[Federal Register Volume 85, Number 11 (Thursday, January 16, 2020)]
[Rules and Regulations]
[Pages 2648-2654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00286]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2018-0177; FRL-10003-44-Region 6]
Air Plan Approval; New Mexico; City of Albuquerque-Bernalillo
County; New Source Review (NSR) Preconstruction Permitting Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Pursuant to the Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving revisions to the
applicable New Source Review (NSR) State Implementation Plan (SIP) for
the City of Albuquerque-Bernalillo County submitted on January 18,
2018, that includes supplemental information provided on April 30,
2019. The EPA is approving newly adopted Minor New Source Review (MNSR)
permitting regulations which waive specific permitting requirements for
certain sources and create new procedures for authorizing construction
and modification of these sources.
DATES: This rule is effective on February 18, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2018-0177. All documents in the docket are
listed on the http://www.regulations.gov website. 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 EPA Region 6 Office, 1201 Elm Street, Dallas, Texas
75270.
FOR FURTHER INFORMATION CONTACT: Rick Barrett, EPA Region 6 Office, Air
Permits Section, 1201 Elm Street, Dallas, TX 75270, 214-665-7227,
[email protected]. To inspect the hard copy materials, please
schedule an appointment with Rick Barrett or Mr. Bill Deese at 214-665-
7253.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
The background for this action is discussed in detail in our June
5, 2019 proposal (84 FR 26057). In that document we proposed to approve
revisions to the City of Albuquerque-Bernalillo County SIP submitted on
January 18, 2018, including supplemental information provided on April
30, 2019. The revisions addressed in our proposal included newly
adopted Minor New Source Review (MNSR) permitting regulations which
waive specific permitting requirements for certain sources and create
new procedures for authorizing construction and modification of these
sources. The revisions created procedures which allow owners and
operators of eligible gasoline dispensing facilities (GDF), and
emergency stationary reciprocating
[[Page 2649]]
internal combustion engines (ES-RICE), to apply for an Air Quality
Notification (AQN) rather than a construction permit. The SIP action
proposes no change in emission levels or controls, and will not result
in an increase of emissions or ambient concentration of any compounds.
We received comments on the proposal from several commenters. The
full text of the comment letters received during the public comment
period, which closed on July 5, 2019, is included in the publicly
posted docket associated with this action at www.regulations.gov. The
EPA provides a summary of the comments received and corresponding
responses below.\1\
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\1\ Note that comments are grouped together into categories to
assist the reader.
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II. Responses to Comments
Comment: Several commenters stated that before any decision is made
on the proposal, the City of Albuquerque Environmental Health
Department (EHD) should come to their communities and give the
residents of Albuquerque and Unincorporated Bernalillo County,
neighborhood associations, coalitions, and interested persons an
opportunity to learn about the proposal, participate in a discussion,
get questions answered, and express concerns in a public meeting forum
in English and Spanish.
They further stated that the EHD did not notify the residents of
Albuquerque and Unincorporated Bernalillo County of their proposal; did
not conduct any public meetings with neighborhood associations,
coalitions or the public; and did not post on their website their
proposal to EPA to approve revisions to the applicable New Source
Review (NSR) State Implementation Plan (SIP) for the City of
Albuquerque-Bernalillo County.
Response: EPA regulations require that states must provide the
public with notice of plans or plan revisions, opportunity to submit
written comments, and either automatically hold a public hearing on the
proposed plan or revision or provide the public with the opportunity to
request such a public hearing. See 40 CFR 51.102. Notice should include
making the proposed plan or revision available for public inspection in
at least one location in each region to which it will apply. See 40 CFR
51.102(d)(2). A notice of public hearing to consider the EHD Petition
for rulemaking was published on September 26, 2017, in the New Mexico
Register and in the Albuquerque Journal on the same day. See Attachment
C, 4. Pleadings filed with Air Board. The notice met all the applicable
Federal regulations. It solicited written comments and contained the
date, place, and time of the hearing. The notice also stated that the
public could obtain the reasoning for EHD's proposed rulemaking, the
rulemaking record of the EHD, and drafts of the proposed regulatory
changes on EHD's website.\2\ Additionally, the notice, which was
published in the New Mexico Register and the Albuquerque Journal,
provided a link to the agenda for the hearing. As noted in the public
notices published in the two local newspapers, on November 8, 2017, a
public hearing was held in accordance with State and local law and the
applicable public hearing requirements. EHD considered all the comments
it received and discussed these in its hearing testimony. Public
comments were made via letters, emails and in testimony prior to, and
during, the November 8, 2017, hearing. See Attachment C, 2. Public
Comment, and Attachment C, 4. Pleadings filed with Air Board.
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\2\ See http://www.cabq.gov/airquality/air-quality-control-board, at the link entitled ``Library of current Rulemaking
Petitions and all related documents.''
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Furthermore, on May 30, 2017, before the formal public notification
discussed above, EHD sent copies of a draft of the proposed regulations
to Albuquerque and Bernalillo County neighborhood associations; persons
holding air quality permits for GDF or ES-RICE; and members of the
community on the email list-serve of the Air Board.\3\ EHD's cover
letter invited these stakeholders to two public comment meetings held
on June 28, 2017, one held in the afternoon and one in the evening.
Four people attended the afternoon meeting. No one attended the evening
meeting.\4\ EHD received four written comments on its draft
regulations. An announcement of the petition filing was distributed by
email to the list-serve of the Air Board on August 29, 2017. This early
engagement is not required by the EPA rules.
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\3\ See Attachment C, 4. Pleadings filed with Air Board.
\4\ See Attachment C, 4. Pleadings filed with Air Board.
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Under these circumstances we do not agree with the commenters'
assertion that EHD did not notify the residents of Albuquerque and
Unincorporated Bernalillo County of their proposal, and we do not agree
that we should not approve the plan revisions for a purported lack of
adequate notice or opportunity to comment.
Comment: Several commenters stated that they want EPA to disapprove
the SIP revision because it does not respect the basic human rights of
residents of Albuquerque to be treated with fairness, decency, and
respect, nor their basic right to due process in the decision-making
that affects their communities. They requested that EPA remand the
proposed regulations back to Albuquerque-Bernalillo County Air Quality
Control Board to amend its request in order to address public
participation, public health, the locating of multiple source emitters
close to each other, and address appeal rights.
Additionally, several commenters stated that public participation
should not be considered a burden and expressed concern about the long
term physical and emotional health effects of the proposal, especially
for the more vulnerable members of the population--the elderly and
children. Commenters claimed that EPA's position is that since
Albuquerque is in compliance with the National Ambient Air Quality
Standards (NAAQS), public participation in Minor New Source Review
process is not necessary, stating that such rationale is not respectful
of the community living in this area that is subjected to the worst air
quality in the city and does not take into consideration environmental
justice principles. They further allege that both EPA and EHD failed to
take public health into consideration, and as a consequence, the public
will be affected by emergency room visit costs, and long-term health
implications that affect school and work attendance.
Response: The comments that pertain to public participation have
been addressed in a response above. In short, the EPA does not agree
that there was a failure to comply with the public notice and comment-
related provisions of the Act or the relevant EPA regulations and does
not agree that the revisions should be disapproved because of the
comments relating to an asserted lack of public participation.
Regarding the commenters' other requests that EPA deny or remand the
EHD's SIP revision, EPA is required to approve a SIP revision if it
meets all the applicable Federal requirements. See CAA 110(k)(3). As
noted in our proposal, in addition to the preconstruction permitting
program requirements of CAA section 110(a)(2)(C) and 40 CFR 51.160
through 51.164, our evaluation must ensure that the proposed plan
revisions comply with section 110(l) of the CAA, which states that the
EPA shall not approve a revision of the SIP if it would interfere with
any applicable requirement concerning attainment of the NAAQS,
reasonable further progress, or any other applicable requirement of the
Act. Thus,
[[Page 2650]]
under CAA section 110(l), the proposed MNSR SIP revision must not
interfere with attainment, reasonable further progress, or any other
applicable requirement of the Act. The commenters misstate and
oversimplify EPA's position. It is not our position that public
participation in the Minor New Source Review process is not necessary
because Albuquerque is in compliance with the NAAQS. EPA's statutory
responsibilities in reviewing a SIP are to ensure it meets all the
applicable requirements of the Act and the corresponding Federal
regulations. CAA section 110(a)(2)(C) requires regulation of the
modification or construction of any stationary source within the areas
covered by the SIP as necessary to assure that the NAAQS are achieved.
The minor NSR regulations found at 40 CFR 51.160 through 51.164 specify
the legally enforceable procedures and requirements which are
applicable to state minor NSR programs. Federal regulations allow
states to identify the types and sizes of facilities, buildings,
structures, or installations which will be subject to review under the
minor NSR program. See 40 CFR 51.160(e). To determine whether a
specific source type can be exempted from complying with a state's
approved minor NSR program, EPA must examine whether the state has
provided an adequate basis that the exempt emissions do not need to be
reviewed to ensure attainment and maintenance of the NAAQS in the
particular geographic areas covered by the program because they are
inconsequential to attainment or maintenance, considering the
particular air quality concerns in such areas. See 40 CFE 51.160(a) and
(e) and CAA section 110(l). Additionally, our evaluation must ensure
that the submittal complies with section 110(l) of the CAA before it
can be approved into the SIP.
Similar to the exemptions provided for in EPA's Tribal NSR Rule,
EHD seeks to exempt a small percentage of the total emissions emitted
within its jurisdiction from minor NSR review. EPA estimates that GDFs
are responsible for only 0.28% of the total emissions of volatile
organic compounds (VOC) in Albuquerque-Bernalillo County. This
percentage is not anticipated to change with the approval of the SIP
revision. VOC emissions from GDF and ES-RICE are federally regulated by
the National Emissions Standards for Hazardous Air Pollutants (NESHAP)
for GDF found in 40 CFR part 63, subpart CCCCCC; and by the NESHAP for
ES-RICE found in 40 CFR part 63, subpart ZZZZ. State regulatory
requirements for GDF and ES-RICE emissions of VOC are found at State
regulation 20.11.65 NMAC--Volatile Organic Compounds. These Federal and
State regulations impose emission limitations, management practices,
and testing and monitoring requirements in order to demonstrate
compliance with those requirements.
For GDF with throughput of more than 100,000 gallons per month, the
applicable Federal regulation (40 CFR part 63, subpart CCCCCC) reduces
emissions by about 90% by requiring the use of Stage I vapor control.
While smaller GDF are not required by Federal regulations to use Stage
I vapor control, the Air Board's regulations (20.11.65 NMAC--Volatile
Organic Compounds) requires most GDF with underground storage tanks
larger than 3000 gallons to have Stage I vapor control. This captures
many of the GDF with throughputs below 100,000 gallons per month. As a
result, between Federal and local regulations, most GDF have pollution
controls that reduce their emissions by about 90%. The only ones that
do not have these controls are the very small GDF (typically small
fleet owners) with low throughput and associated limited potential to
emit pollutants which are hazardous to human health and wellbeing.
Regarding ES-RICE, the pollutants which are emitted from ES-RICE
and may be relevant to NAAQS attainment are: ozone, NO2, PM,
CO and SO2. There are approximately 445 ES-RICEs in the
County, and the applicable regulations only permit them to operate
during emergencies, other than the few hours which are necessary each
year to test and maintain the engines. See Attachment C, 4. Pleadings
filed with Air Board. Because these emergency generators operate very
few hours a year, their emissions are very low. When applying EHD's
actual emission inventory estimates of 24 hours per year of operation,
each ES-RICE will only emit about 0.26 tons per year (tpy) of combined
pollutants.\5\
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\5\ When using an assumed maximum of 500 hours of operation per
year for each ES-RICE, EPA has previously concluded that a 500 hours
per year limit would result in combined pollutant (NO2,
PM, CO and SO2) emissions of 5.5 tons per year or less
from each ES-RICE. See 78 FR 15296 (March 11, 2013).
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Emissions from these source categories are low enough that it is
unlikely that such emissions would have a meaningful impact on
continued NAAQS attainment. Moreover, the SIP revisions do not change
or eliminate any of the controls required by NESHAP, and the approval
of these SIP revisions does not obviate the need for GDF and ES-RICE
sources to comply with all applicable NESHAP requirements--including
emissions limitations. See Attachment C, 4. Pleadings filed with Air
Board.
Concerning the public health considerations mentioned by the
commenters, EPA was required by the CAA to promulgate NAAQS for
pollutants which are considered harmful to public health. The CAA
identifies two types of NAAQS--primary and secondary. The primary
standards provide public health protection, including the protection of
sensitive populations such as asthmatics, children, and the elderly.
All areas within EHD's jurisdiction are currently in attainment for all
NAAQS. See Attachment C, 4. Pleadings filed with Air Board, and 82 FR
29421 (June 29, 2017). The approval of this SIP revision will not cause
any degradation of air quality, and EHD was legally obligated to
demonstrate this fact to the EPA. Appendix V to 40 CFR part 51 requires
that EHD submit to the EPA a demonstration that will show
noninterference with the attainment of the NAAQS under Section 110(1)
of the Clean Air Act. The Section 110(l) demonstration submitted to EPA
showed that there will be no degradation of air quality and that
Bernalillo County will continue its attainment status of the NAAQS to
protect public health. See our proposal, 84 FR 26057, section III.C.
In their SIP submittal, EHD presented NAAQS monitoring data for
each pollutant emitted by GDF and ES-RICE showing the concentration of
each in the ambient air in the County compared to the relevant Federal
standard. The data show the County area has been in attainment for all
the NAAQS for at least the past ten years and has not been in violation
of any NAAQS since 1996. The County has maintained attainment for the
NAAQS the entire time during which Federal NESHAP emission requirements
for these source categories have been in effect. EHD's proposal will
not change those requirements, and thus, would not result in an
increase in emissions. Review of the EHD NAAQS monitoring data showed
that concentrations of most pollutants have trended downward or
remained steady over at least the last ten years. These trends support
that the air quality is improving overall in the County. See our
proposal, 84 FR 26057, section III. C., and Attachment C, 4. Pleadings
filed with Air Board. Therefore, we find that EHD's proposal will not
interfere with attainment of any NAAQS. See Attachment C, 4. Pleadings
filed with Air Board.
[[Page 2651]]
Based on these historical trends and supporting air quality
monitoring data documenting air quality improvements throughout the
State, we believe the proposed Minor NSR SIP revision meets the
requirements of CAA section 110(l), and that the implementation of
these rules will not interfere with any applicable requirement
concerning attainment, reasonable further progress, maintaining PSD
increment, or any other applicable requirement of the CAA.
Although qualifying GDFs and ES-RICEs will now be exempt from the
Minor NSR program, EHD will post on its website all Air Quality
Notifications (AQN) issued during the previous month and all those
issued that are currently active. See 20.11.39.15 NMAC. This
information will include the name and location of each facility. It
will also include information enabling members of the public to contact
EHD about any AQN it has issued. Thus, the public will have access to
the information for any GDF or ES-RICE that EHD has issued an AQN.
Comments regarding the locating of multiple source emitters close to
each other are addressed in the last response below.
Comment: Commenters stated that this proposed change is the latest
effort to hinder public participation and further stated that perhaps
informing the public, diligent review, and doing the job that taxpayers
have paid staff at the Albuquerque Environmental Health Department to
do is too burdensome.
Response: As discussed, above, in response to other comments, the
EPA is required to approve SIP revisions that meet all applicable
requirements, and the EPA has determined that these revisions meet such
requirements. As also discussed, above, the EPA has determined that the
submission reflects satisfaction of the public participation-related
provisions of the Act and EPA's relevant regulations. In any event,
regarding the comments which stated that the EHD approved the rule in
order to relieve its administrative burden, EHD indicated that their
proposed regulations are needed to allow EHD permitting staff to focus
on permitting of larger sources with more significant air quality
impacts, for which the applicable regulatory scheme provides more
discretion and requires more technical judgment than the regulations
that apply to GDF and ES-RICE. EHD also stated that the process
associated with GDF permits has caused significant opportunity costs
for the EHD that are not justified based on the amount of emissions
produced by GDF. See Attachment C, 4. Pleadings filed with Air Board.
The EHD explained that GDF and ES-RICE represent a minimal
potential contribution of pollutants to local air quality compared to
emissions from other sources. Their experience has shown that a
majority of permitting staff time has been devoted to managing the
process required by existing Part 41 (11-20-41) for permit applications
for these less significant contributors. EHD said that about 80% of
their permit staff resources are spent in permitting these two source
categories and devoting the majority of an air quality agency's
permitting resources to sources with minimal impact on air quality is
not a wise use of resources. EHD has determined that this imbalance in
resource allocation does not serve the public interest because it
distracts EHD from a focus on larger facilities with more potential to
impact air quality, and, as explained above, EPA is required to approve
all SIP revisions that meet the applicable requirements.
Comment: Some commenters stated that the proposed rule does not
require air dispersion modeling, referring to a statement in EHD's
proposal that ``the department shall not require any part 39 source to
submit air dispersion modeling with its AQN application''.
Response: As noted, above, in response to other comments, VOC
emissions from GDF and ES-RICE are inconsequential. Neither GDF nor ES-
RICE require air quality dispersion modeling. GDFs emit VOCs in
quantities which do not require modeling because their VOC emissions
are less than the EHD minor NSR threshold level of 10 lbs/hr or 25 tpy.
Their VOC emissions are modeled county-wide as an ozone component to
determine whether they are in compliance with the ozone NAAQS.
ES-RICEs do not require modeling because of their infrequent and
unpredictable hours of operation. Air quality dispersion modeling is
done to predict the impact of expected emissions. The operation of an
emergency generator is inherently unpredictable because it operates
only during emergencies except for the few hours an engine must be
operated periodically to maintain the engine's functionality. Thus, the
necessary input to a model (the expected emissions) cannot be
accurately provided to the modeler. Thus, modeling is not useful for
emergency engine operation.
Recently, the EHD entered into a new contract with Sonoma
Technology, Inc. (STI) to prepare the Albuquerque/Bernalillo County
Ground-Level Ozone Photochemical Modeling and Analysis. This modeling
study will emphasize ozone source contribution analysis to: Identify
source contributions from mobile, industrial/stationary sources, and
biogenic emissions; evaluate transport (international, interstate, and
intrastate) versus local emissions contributions; evaluate events
versus local emissions contributions to ozone; conduct VOC/NOx
sensitivity analysis of ozone levels in Albuquerque-Bernalillo; and
address other scenarios. This updated modeling will give EHD the most
recent scientific analysis based on the most recent air quality
information with which to determine what control strategies, if any,
might be appropriate to protect Albuquerque-Bernalillo County
attainment with the new 2015 ozone standard.
Comment: One commenter stated that they oppose approval of the SIP
revision submitted by the EHD which waives permitting requirements for
GDF because the EHD did not provide adequate justification for its
request in 2017. The commenter alleges that EPA mischaracterizes the
NAAQS ozone data as trending downward when the values appear to
fluctuate. The commenter further stated that it is possible that the
ozone data for 2017 and 2018 would show increases, with levels
exhibiting a cyclic pattern and the same could be said for nitrogen
dioxide. The commenter stated that there have been at least two years
of particulate matter (PM10) violations within the last 10
years, and that the most recent (2016) finding for sulphur dioxide
shows a secondary violation. Further, the commenter claimed that the
EPA staff recommendation for approval is not supported by adequate
evidence.
Response: We do not agree with the commenter that the EHD did not
provide adequate justification for its proposal request. As explained
above, in order to determine whether a specific source type can be
exempted from complying with a state's approved minor NSR program, EPA
must examine whether the state has provided an adequate basis that the
exempt emissions do not need to be reviewed to ensure attainment and
maintenance of the NAAQS in the particular geographic areas covered by
the program because they are inconsequential to attainment or
maintenance, considering the particular air quality concerns in such
areas. GDF and ES-RICE make up 62.2% of the 1088 authorized stationary
sources in Albuquerque-Bernalillo County. See Attachment C, 4.
Pleadings filed with Air Board. As we noted in our proposed approval,
the only pollutants emitted from GDFs are VOC. The VOC emitted from
GDFs account for only about 0.28% of the VOC in the entire County. Each
ES-RICE only emits about
[[Page 2652]]
0.26 tpy of VOC, NO2, PM, CO and SO2 combined.
Therefore, these sources generate emissions that are inconsequential to
the area's ability to attain the NAAQS.
As noted, above, in response to other comments, a majority of EHD
permitting staff time is spent on permits for GDF and ES-RICE although,
relatively, they contribute very little to overall air pollution, and
EHD determined that devoting most of its time to sources that have an
inconsequential impact on air quality is not an effective use of public
resources. See Attachment C, 4. Pleadings filed with Air Board.
Further, GDF or ES-RICE which are located at a major source, or at a
facility which requires an air quality construction permit because of
other activities, would not be eligible for an AQN.
The SIP revision imposes the same air quality control requirements
on GDF and ES-RICE as is currently applied through issuance of
individualized permits and contains compliance mechanisms to assure
that enforcement actions can be brought against owners or operators of
these sources which receive an AQN. See Attachment C, 4. Pleadings
filed with Air Board. EHD's proposal will improve EHD's permitting
process by allowing it to dedicate more time to its larger and more
complex air quality sources where more discretion and technical
judgment are required. EHD's proposal does not result in any changes to
the existing substantive air quality requirements for GDF and ES-RICE
that are governed by NESHAP. See Attachment C, 4. Pleadings filed with
Air Board. As explained in a response above, the SIP revision meets all
Federal requirements for minor new source review and the requirements
of section 110(l) of the Clean Air Act.
We disagree that we mischaracterized the NAAQS ozone data. As we
discussed in our proposed approval, compliance with the 8-hour ozone
standard has improved county-wide with ozone pollutant concentrations
trending downward since the late 1980's. See EPA's Air Quality System
(AQS) database. As shown on Table 1 in the proposal, the ozone
concentration has declined overall from 0.073 ppm in 2006 to 0.065 ppm
in 2016. See our proposal, 84 FR 26057, section III.C., page 26060.
Further, local ambient ozone levels have been in decline since the
2010-2012 design value assessment period, and ozone concentrations
since 2006 have remained below the Federal standard in effect at the
time. EPA has amended the ozone NAAQS over time, lowering the
concentration necessary for attainment. In 1997, EPA set the
concentration at 0.084 parts per million. In 2008, EPA changed this to
0.075 parts per million. In 2015, EPA changed it again to 0.070 parts
per million. Albuquerque and Bernalillo County have remained in
continuous compliance with each new standard promulgated by EPA, and
continue to be in compliance for 2017 and 2018. See https://www.epa.gov/air-trends/air-quality-design-values.
With regard to Nitrogen Dioxide (NO2) levels, compliance
with the 1-Year NO2 and 1-hour NO2 standards has
improved county-wide with NO2 pollutant concentrations
trending downward since the late 1990's. The NO2 levels have
remained relatively stable for the last decade overall for both the 1-
hour and annual standards. As shown on Table 2 in the proposal, the
NO2 concentration has declined overall from 15.4 parts per
billion (ppb) in 2006 to 10.4 ppb in 2016. At no time in that period
have levels exceeded either the 1-hour or annual standard. Rather,
levels have consistently remained well below the ambient air
concentrations specified by the standard of 53 ppb. Furthermore,
ambient NO2 levels have been in decline since the 2011-2012
design value assessment period, and NO2 concentrations since
2006 have remained well below the Federal standard in effect.
NO2 data from any years post-2016 were not yet available
when the EHD proposed regulations were finalized.
We disagree that there have been at least two years of particulate
matter (PM10) violations within the past 10 years. The
PM10 standard is not expressed as a simple concentration.
Instead, EPA set a 24-hour concentration of 150 micrograms per cubic
meter (mg/m\3\) and then established that the standard would be
attained if the number of days per calendar year with a 24-hour average
concentration above 150 mg/m\3\ is equal to or less than one when
averaged over three calendar years. The two readings greater than 150
mg/m\3\, when averaged over three calendar years each, are below the
standard of 150 mg/m\3\. As shown in Table 4, PM10 levels in
the County area (as measured by the second highest 24-hour average per
year) have fluctuated between 102 mg/m\3\ and 153 mg/m\3\ over the last
decade. Also, the overall trend over the last decade is relatively
stable and has been below the standard of 150 mg/m\3\ on average.
Albuquerque and Bernalillo County have remained in attainment for the
PM10 standard for the entire period from 2006 to 2016 and
have never been designated as nonattainment prior to that period,
despite the dusty desert environment in which the city and county are
situated. See Attachment C, 4. Pleadings filed with Air Board.
We disagree that the most recent (2016) design value for the sulfur
dioxide (SO2) level shows a secondary violation. Table 6 in
our proposed approval shows SO2 design values and how they
compare to the 1-hour primary NAAQS standard, not the 3-hour secondary
standard. The maximum permissible concentration under the 1-hour
primary standard is 75 parts per billion (ppb). The maximum permissible
concentration under the 3-hour secondary NAAQS standard is 0.5 parts
per million (ppm). As the design value is only 6 ppb for the 1-hour
NAAQS for 2016 and the previous 3 years are only 5 ppb each, the
SO2 design values are well below any violation of the
primary standard of 75 ppb or the secondary standard of .5 ppm. Note
that on Table 6 in our proposal, the design value for each year is
actually measured in ppb, not in mg/m\3\ as shown.
Comment: Some commenters stated that there is a failure to assess
the effect of the recently changed zoning and land use ordinances of
the City of Albuquerque on where, and how many, gasoline stations may
be located near and within residential areas.
Response: Neither the CAA nor the corresponding Federal regulations
specifically require that EPA assess the effect of local zoning and
land use ordinances when determining whether to approve a minor NSR SIP
revision. Rather, EPA is required to ensure that the revision complies
with the applicable requirements found in CAA 110(a)(2)(C), CAA 110(l),
40 CFR part 51, subpart I, 40 CFR part 51, subpart F, and appendix V to
40 CFR part 51. We have explained in the responses above, and in our
proposed rulemaking, how the SIP revision meets the requirements of CAA
110(a)(2)(C), CAA 110(l), 40 CFR part 51, subpart I, 40 CFR part 51,
subpart F, and appendix V to 40 CFR part 51. Appendix V to 40 CFR part
51 requires that states who submit SIP revisions to EPA for approval
provide evidence that they have the necessary legal authority under
state law to adopt and implement the plan. EHD provided evidence of
this authority. See Attachment C, 4. Pleadings filed with Air Board.
III. Final Action
We are approving the revisions to the City of Albuquerque-
Bernalillo County Minor NSR program dated January 18, 2018 that
includes supplemental information provided on April 29, 2019 as
proposed. The revisions were adopted and submitted in accordance with
the requirements of the CAA and
[[Page 2653]]
the EPA's regulations regarding SIP development at 40 CFR part 51.
Additionally, we have determined that the submitted revisions to the
City of Albuquerque-Bernalillo County Minor NSR program are consistent
with CAA section 110(l), the EPA's regulations at 40 CFR 51.160--51.164
and the associated policy and guidance. Therefore, under section 110 of
the Act, the EPA approves into the New Mexico SIP for the City of
Albuquerque-Bernalillo County the following revisions adopted on
November 8, 2017, and submitted to the EPA on January 18, 2018:
Addition of 20.11.39 NMAC PERMIT WAIVERS AND AIR QUALITY
NOTIFICATIONS FOR CERTAIN SOURCE CATEGORIES
20.11.39.1 NMAC Issuing Agency
20.11.39.2 NMAC Scope
20.11.39.3 NMAC Statutory Authority
20.11.39.4 NMAC Duration
20.11.39.5 NMAC Effective Date
20.11.39.6 NMAC Objective
20.11.39.7 NMAC Definitions
20.11.39.8 NMAC Variances
20.11.39.9 NMAC Savings Clause
20.11.39.10 NMAC Severability
20.11.39.11 NMAC Documents
20.11.39.12 NMAC Permit Waivers
20.11.39.13 NMAC Requirements for Source Categories to Which
Part 39 Applies
20.11.39.14 NMAC Air Quality Notification Application
20.11.39.15 NMAC AQN Application Review
20.11.39.16 NMAC Transfer of Prior Authorizations to AQNs
20.11.39.17 NMAC Compliance and Enforcement
20.11.39.18 NMAC Amending and Air Quality Notification
20.11.39.19 NMAC Fees
20.11.39.20 NMAC AQN Cancellation
20.11.41 NMAC CONSTRUCTION PERMITS
20.11.41.2(E)(2) NMAC Additional Permit Requirements
20.11.41.2(G) NMAC Permissive Waiver
IV. Incorporation by Reference
In this rule, we are finalizing regulatory text that includes
incorporation by reference. In accordance with 5 U.S.C. 552(a) and 1
CFR part 51, the revisions to the New Mexico, Albuquerque/Bernalillo
County regulations, as described in the Final Action section above, are
requirements incorporated by reference. We have made, and will continue
to make, these materials generally available electronically through
www.regulations.gov and in hard copy at the EPA Region 6 office (please
contact Rick Barrett for more information).
V. Statutory and Executive Order Reviews
Under the CAA, 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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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, 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 CAA; 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the proposed rule does not have tribal implications and will
not impose substantial direct costs on tribal governments or preempt
tribal law as specified by Executive Order 13175 (65 FR 67249, November
9, 2000).
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 March 16, 2020. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: December 23, 2019.
Kenley McQueen,
Regional Administrator, Region 6.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
[[Page 2654]]
Authority: 42 U.S.C. 7401 et seq.
Subpart GG--New Mexico
0
2. In Sec. 52.1620(c), the second table titled ``EPA Approved
Albuquerque/Bernalillo County, NM Regulations'' is amended by adding an
entry in alphanumerical order for ``Part 39 (20.11.39 NMAC)'' and
revising the entry for ``Part 41 (20.11.41 NMAC)'' to read as follows:
Sec. 52.1620 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Albuquerque/Bernalillo County, NM Regulations
----------------------------------------------------------------------------------------------------------------
State
approval/
State citation Title/subject effective EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Part 39 (20.11.39 NMAC).......... Permit Waivers and 1/18/2018 1/16/2020, [Insert
Air Quality Federal Register
Notifications for citation].
Certain Sources.
* * * * * * *
Part 41 (20.11.41 NMAC).......... Construction Permits 1/18/2018 1/16/2020, [Insert
Federal Register
citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2020-00286 Filed 1-15-20; 8:45 am]
BILLING CODE 6560-50-P