[Federal Register Volume 77, Number 198 (Friday, October 12, 2012)]
[Proposed Rules]
[Pages 62200-62209]
[FR Doc No: 2012-25156]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0033; FRL-9740-5]

Approval and Promulgation of Implementation Plans; New Mexico;
Revisions to the New Source Review (NSR) State Implementation Plan
(SIP); Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the New Mexico SIP to
update the New Mexico NNSR and PSD SIP permitting programs consistent
with federal requirements. EPA proposes to find that these revisions to
the New Mexico SIP meet the Federal Clean Air Act (the Act or CAA) and
EPA regulations, and are consistent with EPA policies. New Mexico
submitted the PSD and NNSR SIP permitting revisions in two SIP
submittals on June 11, 2009, and May 23, 2011. EPA is proposing this
action under section 110 and parts C and D of the Act.

DATES: Comments must be received on or before November 13, 2012.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-

OAR-2011-0033, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select
``Air'' before submitting comments.
     Email: Ms. Adina Wiley at<EMAIL_ADDRESS>Please also
send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
     Fax: Ms. Adina Wiley, Air Permits Section (6PD-R), at fax
number<PHONE_NUMBER>.
     Mail: Ms. Adina Wiley, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
     Hand or Courier Delivery: Ms. Adina Wiley, Air Permits
Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only
between the hours of 8 a.m. and 4 p.m. weekdays, and not on legal
holidays. Special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2011-0033. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at<PHONE_NUMBER> to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a fee of 15 cents
per page 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 75202.
    The State submittal is also available for public inspection during
official business hours by appointment: New Mexico Environment
Department, Air Quality Bureau, 1301 Siler Road, Building B, Santa Fe,
New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Ms. Adina Wiley, Air Permits Section
(6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>; fax number
214-665-6762; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.

Table of Contents

I. Background for Our Proposed Action
II. Analysis of State Submittals
    A. Analysis of Submitted Revisions to the New Mexico Prevention
of Significant Deterioration Permitting SIP Program
    1. NSR PM2.5 Rule
    a. What are the requirements of the NSR PM2.5 Rule
for PSD SIP Programs?
    b. How does the May 23, 2011 New Mexico PSD submittal satisfy
the NSR PM2.5 Rule?
    i. ``Condensables'' Provision
    2. PM2.5 PSD Increment--SILs--SMC Rule
    a. What are the requirements of the PM2.5 PSD
Increment--SILs--SMC Rule for PSD SIP Programs?
    i. What are PSD Increments?
    ii. What are PSD SILs and SMC?
    (a) Significant Impact Levels (SILs)
    (b) Significant Monitoring Concentration (SMC)
    (c) SILs--SMC Litigation
    b. How does the May 23, 2011 New Mexico PSD submittal satisfy
the PM2.5 PSD Increment--SILs--SMC Rule?
    3. Reasonable Possibility in Recordkeeping Rule
    a. What are the requirements of the Reasonable Possibility in
Recordkeeping Rule for PSD SIP Programs?
    b. How does the May 23, 2011 New Mexico PSD submittal satisfy
the Reasonable Possibility in Recordkeeping Rule?
    B. Analysis of Submitted Revisions to the New Mexico
Nonattainment New Source Review Permitting SIP Program
    1. Phase 2 8-Hour Ozone Implementation Rule
    a. What are the requirements of the Phase 2 8-Hour Ozone
Implementation Rule for NNSR SIP Programs?
    b. How does the June 11, 2009 New Mexico NNSR submittal satisfy
the Phase 2 8-Hour Ozone Implementation Rule?
    2. NSR PM2.5 Rule
    a. What are the requirements of the NSR PM2.5 Rule
for NNSR SIP Programs?
    b. How does the May 23, 2011 New Mexico NNSR submittal satisfy
the NSR PM2.5 Rule?
    3. PM2.5 PSD Increment--SILs--SMC Rule
    a. What are the requirements of the PM2.5 PSD
Increment--SILs--SMC Rule for NNSR SIP Programs?
    b. How does the May 23, 2011 New Mexico NNSR submittal satisfy
the PM2.5 PSD Increment--SILs--SMC Rule?
    4. Reasonable Possibility in Recordkeeping Rule
    a. What are the requirements of the Reasonable Possibility in
Recordkeeping Rule for NNSR SIP Programs?
    b. How does the May 23, 2011 New Mexico NNSR submittal satisfy
the Reasonable Possibility in Recordkeeping Rule?
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. Background for Our Proposed Action

    The Act at section 110(a)(2)(C) requires states to develop and
submit to EPA for approval into the state SIP, preconstruction review
and permitting programs applicable to certain new and modified
stationary sources of air pollutants for attainment and nonattainment
areas that cover both major and minor new sources and modifications,
collectively referred to as the New Source Review (NSR) SIP. The CAA
NSR SIP program is composed of three separate programs: PSD, NNSR, and
Minor NSR. PSD is established in part C of title I of the CAA and
applies in areas that meet the NAAQS--

``attainment areas''--as well as areas where there is insufficient
information to determine if the area meets the NAAQS--``unclassifiable
areas.'' The NNSR SIP program is established in part D of title I of
the CAA and applies in areas that are not in attainment of the NAAQS--
``nonattainment areas.'' The Minor NSR SIP program addresses
construction or modification activities that do not emit, or have the
potential to emit, beyond certain thresholds and thus do not qualify as
``major'' and applies regardless of the designation of the area in
which a source is located. Together, these programs are referred to as
the NSR program. EPA regulations governing the criteria that states
must satisfy for EPA approval of the NSR programs as part of the SIP
are contained in 40 CFR 51.160-51.166; 52.21, 52.24; and part 51,
Appendix S.
    New Mexico submitted on June 11, 2009, and May 23, 2011, a
collection of regulations for approval by EPA into the New Mexico SIP
for PSD and NNSR permitting regulations. New Mexico adopted these
regulations and submitted them for SIP approval to ensure consistency
with the federal PSD and NNSR permitting requirements associated with
two recently promulgated NAAQS for 8-hour ozone and PM2.5.
Specifically, the June 11, 2009, and May 23, 2011, New Mexico SIP
submittals address PSD and NNSR permitting requirements promulgated in
EPA's Phase 2 8-hour Ozone Implementation Rule (70 FR 71612, November
29, 2005), NSR PM2.5 Rule (73 FR 28321, May 16, 2008),
PM2.5 PSD Increment--Significant Impact Levels (SILs)--
Significant Monitoring Concentration (SMC) Rule (75 FR 64864, October
20, 2010) and Reasonable Possibility in Recordkeeping Rule (72 FR
72607, December 21, 2007). Today's proposed action and the accompanying
TSD present our rationale for proposing approval of these regulations
as meeting the minimum federal requirements for the adoption and
implementation of the PSD and NNSR SIP permitting programs. Because the
PSD and NNSR SIP permitting programs are two separate, distinct
programs under Title I of the Act, this proposed action and the
accompanying TSD will present a review of the submitted New Mexico
rules first for consistency with PSD SIP requirements, followed by the
NNSR SIP requirements as applicable.

II. Analysis of State Submittals

June 11, 2009 Submittal

    In a letter dated June 11, 2009, Governor Richardson submitted
revisions to the New Mexico SIP that were adopted by the New Mexico
Environmental Improvement Board (NM EIB) on July 31, 2009, and became
effective on August 31, 2009. This SIP submittal included revisions to
the following Parts of the New Mexico Air Code (NMAC):
     Revisions to the General Definitions at 20.2.2 NMAC,
     Revisions to the New Mexico PSD Permitting Program at
20.2.74 NMAC, and
     Revisions to the New Mexico NNSR Permitting Program at
20.2.79 NMAC.
    Note that EPA SIP-approved the June 11, 2009 revisions to the PSD
program at 20.2.74 NMAC on November 26, 2010 (75 FR 72688), effective
December 27, 2010. The rulemaking docket for this action is EPA-R06-
OAR-2009-0656. EPA has taken no action to date on the June 11, 2009
submitted revisions to 20.2.2 NMAC or 20.2.79 NMAC.
    This review will not cover the revisions to the General Definitions
for the New Mexico SIP at 20.2.2 NMAC, submitted on June 11, 2009.
These provisions are severable from our review of the PSD and NNSR
program submittals because each permitting program contains program-
specific definitions used in place of the General Definitions. The
program-specific definitions for the PSD and NNSR programs are SIP-
approved at <IP_ADDRESS> and <IP_ADDRESS> NMAC, respectively. The revisions
to 20.2.2 NMAC submitted on June 11, 2009, remain before EPA for review
and will be addressed in a separate action.

May 23, 2011 Submittal

    In a letter dated May 23, 2011, Governor Martinez submitted
revisions to the New Mexico SIP that were adopted by the NM EIB on May
3, 2011, and became effective on June 3, 2011. This SIP submittal
included revisions to the following Parts of the New Mexico Air Code:
     Revisions to the New Mexico PSD Permitting Program at
20.2.74 NMAC, and
     Revisions to the New Mexico NNSR Permitting Program at
20.2.79 NMAC.

A. Analysis of Submitted Revisions to the New Mexico Prevention of
Significant Deterioration Permitting SIP Program

    EPA's most recent approval to the New Mexico PSD SIP program was on
July 20, 2011, at 20.2.74 NMAC, where we updated our approval of the NM
PSD SIP to include the revisions adopted by the State on January 1,
2011, for the permitting of greenhouse gas emissions consistent with
EPA's Greenhouse Gas Tailoring Rule. See 76 FR 43149. Since that time,
the State of New Mexico has adopted and submitted for EPA approval one
revision to the PSD program on May 23, 2011, affecting the following
sections:
     <IP_ADDRESS> NMAC--Definitions,
     <IP_ADDRESS>0 NMAC--Obligations of Owners or Operators of
Sources,
     <IP_ADDRESS>3 NMAC--Ambient Impact Requirements,
     <IP_ADDRESS>6 NMAC--Monitoring Requirements,
     <IP_ADDRESS>3 NMAC--Additional Requirements for Sources
Impacting Class I Federal Areas,
     <IP_ADDRESS>2 NMAC--Significant Emission Rates,
     <IP_ADDRESS>3 NMAC--Significant Monitoring Concentrations,
     <IP_ADDRESS>4 NMAC--Allowable PSD Increment, and
     <IP_ADDRESS>5 NMAC--Maximum Allowable Increases for Class I
Waivers.
    This revision has been submitted to adopt and implement the
requirements for PM2.5 PSD SIPs in accordance with EPA's May
16, 2008 and October 20, 2010 final NSR PM2.5 Rule and
PM2.5 PSD Increments--SILs--SMC Rule and the December 21,
2007 Reasonable Possibility in Recordkeeping Rule. The TSD for this
rulemaking includes a detailed analysis of the submitted revision and
demonstration of how the submittal addresses the federal requirements.
The following is a summary of how EPA proposes to find that the May 23,
2011 submitted revisions to the New Mexico PSD SIP meet the
requirements of the specified final rules.
1. NSR PM2.5 Rule
a. What are the requirements of the NSR PM2.5 Rule for PSD
SIP Programs?
    On May 16, 2008, EPA finalized the NSR PM2.5 Rule to
implement the PM2.5 NAAQS. See 73 FR 28321. As a result of
EPA's final NSR PM2.5 Rule, states were required to submit
applicable SIP revisions to EPA no later than May 16, 2011, to address
this Rule's PSD and NNSR SIP requirements. With respect to PSD
permitting, the SIP revision submittals are required to meet the
following PSD SIP requirements to implement the PM2.5 NAAQS:
(1) Require PSD permits to address directly emitted PM2.5
and precursor pollutants; (2) establish significant emission rates for
direct PM2.5 and precursor pollutants (including sulfur
dioxide (SO2) and NOX); and (3) account for gases
that condense to form particles (condensables) in PM2.5 and
PM10 emission limits in PSD permits.

b. How does the May 23, 2011 New Mexico PSD submittal satisfy the NSR
PM2.5 Rule?
    New Mexico's May 23, 2011, SIP revision submittal establishes that
the State's existing NSR permitting program requirements for PSD apply
to the PM2.5 NAAQS and its precursors. Specifically, the SIP
revision submittal adopts and submits for EPA approval the following
NSR PM2.5 Rule PSD provisions: (1) the requirement for NSR
permits to address directly emitted PM2.5 and precursor
pollutants; (2) significant emission rates for direct PM2.5
and precursor pollutants (SO2 and NOX) and (3)
the requirement that condensable PM be addressed in enforceable PM,
PM10 and PM2.5 emission limits included in PSD
permits. EPA proposes to find that New Mexico's May 23, 2011 SIP
revision submittal meets the NSR PM2.5 Rule for PSD and
section 110 and part C of the CAA.
i. ``Condensables'' Provision
    In the NSR PM2.5 Rule, EPA revised the definition of
``regulated NSR pollutant'' for PSD SIP purposes to add a paragraph
providing that ``particulate matter (PM) emissions, PM2.5
emissions and PM10 emissions'' shall include gaseous
emissions from a source or activity which condense to form particulate
matter at ambient temperatures and that on or after January 1, 2011,
such condensable particulate matter shall be accounted for in
applicability determinations and in establishing emissions limitations
for PM, PM2.5 and PM10 in permits. See 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(vi) and ``Emissions Offset
Interpretative Ruling'' (40 CFR part 51, Appendix S). A similar
paragraph was added to the NNSR SIP provisions of the NSR
PM2.5 Rule but does not include ``particulate matter (PM)
emissions.'' See 40 CFR 51.165(a)(1)(xxxvii)(D).
    On March 16, 2012, EPA proposed a rulemaking to amend the
definition of ``regulated NSR pollutant'' promulgated in the NSR
PM2.5 Rule regarding the PM condensable provision at 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(i), and EPA's Emissions Offset
Interpretative Ruling.\1\ See 77 FR 15656. The rulemaking proposes to
remove the inadvertent requirement in the NSR PM2.5 Rule
that the measurement of condensable ``particulate matter emissions'' be
included as part of the measurement and regulation of ``particulate
matter emissions.'' The term ``particulate matter emissions'' includes
particles that are larger than PM2.5 and PM10 and
is an indicator measured under various New Source Performance Standards
(NSPS) (40 CFR part 60).\2\
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    \1\ The comment period for this proposed rulemaking ended May
15, 2012.
    \2\ In addition to the NSPS for PM, it is noted that states
regulated ``particulate matter emissions'' for many years in their
SIPs for PM, and the same indicator has been used as a surrogate for
determining compliance with certain standards contained in 40 CFR
part 63, regarding National Emission Standards for Hazardous Air
Pollutants.
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    New Mexico's May 23, 2011 SIP submittal revision includes EPA's
definition for regulated NSR pollutant for condensables (at 40 CFR
51.166(b)(49)(vi)), including the term ``particulate matter
emissions,'' as inadvertently promulgated in the NSR PM2.5
Rule. EPA is, however, proposing to approve into the New Mexico SIP
<IP_ADDRESS>(AS)(6) NMAC, the requirement that condensable PM be accounted
for in applicability determinations and in establishing emissions
limitations for PM2.5 and PM10. Upon final
approval of this proposal, New Mexico's condensable provision will be
consistent with the federal rule until EPA finalizes its March 16,
2012, rulemaking. Once EPA finalizes the March 16, 2012 rulemaking, the
NMED can choose to initiate further rulemaking to ensure consistency
with federal requirements.
2. PM2.5 PSD Increment--SILs--SMC Rule
a. What are the requirements of the PM2.5 PSD Increment--
SILs--SMC Rule for PSD SIP Programs?
    EPA finalized the PM2.5 PSD Increment--SILs--SMC Rule to
provide additional regulatory requirements under the PSD SIP program
regarding the implementation of the PM2.5 NAAQS for NSR. See
75 FR 64864. As a result, the PM2.5 PSD Increment--SILs--SMC
Rule required states to submit SIP revisions to adopt the required PSD
increments by July 20, 2012. Specifically, the SIP rule requires a
state's submitted PSD SIP revision to adopt and submit for EPA approval
the PM2.5 increments pursuant to section 166(a) of the CAA
to prevent significant deterioration of air quality in areas meeting
the NAAQS. States could also discretionarily choose to adopt and submit
for EPA approval SILs used as a screening tool (by a major source
subject to PSD) to evaluate the impact a proposed major source or
modification may have on the NAAQS or PSD increment and a SMC, (also a
screening tool) used by a major source subject to PSD to determine the
subsequent level of data gathering required for a PSD permit
application for emissions of PM2.5. More detail on the
PM2.5 PSD Increment--SILs--SMC Rule can be found in EPA's
October 20, 2010 final rule. See 75 FR 64864.
i. What are PSD Increments?
    Under section 165(a)(3) of the CAA, a PSD permit applicant must
demonstrate that emissions from the proposed construction and operation
of a facility ``will not cause, or contribute to, air pollution in
excess of any maximum allowable increase or allowable concentration for
any pollutant.'' In other words, when a source applies for a PSD SIP
permit to emit a regulated pollutant in an attainment or unclassifiable
area, the permitting authority implementing the PSD SIP must determine
if emissions of the regulated pollutant from the source will cause
significant deterioration in air quality. Significant deterioration
occurs when the amount of the new pollution exceeds the applicable PSD
increment, which is the ``maximum allowable increase'' of an air
pollutant allowed to occur above the applicable baseline concentration
\3\ for that pollutant. PSD increments prevent air quality in
attainment and unclassifiable areas from deteriorating to the level set
by the NAAQS. Therefore an increment is the mechanism used to estimate
``significant deterioration'' of air quality for a pollutant in an
area.
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    \3\ Section 169(4) of the CAA provides that the baseline
concentration of a pollutant for a particular baseline area is
generally the same air quality at the time of the first application
for a PSD permit in the area.
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    For PSD baseline purposes, a baseline area for a particular
pollutant emitted from a source includes the attainment or
unclassifiable/attainment area in which the source is located as well
as any other attainment or unclassifiable/attainment area in which the
source's emissions of that pollutant are projected (by air quality
modeling) to result in an ambient pollutant increase of at least 1
[mu]g/m\3\ (annual average). See 40 CFR 51.166(b)(15)(i) and (ii).
Under EPA's existing regulations, the establishment of a baseline area
for any PSD increment results from the submission of the first complete
PSD permit application and is based on the location of the proposed
source and its emissions impact on the area. Once the baseline area is
established, subsequent PSD sources locating in that area need to
consider that a portion of the available increment may have already
been consumed by previous emissions increases. In general, the
submittal date of the first complete PSD permit application in a
particular area is the operative ``baseline

date.'' \4\ On or before the date of the first complete PSD
application, emissions generally are considered to be part of the
baseline concentration, except for certain emissions from major
stationary sources. Most emissions increases that occur after the
baseline date will be counted toward the amount of increment consumed.
Similarly, emissions decreases after the baseline date restore or
expand the amount of increment that is available. See 75 FR 64864. As
described in the PM2.5 PSD Increment--SILs--SMC Rule,
pursuant to the authority under section 166(a) of the CAA EPA
promulgated numerical increments for PM2.5 as a new
pollutant \5\ for which the NAAQS were established after August 7,
1977,\6\ and derived 24-hour and annual PM2.5 increments for
the three area classifications (Class I, II and III) using the
``contingent safe harbor'' approach. See 75 FR 64864 at 64869 and table
at 40 CFR 51.166(c)(1).
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    \4\ Baseline dates are pollutant specific. That is, a complete
PSD application establishes the baseline date only for those
regulated NSR pollutants that are projected to be emitted in
significant amounts (as defined in the regulations) by the
applicant's new source or modification. Thus, an area may have
different baseline dates for different pollutants.
    \5\ EPA generally characterized the PM2.5 NAAQS as a
NAAQS for a new indicator of PM. EPA did not replace the
PM10 NAAQs with the NAAQS for PM2.5 when the
PM2.5 NAAQS were promulgated in 1997. EPA rather retained
the annual and 24-hour NAAQS for PM10 as if
PM2.5 was a new pollutant even though EPA had already
developed air quality criteria for PM generally. See 75 FR 64864
(October 20, 2010).
    \6\ EPA interprets 166(a) to authorize EPA to promulgate
pollutant-specific PSD regulations meeting the requirements of
section 166(c) and 166(d) for any pollutant for which EPA
promulgates a NAAQS after 1977.
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    In addition to PSD increments for the PM2.5 NAAQS, the
PM2.5 PSD Increment--SILs--SMC Rule amended the definition
at 40 CFR 51.166 and 52.21 for ``major source baseline date'' and
``minor source baseline date'' to establish the PM2.5 NAAQS
specific dates (including trigger dates) associated with the
implementation of PM2.5 PSD increments. See 75 FR 64864. In
accordance with section 166(b) of the CAA, EPA required the states to
submit revised implementation plans adopting the PM2.5 PSD
increments to EPA for approval within 21 months from promulgation of
the final rule (by July 20, 2012). Each state was responsible for
determining how increment consumption and the setting of the minor
source baseline date for PM2.5 would occur under its own PSD
program. Regardless of when a state begins to require PM2.5
increment analysis and how it chooses to set the PM2.5 minor
source baseline date, the emissions from sources subject to PSD for
PM2.5 for which construction commenced after October 20,
2010, (major source baseline date) consume the PM2.5
increment and therefore should be included in the increment analyses
occurring after the minor source baseline date is established for an
area under the state's revised PSD SIP program. New Mexico's May 23,
2011, submitted SIP revision adopts the PM2.5 increment
permitting requirements promulgated in the PM2.5 PSD
Increment--SILs--SMC Rule.
ii. What are PSD SILs and SMC?
    EPA's PM2.5 PSD Increment--SILs--SMC Rule also
established SILs and SMC for the PM2.5 NAAQS to address air
quality modeling and monitoring provisions for fine particle pollution
in areas protected by the PSD program. The SILs and SMC are numerical
values that represent thresholds of insignificant, i.e., de minimis,
modeled source impacts or monitored (ambient) concentrations,
respectively. The de minimis principle is grounded in a decision
described by the court case Alabama Power Co. v. Costle, 636 F.2d 323,
360 (D.C. Cir. 1980). In this case reviewing EPA's 1978 PSD
regulations, the court recognized that ``there is likely a basis for an
implication of de minimis authority to provide exemption when the
burdens of regulation yield a gain of trivial or no value.'' 636 F.2d
at 360. EPA established such values for PM2.5 in the
PM2.5 PSD Increment--SILs--SMC rule to be used as screening
tools by a major source subject to PSD to determine the subsequent
level of analysis and data gathering required for a PSD permit
application for emissions of PM2.5. See 75 FR 64864. As part
of the response to comments in the PM2.5 PSD Increment--
SILs--SMC Rule final rulemaking, EPA explained that the agency
considers that the SILs and SMC used as de minimis thresholds for the
various pollutants are useful tools that enable permitting authorities
and PSD applicants to screen out ``insignificant'' activities; however,
the fact remains that these values are not required by the Act as part
of an approvable SIP program. EPA believes that most states are likely
to discretionarily adopt the SILs and SMC because of the useful purpose
they serve regardless of our position that the values are not mandatory
as a part of the PSD SIP. Alternatively, states may develop and submit
more stringent values for EPA approval into the SIP if they desire to
do so or not develop SILs/SMC altogether. In any case, states are not
under any statutory SIP-related deadline for revising their PSD
programs to add these screening tools. See 75 FR 64864, 64900.
(a) Significant Impact Levels (SILs)
    SILs are numeric values derived by EPA that may be used to evaluate
the impact a proposed major source or modification may have on the
NAAQS or PSD increment. The primary purpose of the SILs is to identify
a level of ambient impact that is sufficiently low relative to the
NAAQS or increments that such impact can be considered insignificant or
de minimis. Although EPA has not previously incorporated every
application of the SILs into the PSD regulations, EPA historically
since 1980 has supported the use of the SILs as de minimis thresholds
to determine whether the predicted ambient impact resulting from the
emissions increase at a proposed major new stationary source or
modification is considered to cause or contribute to a violation of the
NAAQS. Numerous EPA statements and practices have also recognized the
use of SILs under the PSD program to determine: (1) When a proposed
source's ambient impacts warrants a comprehensive (cumulative) source
impact analysis \7\ and; (2) the size of the impact area within which
the air quality analysis is completed. See 75 FR 64864.
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    \7\ A cumulative analysis is a modeling analysis used to show
that the allowable emissions increase from the proposed source along
with other emission increases from existing sources, will not result
in a violation of either the NAAQS or increment.
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    In the PM2.5 PSD Increment--SILs--SMC Rule, EPA
established the SILs threshold which reflects the degree of ambient
impact on PM2.5 concentrations that can be considered de
minimis and would justify no further analysis or modeling of the air
quality impact of a source in combination with other sources in the
area because the source would not cause or contribute to an exceedance
of the PM2.5 NAAQS or the PM2.5 increments. See
75 FR 64864. The PM2.5 PSD Increment--SILs--SMC Rule
established SILs to evaluate the impact that a proposed new source or
modification may have on the PM2.5 NAAQS or increment. When
a proposed major new source or major modification of PM2.5
projects, through air quality modeling, an impact less than the
PM2.5 SILs, the proposed construction or modification is
considered to not have a significant air quality impact and would not
need to complete a cumulative impact analysis involving an analysis of
other sources in the area. Additionally, a source with a de minimis
ambient impact would not be considered to cause or contribute to a
violation of the PM2.5 NAAQS or increments.
    The PM2.5 PSD Increment--SILs--SMC Rule established the
PM2.5 SILs at

EPA's existing NNSR SIP regulations at 40 CFR 51.165(b) and the PSD SIP
regulations at 40 CFR 51.166(k)(2), 52.21(k)(2) and part 51, Appendix S
as optional screening tools. Prior to the PM2.5 PSD
Increment--SILs--SMC Rule, the concept of a SIL was not previously
incorporated into the PSD SIP regulations but was present in the NNSR
SIP regulations. The regulations in 40 CFR 51.165(b) \8\ establish the
minimum requirements for NNSR programs in SIPs but apply specifically
to major stationary sources and major modifications located in
attainment or unclassifiable/attainment areas. Where a PSD source
located in such areas may have an impact on an adjacent nonattainment
area, the PSD source must still demonstrate that it will not cause or
contribute to a violation of the NAAQS in the adjacent nonattainment
area. Where emissions from a proposed PSD source or modification would
have an ambient impact in a nonattainment area that would exceed the
SILs, the source is considered to cause or contribute to a violation of
the NAAQS and may not be issued a PSD permit without obtaining
emissions reductions to compensate for its impact. See 40 CFR
51.165(b)(2)-(3). New Mexico's May 23, 2011 SIP submittal addresses the
PM2.5 SILS thresholds and provisions promulgated in the
PM2.5 PSD Increment--SILs--SMC Rule at 40 CFR 51.165(b)(2)
and 51.166(k)(2).
---------------------------------------------------------------------------

    \8\ 40 CFR 51.165(b) require states to adopt and submit for
approval by EPA as a SIP revision, a preconstruction review permit
program for major stationary sources and major modifications that
wish to locate in an attainment or unclassifiable area but would
cause or contribute to a violation of the NAAQS.
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(b) Significant Monitoring Concentration (SMC)
    Under the CAA and EPA SIP regulations, an applicant for a PSD
permit is required to gather preconstruction monitoring data in certain
circumstances. Section 165(a)(7) of the Act calls for ``such monitoring
as may be necessary to determine the effect which emissions from any
such facility may have, or is having, on air quality in any areas which
may be affected by emissions from such source.'' In addition, section
165(e) requires an analysis of the air quality in areas affected by a
proposed major facility or major modification and calls for gathering
one year of monitoring data unless the reviewing authority determines
that a complete and adequate analysis may be accomplished in a shorter
period. These requirements are codified in EPA's PSD SIP regulations at
40 CFR 51.166(m) and PSD Federal Implementation Plan regulations at 40
CFR 52.21(m). In accordance with EPA's Guideline for Air Quality
Modeling (40 CFR part 51, Appendix W), the preconstruction monitoring
data is primarily used to determine background concentrations in
modeling conducted to demonstrate that the proposed source or
modification will not cause or contribute to a violation of the NAAQS.
SMC are numerical values that represent thresholds of insignificant,
i.e., de minimis, monitored (ambient) impacts on pollutant
concentrations. In EPA's PM2.5 PSD Increment--SILs--SMC
Rule, EPA established a SMC of 4 [micro]g/m\3\ for PM2.5 to
be used as a screening tool by a major source subject to PSD to
determine the subsequent level of data gathering required for a PSD
permit application for emissions of PM2.5.
    Using the SMC as a screening tool, sources may be able to
demonstrate that the modeled air quality impact of emissions from the
new source or modification, or the existing air quality level in the
area where the source would construct, is less than the SMC, i.e., de
minimis, and may be allowed to forego the preconstruction monitoring
requirement for a particular pollutant at the discretion of the
reviewing authority. See 75 FR 64864, 40 CFR 51.166(i)(5) and
52.21(i)(5). As mentioned above, SMCs are not minimum required elements
of an approvable SIP under the CAA. This de minimis value is widely
considered to be a useful component for implementing the PSD program,
but is not statutorily required for EPA approval of a state's PSD SIP
revision submittal. States can satisfy the statutory requirements for
an approvable PSD SIP program by requiring each PSD applicant to submit
air quality monitoring data for PM2.5 without using de
minimis thresholds to exempt certain sources from such requirements.
States with EPA-approved PSD SIP programs that adopt and submit for EPA
approval the SMC for PM2.5 may use the SMC, once it is part
of an approved SIP, to determine when it may be appropriate to exempt a
particular major stationary source or major modification from the
monitoring requirements under its PSD SIP program. New Mexico's May 23,
2011 submitted SIP revision adopts the SMC threshold.
(c) SILs-SMC Litigation
    EPA's authority to promulgate the SILs and SMC for PSD purposes has
been challenged by the Sierra Club. See Sierra Club v. EPA, Case No.
10-1413 (D.C. Circuit Court).\9\ Specifically, Sierra Club claims that
the SILs and SMC screening tools adopted in the October 20, 2010, rule
are inconsistent with the CAA and EPA's de minimis authority.\10\ EPA
responded to Sierra Club's claims in a Brief dated April 6, 2012, which
described the Agency's authority to develop and promulgate SILs and
SMC.\11\ A copy of EPA's April 6, 2012 Brief can be found in the docket
for today's proposed action.
---------------------------------------------------------------------------

    \9\ On April 6, 2012, EPA filed a brief with the D.C. Circuit
court defending the Agency's authority to promulgate SILs and SMC
for PSD purposes.
    \10\ EPA interprets section 165(a)(3) of the CAA to allow the
use of significance levels as a means to demonstrate that a source
will not cause or contribute to any violation of the NAAQS or
increments. The terms ``cause or contribute to'' and ``demonstrate''
are ambiguous and EPA reasonably interprets the statue to allow
sources that do not contribute significantly to ambient air
concentrations of PM2.5 to demonstrate compliance through
modeling of the source's impact measured against the SILs.
    \11\ Additional information on this issue can also be found in
an April 25, 2010, comment letter from EPA Region 6 to the Louisiana
Department of Environmental Quality regarding the SILs-SMC
litigation. A copy of this letter can be found in the docket for
today's rulemaking at www.regulations.gov using docket ID: EPA-R06-
OAR-2011-0033.
---------------------------------------------------------------------------

b. How does the May 23, 2011 New Mexico PSD submittal satisfy the
PM2.5 Increment--SILs--SMC Rule?
    New Mexico's May 23, 2011 SIP revision submittal adopts the
following PSD provisions in the PM2.5 PSD Increment--SILs--
SMC Rule: (1) PSD increments for PM2.5 annual and 24-hour
NAAQS pursuant to section 166(a) of the CAA; (2) SILs to be used as a
screening tool to evaluate the impact a proposed major source or
modification may have on the NAAQS or PSD increment; and (3) SMC, also
used as a screening tool, to determine the level of data gathering
required of a major source in support of its PSD permit application for
PM2.5 emissions.
    Specifically, regarding the PSD increments, the submitted SIP
revision changes include: 1) the PM2.5 increments as
promulgated in at 40 CFR 51.166(c)(1) and (p)(4) (for Class I
Variances) and 2) amendments to the terms ``major source baseline
date'' (at 40 CFR 51.166(b)(14)(i)(c)) and 52.21(b)(14)(i)(c)), ``minor
source baseline date''(including establishment of the ``trigger date'')
and ``baseline area'' (as amended at 40 CFR 51.166(b)(15)(i) and (ii)
and 52.21(b)(15)(i)). These changes provide for the implementation of
the PM2.5 PSD increments for the PM2.5 NAAQS in
the state's PSD program. In today's action, EPA is proposing to approve
New Mexico's May 23, 2011 submitted SIP

revision provisions to address the PM2.5 PSD increment
provisions promulgated in the PM2.5 PSD Increments SILs-SMC
Rule.
    Regarding the SILs and SMC established in the PM2.5 PSD
Increment--SILs--SMC Rule, the Sierra Club has challenged EPA's
authority to promulgate SILs and SMC. In a brief filed in the D.C.
Circuit on April 6, 2012, EPA described the Agency's authority under
the CAA to promulgate and implement the SMC and SILs de minimis
thresholds. With respect to the SMC, New Mexico's SIP revision
submittal includes the SMC of 4 [mu]g/m\3\ for PM2.5 NAAQS
at rule <IP_ADDRESS>3 NMAC that was added to the existing monitoring SIP
exemption at 40 CFR 51.166(i)(5)(i)(c). EPA is proposing to approve the
PM2.5 SMC into the New Mexico PSD SIP as EPA believes the
use of the SMC is a valid exercise of the Agency's de minimis
authority. Furthermore, New Mexico's May 23, 2011 submitted SIP
revision is consistent with EPA's current promulgated provisions in the
PM2.5 PSD Increment--SILs--SMC Rule. However, EPA notes that
future court action may require the adoption and submittal of
subsequent rule revisions and SIP revisions from New Mexico.
    New Mexico's SIP revision submittal, adopting the new PSD SIP
requirements for PM2.5 pursuant to the PM2.5 PSD
Increment--SILs--SMC Rule also includes new regulatory text matching
that at 40 CFR 51.166(k)(2), concerning the implementation of SILs for
PM2.5. EPA stated in the preamble to the PM2.5
PSD Increment--SILs--SMC Rule that we do not consider the SILs to be a
mandatory SIP element, but regard them as discretionary on the part of
regulating authority for use in the PSD SIP permitting process.
Nevertheless, as mentioned previously, the PM2.5 SILs are
currently the subject of litigation before the U.S. Court of Appeals.
(Sierra Club v. EPA, Case No 10-1413, D.C. Circuit). In response to
that litigation, EPA has requested that the court remand and vacate the
regulatory text in the EPA's PSD regulations at paragraph (k)(2) so
that EPA can make necessary rulemaking revisions to that text. In light
of EPA's request for remand and vacatur and the agency's
acknowledgement of the need to revise the regulatory text presently
contained at paragraph (k)(2) of sections 40 CFR 51.166 and 52.21, EPA
does not believe that it is appropriate at this time to act upon that
portion of the State's SIP revision submittal that contains the
affected regulatory text in the New Mexico PSD regulations, at
<IP_ADDRESS>3(A) NMAC. Instead, EPA is severing and taking no action at
this time with regard to these specific provisions contained in the
submitted SIP revision. By severing, we mean that the submitted
portions of the SIP revision that address New Mexico's NSR permitting
program we are proposing action on in this notice can be implemented
independently of the portions of the submittal relating to SILs. EPA
anticipates taking action on the PM2.5 SILs portion of New
Mexico's May 23, 2011 PSD SIP revision in a separate rulemaking once
the court case regarding the SILs issue has been resolved.
    The aforementioned proposed amendments to New Mexico's SIP provide
the framework for implementation of PM2.5 NAAQS in the
state's PSD permitting. Based on review and consideration of New
Mexico's May 23, 2011 SIP revision submittal, EPA is finding that the
New Mexico SIP revision submittals meet the aforementioned PSD
permitting provisions promulgated in the NSR PM2.5 Rule and
PM2.5 PSD Increment--SILs--SMC Rule. Consequently, EPA has
made the preliminary determination to approve the SIP revisions
submittals into the New Mexico SIP to implement the PSD NSR program for
the PM2.5 NAAQS.
3. Reasonable Possibility in Recordkeeping Rule
a. What are the requirements of the Reasonable Possibility in
Recordkeeping Rule for PSD SIP Programs?
    EPA finalized the Reasonable Possibility in Recordkeeping Rule for
PSD and NNSR SIPs on December 21, 2007. See 72 FR 72607. As a result,
SIP revisions meeting the rule were due to EPA on December 21, 2010.
The final rule clarifies the ``reasonable possibility'' standard
promulgated as part of EPA's 2002 NSR Reform rule. The ``reasonable
possibility'' standard identifies for sources and reviewing authorities
the criteria under which an owner or operator of a major stationary
source undergoing a physical change or change in the method of
operation that does not trigger major NSR permitting requirements must
keep records. The standard also specifies the recordkeeping and
reporting requirements on such sources. This final rule is in response
to the decision by the U.S. Court of Appeals for the D.C. Circuit in
New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) in which the ``reasonable
possibility'' standard was remanded for further clarification.
b. How does the May 23, 2011 New Mexico PSD submittal satisfy the
reasonable possibility in recordkeeping rule?
    New Mexico's May 23, 2011 SIP revision submittal adopts new
provisions at <IP_ADDRESS>0(E) and (E)(6) NMAC to implement the
clarifications to the ``reasonable possibility'' standard promulgated
by EPA on December 21, 2007. The revisions submitted by New Mexico are
consistent with federal PSD SIP requirements at 40 CFR 51.166(r)(6),
(r)(6)(vi)(a) and (b). See 72 FR 72607, 72616. EPA therefore proposes
full approval of these submitted new provisions.

B. Analysis of Submitted Revisions to the New Mexico Nonattainment New
Source Review Permitting SIP Program

    EPA's most recent approval of the New Mexico NNSR SIP program was
on September 5, 2007, where we updated our approval of the NM NNSR SIP
program to include the revisions to address NSR Reform as adopted by
the State on December 6, 2005. See 72 FR 50879. Since that time, the
State of New Mexico has adopted and submitted revisions on June 11,
2009, and May 23, 2011, to the NNSR SIP program, affecting the
following sections:
     <IP_ADDRESS> NMAC--Definitions (both June 11, 2009 and May
23, 2011)
     <IP_ADDRESS> NMAC--Applicability (both June 11, 2009 and
May 23, 2011)
     <IP_ADDRESS> NMAC--Emission Offsets (June 11, 2009)
     <IP_ADDRESS> NMAC--Tables, Significant Ambient
Concentrations (May 23, 2011)
    These revisions have been submitted for approval by EPA to the NNSR
SIP to adopt and implement the requirements in the November 29, 2005
Phase 2 8-hour Ozone Implementation Rule, the May 16, 2008 NSR
PM2.5 Rule, the October 20, 2010 PM2.5 PSD
Increments--SILs--SMC Rule, and the December 21, 2007 Reasonable
Possibility in Recordkeeping Rule. The TSD for this rulemaking includes
a detailed analysis of the submitted revisions and demonstration of how
each revision addresses the federal requirements. The following is a
summary of how EPA proposes to find the June 11, 2009 and May 23, 2011
revisions to the New Mexico NNSR program implement the requirements of
the specified final rules.

1. Phase 2 8-Hour Ozone Implementation Rule
a. What are the requirements of the Phase 2 8-Hour Ozone Implementation
Rule for NNSR SIP Programs?
    As a result of the Phase 2 8-Hour Ozone Implementation Rule, states
were required to submit applicable SIP revisions to EPA no later than
June 15, 2007, to address this Rule's SIP requirements for both the PSD
and NNSR programs. See 70 FR 71612, 71683. The SIP revision submittals
were required by this Rule to revise the major source thresholds,
significant emission rates, and offset ratios for ozone such that
nitrogen oxides (NOX) are recognized as an ozone precursor.
New Mexico's June 11, 2009 SIP submittal included revisions to the PSD
and NNSR programs to address these 8-hour ozone permitting
requirements. EPA previously approved the June 11, 2009 submitted
revisions to the PSD program addressing Phase 2 8-hour ozone
implementation as part of the New Mexico PSD SIP.\12\ Consequently, our
action today only addresses the NNSR submitted program revisions that
address the SIP requirements of this Phase 2 8-Hour Ozone
Implementation Rule.
---------------------------------------------------------------------------

    \12\ See 75 FR 72688, November 26, 2010. EPA previously approved
revisions addressing NOX as a precursor of the 1997 8-
hour ozone NAAQS in its action finding New Mexico's SIP does not
interfere with measures required to prevent significant
deterioration of air quality in other states for this NAAQS as per
the third element of section 110(a)(2)(D). Approval of those
revisions ensured New Mexico's PSD SIP included changes necessary to
implement the 1997 8-hour ozone NAAQS within the state as
contemplated in the August 15, 2006 ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards'' to meet
the third element of section 110(a)(2)(D).
---------------------------------------------------------------------------

b. How does the June 11, 2009 New Mexico NNSR submittal satisfy the
Phase 2 8-Hour Ozone Implementation Rule?
    New Mexico's June 11, 2009 SIP submission includes new provisions
to implement the NNSR SIP requirements of the Phase 2 8-hour Ozone
Implementation Rule as promulgated by EPA on November 29, 2005.
Specifically, New Mexico adopted revisions to the definitions of
``major stationary source'' and ``significant'', added new provisions
to the source applicability requirements, and added new provisions to
the emission offset requirements. These revisions serve to incorporate
the major stationary source thresholds, significant emission rates and
offset ratios pursuant to part D of title I of the CAA for the 8-hour
ozone NAAQS, the CO NAAQS, and the PM10 NAAQS. New Mexico
also adopted revisions to the requirements for emission reductions
achieved through curtailments or shutdowns consistent with federal
requirements. Based on our review and analysis available in the TSD for
this action, we are proposing approval of the June 11, 2009 revisions
to the New Mexico SIP that implement the NNSR SIP requirements of the
Phase 2 8-hour ozone rule consistent with requirements at 40 CFR
51.165.
2. NSR PM2.5 Rule
a. What are the requirements of the NSR PM2.5 Rule for NNSR
SIP Programs?
    On May 16, 2008, EPA finalized the NSR PM2.5 Rule to
implement the PM2.5 NAAQS. See 73 FR 28321. As a result of
EPA's final NSR PM2.5 Rule, states were required to submit
applicable SIP revisions to EPA no later than May 16, 2011, to address
this Rule's PSD and NNSR SIP requirements. Specifically, the SIP
revision submittals are required to meet the following NNSR SIP
requirements to implement the PM2.5 NAAQS: (1) Require NNSR
permits to address directly emitted PM2.5 and precursor
pollutants; (2) establish significant emission rates for direct
PM2.5 and precursor pollutants (including sulfur dioxide
(SO2) and NOX); (3) establish PM2.5
emission offsets; and (4) account for gases that condense to form
particles (condensables) in PM2.5 and PM10
emission limits in NNSR permits. Additionally, the NSR PM2.5
Rule authorized states to adopt and submit provisions in their NNSR
rules that would allow interpollutant offset trading.
b. How does the May 23, 2011 New Mexico NNSR submittal satisfy the NSR
PM2.5 Rule?
    New Mexico's May 23, 2011 submission includes new provisions to
implement the NNSR SIP requirements of the NSR PM2.5 Rule,
as promulgated by EPA on May 16, 2008. Specifically, New Mexico adopted
revisions to the definitions of ``regulated NSR pollutant'' and
``significant'', added new provisions to the source applicability
requirements, and added new provisions for emission offset
requirements. These submitted revisions (1) Require NNSR permits to
address directly emitted PM2.5 and precursor pollutants; (2)
establish significant emission rates for direct PM2.5 and
precursor pollutants (including sulfur dioxide (SO2) and
nitrogen oxides (NOX)); (3) establish PM2.5
emission offsets; (4) account for gases that condense to form particles
(condensables) in PM2.5 and PM10 emission limits
in NNSR permits; and (5) provide for interprecursor offsetting of
direct PM2.5 emissions with emissions of identified
PM2.5 precursors based on an approved interprecursor trading
hierarchy and ratio in the approved plan for a particular nonattainment
area. Note that the language adopted and submitted by the State of New
Mexico providing for interprecursor offsetting establishes the generic
framework only. EPA is proposing to approve the generic framework as
part of the New Mexico SIP. Sources proposing to construct/modify in
nonattainment areas, however, will be unable to use interprecursor
offsetting unless and until New Mexico adopts and submits said
hierarchies and ratios for EPA review and they are subsequently
approved by EPA into the New Mexico SIP.
3. PM2.5 PSD Increment--SILs--SMC Rule
a. What are the requirements of the PM2.5 PSD Increment--
SILs--SMC Rule for NNSR SIP Programs?
    The PM2.5 PSD Increment--SILs--SMC Rule established the
PM2.5 SILs at EPA's existing NNSR SIP regulations at 40 CFR
51.165(b). The regulations in 40 CFR 51.165(b) \13\ establish the
minimum requirements for NNSR programs in SIPs but apply specifically
to major stationary sources and major modifications located in
attainment or unclassifiable/attainment areas. Where a PSD source
located in such areas may have an impact on an adjacent nonattainment
area, the PSD source must still demonstrate that it will not cause or
contribute to a violation of the NAAQS in the adjacent nonattainment
area. Where emissions from a proposed PSD source or modification would
have an ambient impact in a nonattainment area that would exceed the
SILs, the source is considered to cause or contribute to a violation of
the NAAQS and may not be issued a PSD permit without obtaining
emissions reductions to compensate for its impact. See 40 CFR
51.165(b)(2)-(3).
---------------------------------------------------------------------------

    \13\ 40 CFR 51.165(b) require states to adopt and submit for
approval by EPA as a SIP revision, a preconstruction review permit
program for major stationary sources and major modifications that
wish to locate in an attainment or unclassifiable area but would
cause or contribute to a violation of the NAAQS.

---------------------------------------------------------------------------

b. How does the May 23, 2011 New Mexico NNSR submittal satisfy the
PM2.5 PSD Increment--SILs--SMC Rule?
    The PM2.5 PSD Increment--SILs--SMC rule promulgated
PM2.5 SILs thresholds in the NNSR regulations at 40 CFR
51.165(b)(2). New Mexico's May 23, 2011 submission includes the
PM2.5 SILs thresholds at <IP_ADDRESS> NMAC, consistent with
the federal requirement to have the PM2.5 SILs in EPA's NNSR
SIP regulations at 40 CFR 51.165(b)(2). In light of the fact that EPA
did not request the court to remand and vacate language at 40 CFR
51.165(b) and the agency has explained and affirmed its authority to
develop and promulgate SILs in the brief filed with the D.C. Circuit
Court concerning the litigation, EPA is proposing to approve New
Mexico's adoption of the PM2.5 SILs thresholds at
<IP_ADDRESS> NMAC. EPA notes, however, that the SILs-SMC litigation is
ongoing and therefore future court action may require the submittal of
subsequent rule revisions and SIP submittals from the State of New
Mexico.
    The aforementioned amendments to New Mexico's NNSR SIP program
along with the revisions to the New Mexico PSD SIP program discussed in
Section II.A of this proposed action, provide the framework for
implementation of PM2.5 NAAQS in the state's PSD and NNSR
SIP programs. Based on our review and analysis, EPA is finding that New
Mexico's May 23, 2011 submitted revisions to the NNSR SIP program meet
the NNSR permitting provisions promulgated in the NSR PM2.5
Rule and PM2.5 PSD Increment--SILs--SMC Rule. Consequently,
EPA has made the preliminary determination to approve the May 23, 2011
SIP revision submittals into the New Mexico SIP to implement the NNSR
program for the PM2.5 NAAQS.
4. Reasonable Possibility in Recordkeeping Rule
a. What are the requirements of the Reasonable Possibility in
Recordkeeping Rule for NNSR SIP Programs?
    EPA finalized the Reasonable Possibility in Recordkeeping Rule for
PSD and NNSR SIPs on December 21, 2007. See 72 FR 72607. As a result,
SIP revisions meeting the rule were due to EPA on December 21, 2010.
The final rule clarifies the ``reasonable possibility'' standard
promulgated as part of EPA's 2002 NSR Reform rule. The ``reasonable
possibility'' standard identifies for sources and reviewing authorities
the criteria under which an owner or operator of a major stationary
source undergoing a physical change or change in the method of
operation that does not trigger major NSR permitting requirements must
keep records. The standard also specifies the recordkeeping and
reporting requirements on such sources. This final rule is in response
to the decision by the U.S. Court of Appeals for the D.C. Circuit in
New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) in which the ``reasonable
possibility'' standard was remanded for further clarification.
b. How does the May 23, 2011 New Mexico NNSR submittal satisfy the
Reasonable Possibility in Recordkeeping Rule?
    New Mexico's May 23, 2011 SIP revision submittal includes new
provisions at <IP_ADDRESS>(F) and (F)(6) NMAC to implement the
clarifications to the ``reasonable possibility'' standard promulgated
by EPA on December 21, 2007. See 72 FR 72607, 72616. The revisions
submitted by New Mexico are consistent with federal NNSR permitting
requirements at 40 CFR 51.165(a)(6), (a)(6)(vi). EPA therefore proposes
full approval of these new provisions.

III. Proposed Action

    EPA is proposing the following actions in accordance with section
110 and parts C and D of the Act and EPA's regulations and consistent
with EPA guidance. EPA is proposing to approve portions of two
revisions to the New Mexico SIP submitted by the Governor of New Mexico
on June 11, 2009 and May 23, 2011.
    EPA is proposing to approve the following revised rules submitted
in 2011 as meeting the PM2.5 PSD requirements under EPA's
May 16, 2008 and October 20, 2010 final PM2.5 PSD permitting
implementation rules and the December 21, 2007 Reasonable Possibility
in Recordkeeping Rules.
     <IP_ADDRESS> NMAC--Definitions,
     <IP_ADDRESS>0 NMAC--Obligations of Owners or Operators of
Sources,
     <IP_ADDRESS>3 NMAC--Ambient Impact Requirements,
     <IP_ADDRESS>6 NMAC- Monitoring Requirements,
     <IP_ADDRESS>3 NMAC--Additional Requirements for Sources
Impacting Class I Federal Areas,
     <IP_ADDRESS>2 NMAC--Significant Emission Rates,
     <IP_ADDRESS>3 NMAC--Significant Monitoring Concentrations,
     <IP_ADDRESS>4 NMAC--Allowable PSD Increment, and
     <IP_ADDRESS>5 NMAC--Maximum Allowable Increases for Class I
Waivers.
    EPA is proposing to approve the following revised rules submitted
in 2009 as meeting the EPA's November 29, 2005 Phase 2 8-hour Ozone
Implementation Rule for nonattainment areas.
     <IP_ADDRESS> NMAC--Definitions,
     <IP_ADDRESS> NMAC--Applicability, and
     <IP_ADDRESS> NMAC--Emission Offsets.
    EPA is proposing to approve the following revised rules submitted
in 2011 as meeting EPA's PM2.5 NNSR requirements under EPA's
May 16, 2008 and October 20, 2010 final PM2.5 NSR permitting
implementation rules and the December 21, 2007 Reasonable Possibility
in Recordkeeping Rules. New Mexico also made some nonsubstantive
changes in 2011 to <IP_ADDRESS> NMAC as adopted and submitted in 2009,
and we are proposing to approve these nonsubstantive changes.
     <IP_ADDRESS> NMAC--Definitions,
     <IP_ADDRESS> NMAC--Applicability, and
     <IP_ADDRESS> NMAC--Tables.
    EPA is severing from this proposed action the revisions to
<IP_ADDRESS>3(A) NMAC submitted on May 23, 2011 which are equivalent to
the provisions EPA has requested the court to remand and vacate at 40
CFR 51.166(k)(2) that were promulgated on October 20, 2010, and
conflict with our intentions for the use of SILs to demonstrate
compliance with CAA section 163(a). Therefore, <IP_ADDRESS>3 NMAC as
adopted by NMED on January 1, 2011, and SIP-approved by EPA on July 20,
2011, remains the SIP-approved section. The NMED continues to retain
the ability to implement the PM2.5 SILs at <IP_ADDRESS> NMAC
consistent with EPA's interpretation of CAA section 163(a). Further,
the revisions to <IP_ADDRESS>3(A) NMAC submitted on May 23, 2011, will
remain before EPA for review. EPA will revisit these provisions after
the court addresses EPA's request for remand with vacatur or EPA
initiates rulemaking to revise 40 CFR 51.166(k)(2).

IV. 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, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed 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 proposed action:

     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the 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, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Particulate
matter, Reporting and recordkeeping requirements.

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

    Dated: September 28, 2012.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2012-25156 Filed 10-11-12; 8:45 am]
BILLING CODE 6560-50-P


Comment Info: =================

General Comment:To:

Division of Dockets Management (HFA-305) Food and Drug Administration 5630 Fishers Lane, rm. 1061 Rockville, MD 20852. RE: Docket No. FDA- 2014-N-0189   RE: "Deeming Tobacco Products to Be Subject to the Federal Food, Drug and Cosmetic Act," Docket No. FDA- 2014-N-0189 request for extended comment period.   Dear Director Zeller:

I am writing as an individual consumer to request an extension of the comment period for the Food and Drug Administration's ("FDA") Proposed Rule Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking and Prevention and Tobacco Control Act (the "Proposed Rule") published at 79 Fed. Reg. 23,142 and Federal Register No. 2014-09491. On behalf of myself, I am requesting that the comment period for the Proposed Rule be extended by the FDA for an additional 105 days, from its current 75-day period, to 180 days. I wish to provide you with my personal story, as well as science and evidence-based responses to your questions so that you can take my comment into account. I realize that the FDA has the authority under 21 CFR 10.40 to extend this time frame and that the FDA has exercised this authority on numerous occasions in the past.   As a consumer of the electronic cigarette, I have completely stopped use of tobacco products. Not only does it prevent the inhalation of carcinogens, but is also more environmentally friendly and has been suggested by my primary care physician as a significant improvement from tobacco use. Harm reduction is a common practice for addictions. Nicotine is known as an addictive substance however it is the method of administration that causes so many health concerns. By cutting out the toxic route of delivery, the risk is insignificant. I smoked cigarettes for 31 years and last year switched to the electronic cigarette and after many attempts at trying to quit over the years, this has been the only method that has been successful for me. If these became unavailable, I am certain that I would turn back to tobacco products. Prior to the switching to “vaping” my lung function was horrible but over the past year, according to my doctor, my lungs have significantly healed and I am able to do a lot more physically. The idea of banning these electronic cigarettes could be the difference between life and death for many people including myself.   I thank FDA for the opportunity to provide my views on the proposed rule.

Sincerely,

Kathleen Falcone


[Federal Register: March 23, 2010 (Volume 75, Number 55)]
[Notices]
[Page 13772-13773]
[DOCID:fr23mr10-82]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID: FEMA-2010-0009-]

Agency Information Collection Activities: Proposed Collection;
Comment Request, 1660-NEW; Environmental and Historic Preservation
Environmental Screening Form

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice; 60-day notice and request for comments; new information
collection; OMB No. 1660-NEW; FEMA Form 024-0-1, Environmental and
Historic Preservation Environmental Screening Form.

-----------------------------------------------------------------------

SUMMARY: The Federal Emergency Management Agency, as part of its
continuing effort to reduce paperwork and respondent burden, invites
the general public and other Federal agencies to take this opportunity
to comment on a proposed new information collection. In accordance with
the Paperwork Reduction Act of 1995, this Notice seeks comments
concerning the information collection activities required to administer
the Environmental and Historic Preservation Environmental Screening
Form.

DATES: Comments must be submitted on or before May 24, 2010.

ADDRESSES: To avoid duplicate submissions to the docket, please use
only one of the following means to submit comments:
    (1) Online. Submit comments at http://www.regulations.gov under
docket ID FEMA-2010-0009-. Follow the instructions for submitting
comments.
    (2) Mail. Submit written comments to Office of Chief Counsel,
Regulation and Policy Team, DHS/FEMA, 500 C Street, SW., Room 835,
WASH, DC 20472-3100.
    (3) Facsimile. Submit comments to<PHONE_NUMBER>.
    (4) E-mail. Submit comments to<EMAIL_ADDRESS>Include docket
ID FEMA-2010-0009- in the subject line.
    All submissions received must include the agency name and docket
ID. Regardless of the method used for submitting comments or material,
all submissions will be posted, without change, to the Federal
eRulemaking Portal at http://www.regulations.gov, and will include any
personal information you provide. Therefore, submitting this
information makes it public. You may wish to read the Privacy Act
notice that is available on the Privacy Notice link in the footer of
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Paul Belkin, Program Analyst, Grant
Programs Directorate,<PHONE_NUMBER> for additional information. You may
contact the Records Management Division for copies of the proposed
collection of information at facsimile number<PHONE_NUMBER> or e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The National Environmental Policy Act (NEPA)
(Pub. L. 91-190) requires that the Federal government examine the
impact of its actions on the environment, look at potential
alternatives to that action, inform both decision-makers and the public
of those impacts through a transparent process, and pursue mitigation
if necessary. Environmental and Historic Preservation (EHP) compliance
refers to the process by which the Federal government ensures that
projects financed through Federal grant funding are compliant with NEPA
and existing laws and regulations related to environment and historic
preservation. Compliance under NEPA is required whenever Federal funds
are expended as listed in Sec. 102(D) of the National Environmental
Policy Act (42 U.S.C. 4332(D)). A NEPA compliance review process for
FEMA grant programs incorporates compliance with Section 106 of the
National Historic Preservation Act (NHPA) (Pub. L. 102-575, 16 U.S.C.
470f) which requires that a Federal official, having jurisdiction over
awarding of Federal funds, will have to take into consideration the
effect that the actions undertaken as a result of the awarded funds
have on any district, site, building, structure, or object that is
included in or eligible for inclusion in the National Register.

Collection of Information

    Title: Environmental and Historic Preservation Environmental
Screening Form.
    Type of Information Collection: New information collection.
    OMB Number: 1660-NEW.
    Form Titles and Numbers: Environmental and Historic Preservation
Environmental Screening Form, FEMA Form 024-0-1.
    Abstract: In efforts to examine the impact of its actions on the
environment, look at potential alternatives to that action, inform both

decision-makers and the public of those impacts through a transparent
process, and pursue mitigation if necessary, grant recipients need to
provide information that their actions will comply with all related
laws and regulations.
    Affected Public: State, Local or Tribal Government; Business or
other for profit.
    Estimated Total Annual Burden Hours: 52,920 hours.

                                                 Table A.12--Estimated Annualized Burden Hours and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Number of      Avg. burden    Total annual                    Total annual
       Type of respondent           Form name/Form No.       Number of     responses per   per response     burden (in      Avg. hourly     respondent
                                                            respondents     respondent      (in hours)        hours)         wage rate         cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
State, Local or Tribal           Environmental and                   842               1              40          33,680          $36.15      $1,217,532
 Government.                      Historic Preservation
                                  Environmental
                                  Screening Form/FEMA
                                  Form 024-0-1.
Business or other for-profit...  Environmental and                   481               1              40          19,240           27.01      519,672.40
                                  Historic Preservation
                                  Environmental
                                  Screening Form/FEMA
                                  Form 024-0-1.
                                                         -----------------------------------------------------------------------------------------------
    Total......................  .......................           1,323  ..............  ..............          52,920  ..............    1,737,204.40
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Estimated Cost: There is no annual reporting or recordkeeping costs
associated with this collection.

Comments

    Comments may be submitted as indicated in the ADDRESSES caption
above. Comments are solicited to (a) Evaluate whether the proposed data
collection is necessary for the proper performance of the agency,
including whether the information shall have practical utility; (b)
evaluate the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (c) enhance the quality, utility, and
clarity of the information to be collected; and (d) minimize the burden
of the collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses.

    Dated: March 12, 2010.
Larry Gray,
Director, Records Management Division, Office of Mission Support,
Federal Emergency Management Agency, Department of Homeland Security.
[FR Doc. 2010-6354 Filed 3-22-10; 8:45 am]
BILLING CODE 9111-78-P


[Federal Register Volume 88, Number 229 (Thursday, November 30, 2023)]
[Notices]
[Page 83563]
[FR Doc No: 2023-26276]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4724-DR; Docket ID FEMA-2023-0001]

Hawaii; Amendment No. 6 to Notice of a Major Disaster Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice amends the notice of a major disaster for the
State of Hawaii (FEMA-4724-DR), dated August 10, 2023, and related
determinations.

DATES: This amendment was issued September 22, 2023.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that, in a letter
dated September 22, 2023, the President amended the cost-sharing
arrangements regarding Federal funds provided under the authority of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42
U.S.C. 5121 et seq. (the ``Stafford Act''), in a letter to Deanne
Criswell, Administrator, Federal Emergency Management Agency,
Department of Homeland Security, under Executive Order 12148, as
follows:

    I have determined that the damage in certain areas of the State
of Hawaii resulting from wildfires beginning on August 8, 2023, and
continuing, is of sufficient severity and magnitude that special
cost sharing arrangements are warranted regarding Federal funds
provided under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 et seq. (the ``Stafford Act'').
    Therefore, I amend my declarations of August 10, 2023, August
18, 2023, and September 8, 2023, to authorize Federal funds for
debris removal, including direct Federal assistance, at 100 percent
of the total eligible costs for a continuous 180-day period of the
State's choosing within the first nine months from the start of the
incident period. I further authorize Federal funds for emergency
protective measures, including direct Federal assistance, at 100
percent of the total eligible costs for a continuous 90-day period
of the State's choosing within the first six months from the start
of the incident period.

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households In
Presidentially Declared Disaster Areas; 97.049, Presidentially
Declared Disaster Assistance--Disaster Housing Operations for
Individuals and Households; 97.050 Presidentially Declared Disaster
Assistance to Individuals and Households--Other Needs; 97.036,
Disaster Grants--Public Assistance (Presidentially Declared
Disasters); 97.039, Hazard Mitigation Grant.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2023-26276 Filed 11-29-23; 8:45 am]
BILLING CODE 9111-23-P


1 MEMORANDUM DATE: June 10, 2005 SUBJECT: Availability of Catalyzed Diesel Particulate Filters for Stationary Compression Ignition Internal Combustion Engines FROM: Tanya Parise, Alpha Gamma Technologies, Inc.

TO: Sims Roy, EPA OAQPS ESD Combustion Group The purpose of this memorandum is to document the availability of catalyzed diesel particulate filters ( CDPF) as they apply to stationary compression ignition ( CI) internal combustion engines with a displacement of less than 30 liters per cylinder. A CI engine is defined as an engine that is not spark ignition ( SI). An SI engine is defined as a gasoline, natural gas, or liquefied petroleum gas fueled engine or any other type of engine with a spark plug ( or other sparking device) and with operating characteristics significantly similar to the theoretical Otto combustion cycle. Spark ignition engines usually use a throttle to regulate intake air flow to control power during normal operation. Dual fuel engines in which a liquid fuel ( typically diesel fuel) is used for CI and gaseous fuel ( typically natural gas) is used as the primary fuel at an annual average ratio of less than 2 parts diesel fuel to 100 parts total fuel on an energy equivalent basis are SI engines.

Background The EPA is in the process of developing new source performance standards ( NSPS) for stationary CI internal combustion engines. The EPA is under a court ordered deadline to propose NSPS by June 29, 2005 and promulgate NSPS by June 28, 2006 for CI stationary internal combustion engines. The NSPS will apply to stationary CI engines that are ordered after the date the proposal is published in the Federal Register and manufactured after April 1, 2005, and also stationary CI engines that commence modification or reconstruction after the proposal date. New source performance standards are developed under the authority of section 111 of the Clean Air Act ( CAA) and EPA must address emissions of criteria pollutants ( those pollutants identified under section 110 of the CAA). A criteria pollutant of major concern from stationary CI engines is particulate matter ( PM). Catalyzed diesel particulate filters have been shown to be very effective in reducing PM from CI engines. 140 CFR Parts 9, 69, et. al. Control of Emission of Air Pollution from Nonroad Diesel Engines and Fuel; Final Rule. June 29, 2004. 69 FR 38957.

2Catalyzed Diesel Particulate Filters for Stationary Engines. Email from Mike Tripodi, Clean Air Systems to Tanya Ali, Alpha Gamma Technologies, Inc. July 21, 2003.

2 The emission standards that EPA will propose for the NSPS for stationary CI internal combustion engines with a displacement of less than 30 liters per cylinder will be modeled after the EPA rule for nonroad diesel engines. The final rule for nonroad diesel engines, which promulgated Tier 4 emission standards, was published in the Federal Register on June 29, 2004.1 The final nonroad Tier 4 PM emission standards are based on the use of CDPF, which is the technology EPA expects will be used by engines with a displacement of less than 30 liters per cylinder to comply with the PM Tier 4 emission standards. The PM emission standards that are based on the use of CDPF vary depending on engine power and in some cases also the application, but the earliest model year that has a PM standard based on the use of CDPF is 2011. Catalyzed diesel particulate filters have been demonstrated to reduce PM by at least 85 percent from stationary CI engines, however, the filters require the use of ultra low sulfur diesel ( ULSD) fuel, i. e., fuel containing no more than 15 parts per million by weight ( ppmw) of sulfur, to achieve this level of PM reduction. The EPA recently promulgated regulations that require sulfur levels for nonroad diesel fuel to be reduced to 500 ppm beginning in late 2007 and 15 ppm beginning in late 2010; similar regulations will be proposed for stationary engines. According to EPA's fuel analysis, this is the timeframe that these fuels will be available for nonroad diesel engines. The EPA also conducted an analysis to determine the availability of ULSD fuel for stationary CI engines that would be affected by the NSPS. Results of the analysis indicate that there will be a sufficient amount of ULSD fuel for stationary CI engines affected by the NSPS.

Availability of CDPF The EPA has contacted several CDPF vendors including major control technology manufacturers such as CleanAir Systems, Miratech, Engelhard, and Johnson Matthey. Information received from control technology vendors indicate that CDPF are currently available and can be installed on stationary CI engines to significantly reduce PM levels. Each of the vendors contacted has equipped stationary CI engines of a variety of sizes with CDPF and the technology is performing as expected achieving PM reductions in excess of 85 percent. According to control technology vendors, the technology is mature and has been proven a viable control solution for reducing PM from all but the very largest diesel engines.

CleanAir Systems has developed the CleanAir PERMITTM Filter, which is applicable to all diesel engines. 2 The CleanAir PERMITTM Filter is a catalyzed diesel particulate filter 3CleanAir Systems. CleanAir PERMITTM Filter System. http:// www. cleanairsys. com/ materials/ pdf/ PERMIT% 20Brochure. pdf. August 13, 2004.

4Catalyzed Diesel Particulate Filters for Stationary Engines. Email from Mike Tripodi, Clean Air Systems to Tanya Ali, Alpha Gamma Technologies, Inc. May 14, 2004.

5Catalyzed Diesel Particulate Filters used on Stationary Reciprocating Internal Combustion Engines. Email from Rich Rosowski, Johnson Matthey to Tanya Ali, Alpha Gamma Technologies, Inc. July 15, 2003.

6Diesel Particulate Filter Systems for Off Road Applications. http:// www. jmcsd. com/ New_ English. pdf. August 13, 2004.

7Diesel Particulate Filters/ CRT Costs. Email from Rich Rosowski, Johnson Matthey to Tanya Ali, Alpha Gamma Technologies, Inc. May 17, 2004.

8Catalyzed Diesel Particulate Filters for Stationary RICE. Email from Jim McDonald, Miratech Corporation to Tanya Ali, Alpha Gamma Technologies. October 22, 2003.

9Catalyzed Diesel Particulate Filters for Stationary RICE. Email from Jim McDonald, Miratech Corporation to Tanya Ali, Alpha Gamma Technologies. October 24, 2003.

10Catalyzed Diesel Particulate Filters for Stationary RICE. Email from Jim McDonald, Miratech Corporation to Tanya Ali, Alpha Gamma Technologies. May 15, 2004.

3 that reduces PM by more than 85 percent. 3 CleanAir Systems indicated that it has equipped CDPF on stationary engines as large as 2 megawatt ( MW) ( 2,680 HP), but that it can install CDPF on engines larger than that. 4 Control technology vendor Johnson Matthey manufacturers the patented continuous regenerating technology ( CRT ® ) . 5 This technology does not include a catalyzed filter but contains a platinum based oxidation catalyst and a filter element. The vendor normally guarantees a PM reduction of 85 percent with the control device. Johnson Matthey's technology is available for all applications and sizes. 6 The catalyst vendor indicated to EPA that its largest DPF application was on a 3,300 HP engine. 7 Miratech Corporation indicated to EPA that it has recently introduced a new diesel particulate filter. 8 The diesel particulate filter Miratech has developed called the Rypos Trap, is the active regeneration type. The regeneration does not depend on engine exhaust temperatures or fuel sulfur content. The catalyst vendor noted that the Rypos Trap does not require low sulfur diesel and the costs are comparable to a catalyzed diesel particulate filter ( ceramic wall flow). The Rypos Trap is capable of achieving PM emissions reductions of up to 90 percent and was specifically designed for stationary internal combustion engines. Miratech said that it plans to have standard retrofit units from 150 kilowatt ( KW) ( 200 HP) to 2 MW ( 2,680 HP). 9 The control technology vendor indicated to EPA that the largest filter that it has supplied was for an engine approximately 4,000 HP in size. 10 11California Air Resources Board. Diesel Emission Control Strategies Verification Level 3 Verified Technologies. http:// www. arb. ca. gov/ diesel/ verdev/ level3. htm. August 13, 2004.

12California Environmental Protection Agency. Air Resources Board. Staff Report: Initial Statement of Reasons for Proposed Rulemaking. Airborne Toxic Control Measure for Stationary Compression Ignition Engines. Stationary Source Division. Emissions Assessment Branch. September 2003.

13Miratech's Silicone Carbide Element Soot Traps. Diesel & Gas Turbine Worldwide. October 2004.

14Miratech Corporation. MobiClean Soot Traps. http:// www. miratechcorp. com/ general. asp? id= 593. October 22, 2004.

4 In addition, the California Air Resources Board ( CARB) finalized the airborne toxic control measure ( ATCM) for stationary CI engines on November 8, 2004. The ATCM will take effect in the year 2005. The proposed standards require stationary new and in use prime CI engines greater than 50 horsepower ( HP) to meet a diesel PM limit of 0.01 grams per brake horsepower hour ( g/ bhp hr). The Board believes the 0.01 g/ bhphr is technologically feasible because results from a demonstration program conducted by CARB in order to evaluate the feasibility of several PM control technology options showed that two stationary diesel engines were able to achieve a diesel PM emission rate of equal to or less than 0.01 g/ bhp hr following the application of DPF technologies. In addition, emissions test data from CleanAir Systems' PERMITTM technology has shown that the technology is capable of reducing PM emissions by 85 percent or more, which has yielded diesel PM emission rates below 0.01 g/ bhp hr. The PERMIT technology from CleanAir Systems has been verified by CARB for application to engines and is verified to obtain 85 percent PM reduction on several engine models.

Furthermore, CARB has also verified several other CDPF systems from other equipment vendors on various model year on road applications. 11 Finally, as documented in the Staff Report to the proposed ATCM, 12 several CI engines ( emergency and prime) in California are equipped with CDPF including engines varying in sizes from less than 200 HP to up to 3,000 HP.

A recent issue of the industry journal Diesel & Gas Turbine Worldwide included an article discussing Miratech's introduction of MobiClean   and CBS   silicone carbide element soot traps. 13 MobiClean   is the active regeneration type where the filter is regenerated by the presence of a duct burner. This eliminates the dependence on engine exhaust temperatures. Regeneration with MobiClean   can occur at any load, a benefit to diesel generators that run unloaded the majority of the time. The product is applicable to generators 80 KW ( 107 HP) to 2,340 KW ( 3,140 HP), according to Miratech's website. 14 The technology may achieve up to 99 percent reduction in PM and when a diesel oxidation catalyst is added, reductions of 90 percent of CO and 70 15Summary of Meeting with the European Association of Internal Combustion Engine Manufacturers ( EUROMOT) Regarding NSPS for CI Stationary RICE. March 22, 2005.

5 percent of VOC are possible. The CBS   trap is a lower cost solution for engines that predominantly run at high loads. The trap is the passive regeneration type where the filter contains a catalytic coating and is applicable to diesel applications 550 KW ( 737 HP) to 7 MW ( 9,380 HP) in size. This filter also has an efficiency of up to 99 percent, according to Miratech's website.

The EPA met with manufacturers of very large stationary CI internal combustion engines, i. e., engines with a displacement of 30 liters per cylinder or greater. 15 The engine manufacturers indicated that CDPF are not available for engines of this size. The manufacturers stated that they did not recommend placing several traps in parallel because there would be uneven gas flow through the units, resulting in a low reduction efficiency. The PM reduction technology that the engine manufacturers have demonstrated to be effective for these very large engines is electrostatic precipitator.

Based on the information presented in this memorandum, which includes information from several CDPF vendors and CARB, EPA believes that CDPF are currently available for stationary CI engines with a displacement of less than 30 liters per cylinder, and will be available in the future when the NSPS for stationary CI internal combustion engines takes effect.


MEMORANDUM TO: EPA Docket SFUND 2004 0001 FROM: Sven Erik Kaiser DATE: April 29, 2005 RE: Meeting with ASTM E 50 Subcommittee on Standard E1527 On April 19, 2005, Sven Erik Kaiser of EPA's Office of Brownfields Cleanup and Redevelopment and Jennifer Anderson of EPA's Office of General Counsel attended a meeting of the ASTM E 50 Subcommittee responsible for revising the ASTM E1527 Phase I Environmental Site Assessment Standard. During the discussions about the ASTM E1527 standard, subcommittee members raised issues about the EPA Proposed All Appropriate Inquiries Rule. EPA listened to the comments but did not respond directly to the commenters with regard to the issues raised during the meeting. I am submitting the ASTM subcommittee member comments, based on my notes, for inclusion in the EPA docket for the All Appropriate Inquiries Rulemaking.

Members of the ASTM subcommittee responsible for the development of the E1527 Phase I Environmental Site Assessment Standard made the following comments at the April 19, 2005 meeting.

1. ASTM members supported EPA's recommendation that visual inspections be conducted by an environmental professional and suggested that EPA should consider requiring that the environmental professional conduct the visual inspection.

2. A commenter was concerned that the search distance for sites classified in CERCLIS as " No Further Remedial Action Planned" was too broad and should be limited to the subject property.

3. A commenter urged EPA to reconsider the need to review health records because the commenter felt that such records were difficult to obtain.

4. Several commenters stated that environmental liens were difficult to find and urged EPA to alter the rule language on environmental liens unless there were more sufficient government data bases.

5. Commenters requested clarification on the treatment of state certification programs for environmental professionals, particularly regarding a State of California certification.