Act.

This SIP revision also includes other non-substantive changes to New Mexico's PSD and NNSR rules needed to update the regulatory citations, make clarifying revisions to the regulatory text, and correct typographical errors. Since the non-substantive changes do not change the regulatory requirements, EPA finds they meet section 110(l), part C and part D of the Act. Please see the Technical Support Document for further information.

The EPA is also approving portions of the SIP submittal dated April 11, 2002. This action only approves the following provisions of the April 11, 2002, SIP submittal:

  • The removal of the definition of “complete” currently in Paragraph O of NMAC; and
  • Revisions to NMAC and 20.2.79 NMAC which relate to the requirements for public notice and public participation for PSD and NNSR permits. Although the definition of “complete” is removed from New Mexico's rules, other provisions in the rules address the criteria that a permit application must include in order to be administratively complete. These provisions meet Federal requirements. While New Mexico's rules governing the procedures for determining administrative completeness and for public participation have been revised, these rules also meet Federal requirements. Therefore, the removal of the definition of “complete” and the revisions to administrative completeness and public participation for PSD and NNSR permits meet section 110(l), part C, and part D of the Act. The EPA will take appropriate action on the remaining provisions of the April 11, 2002, submittal in a separate action.

On June 20, 2007 (72 FR 33933), we published our proposed approval of this SIP revision. The proposal provided detailed information about the New Mexico SIP revision that we are approving today. The proposal also provided a detailed analysis of EPA's rationale for approving the New Mexico SIP revisions. In the proposal, we provided opportunity for public comment on the proposed action. The comment period for this proposed rulemaking ended July 20, 2007. We received no comments, adverse or otherwise, on the proposed rulemaking. We are therefore finalizing our proposed approval without changes. For more details on this submittal, please refer to the proposed rulemaking and to the Technical Support Document, which is in the docket for this action.

II. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, the relationship between the Federal Government and Indian tribes, or the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. The EPA interprets Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (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 Start Printed Page 50881the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it would approve a State program. Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes Federal executive policy on environmental justice. Because this rule merely approves a State rule implementing a Federal standard, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the 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 October 5, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).)

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List of Subjects in 40 CFR Part 52

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Dated: August 23, 2007.

Richard E. Greene,

Regional Administrator, Region 6.

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is amended as follows:

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1. The authority citation for part 52 continues to read as follows:

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

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Subpart GG—New Mexico

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2. The first table in § 52.1620(c) entitled “EPA Approved New Mexico Regulations” is amended by revising the entries for part 74 and part 79 to read as follows:

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Identification of plan.
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(c) * * *

EPA Approved New Mexico Regulations

State citationTitle/subjectState approval/ effective dateEPA approval dateExplanation
New Mexico Administrative Code (NMAC) Title 20—Environment Protection Chapter 2—Air Quality
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Part 74Permits—Prevention of Significant Deterioration12/06/0509/05/07 [Insert FR page number where document begins]
*         *         *         *         *         *         *
Part 79Permits—Nonattainment Areas12/06/0509/05/07 Insert FR page number where document begins]
*         *         *         *         *         *         *
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[FR Doc. E7-17514 Filed 9-4-07; 8:45 am]