[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Rules and Regulations]
[Pages 41698-41705]
[FR Doc No: 2011-17786]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2009-0647; FRL-9438-7]

Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Section 110(a)(2) Infrastructure Requirements for 1997 8-
Hour Ozone and Fine Particulate Matter National Ambient Air Quality
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving submittals from the State of New Mexico
pursuant to the Clean Air Act (CAA or Act) that address the
infrastructure elements specified in the CAA section 110(a)(2),
necessary to implement, maintain, and enforce the 1997 8-hour ozone and
1997 fine particulate matter (PM2.5) national ambient air
quality standards (NAAQS or standards). We are determining that the
current New Mexico State Implementation Plan (SIP) meets the following
infrastructure elements which were subject to EPA's completeness
findings pursuant to CAA section 110(k)(1) for the 1997 8-hour ozone
NAAQS dated March 27, 2008, and the 1997 PM2.5 NAAQS dated
October 22, 2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H),
(J), (K), (L), and (M). EPA is also approving a November 2, 2006, SIP
revision to regulation 20.2.3 of the New Mexico Administrative Code
(NMAC) (Ambient Air Quality Standards), to remove the state ambient air
quality standards from being an applicable requirement under the
State's Title V permitting program, found at 20.2.70 NMAC (Operating
Permits). EPA is also converting our February 27, 1987, conditional
approval of New Mexico's PSD program (52 FR 5964) to a full approval
based on the November 2, 1988, approval of New Mexico's stack height
regulations (53 FR 44191). Lastly, EPA is making a number of U.S. Code
of Federal Regulations (CFR) codification technical corrections to
amend the description of the approved New Mexico SIP. This action is
being taken under section 110 and part C of the Act.

DATES: This rule is effective on August 15, 2011.

ADDRESSES: EPA established a docket for this action under Docket ID No.
EPA-R06-OAR-2009-0647. All documents in the docket are listed at http://www.regulations.gov. 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 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 Freedom of
Information Act (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. Please make the
appointment at least two working days in advance of your visit. There
is 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.

FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>;
fax number<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.

Table of Contents

I. Background
II. Additional Background Information
III. What action is EPA taking?
IV. Final Action

V. Statutory and Executive Order Reviews

I. Background

    The background for today's actions is discussed in detail in our
May 2, 2011, proposal to approve submittals from the State of New
Mexico pursuant to the CAA that address the infrastructure elements
specified in the CAA section 110(a)(2), necessary to implement,
maintain, and enforce the 1997 8-hour ozone and 1997 fine particulate
matter (PM2.5) NAAQS (76 FR 24421). In it, we proposed to
find that the current New Mexico SIP meets the provisions of the CAA
sections 110(a)(1) and 110(a)(2) (i.e., 110(a)(2)(A)-(C), (D)(ii), (E)-
(H), and (J)-(M)) for the 1997 ozone and 1997 PM2.5 NAAQS.
We also proposed to approve a revision to regulation 20.2.3 NMAC
(Ambient Air Quality Standards) into the New Mexico SIP, to remove the
state ambient air quality standards from being an applicable
requirement under the State's Title V permitting program. EPA also
proposed to correct an administrative oversight by converting our
February 27, 1987, conditional approval of New Mexico's PSD program (52
FR 5964) to a full approval based on the November 2, 1988, approval of
New Mexico's stack height regulations (53 FR 44191), at which point New
Mexico fully met the condition in the conditional approval. Lastly, EPA
proposed to make several CFR codification technical corrections to
amend the description of the approved New Mexico SIP.
    Our May 2, 2011, proposal provides a detailed description of the
revisions and the rationale for EPA's proposed actions, together with a
discussion of the opportunity to comment. The public comment period for
these actions closed on June 1, 2011, and we did not receive any
comments. For more information, please see our proposed rulemaking, at
76 FR 24421, the Technical Support Document, and other supporting
documentation available in the electronic docket for this action at
http://www.regulations.gov (Docket Identification No. EPA-R06-OAR-2009-
0647).

II. Additional Background Information

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on the infrastructure SIP
submissions.\1\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements that it would
address two issues separately and not as part of actions on the
infrastructure SIP submissions: (i) Existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
at sources, that may be contrary to the CAA and EPA's policies
addressing such excess emissions (``SSM''); and (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated that it would address the issues
separately: (i) existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source NSR'');
and (ii) existing provisions for Prevention of Significant
Deterioration programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). In light of the comments, EPA now believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues. EPA notes that we did not receive
comments on these issues in response to our New Mexico proposal (76 FR
24421), but because of the concern raised in the context of action on
other state infrastructure SIP submissions, EPA feels it important to
further clarify our proposal.
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    \1\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision

requires that states must make a SIP submission ``within 3 years (or
such shorter period as the Administrator may prescribe) after the
promulgation of a national primary ambient air quality standard (or any
revision thereof)'' and that these SIPS are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. Section
110(a)(2) includes a list of specific elements that ``[e]ach such
plan'' submission must meet. EPA has historically referred to these
particular submissions that states must make after the promulgation of
a new or revised NAAQS as ``infrastructure SIPs.'' This specific term
does not appear in the statute, but EPA uses the term to distinguish
this particular type of SIP submission designed to address basic
structural requirements of a SIP from other types of SIP submissions
designed to address other different requirements, such as
``nonattainment SIP'' submissions required to address the nonattainment
planning requirements of part D, ``regional haze SIP'' submissions
required to address the visibility protection requirements of CAA
section 169A, new source review permitting program submissions required
to address the requirements of part D, and a host of other specific
types of SIP submissions that address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\2\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\3\
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    \2\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \3\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162
(May 12, 2005) (defining, among other things, the phrase
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\4\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\5\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's SIP.
Finally, EPA notes that not every element of section 110(a)(2) would be
relevant, or as relevant, or relevant in the same way, for each new or
revised NAAQS and the attendant infrastructure SIP submission for that
NAAQS. For example, the monitoring requirements that might be necessary
for purposes of section 110(a)(2)(B) for one NAAQS could be very
different than what might be necessary for a different pollutant. Thus,
the content of an infrastructure SIP submission to meet this element
from a state might be very different for an entirely new NAAQS, versus
a minor revision to an existing NAAQS.\6\
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    \4\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
    \5\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``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,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\7\ Within this

guidance document, EPA described the duty of states to make these
submissions to meet what the Agency characterized as the
``infrastructure'' elements for SIPs, which it further described as the
``basic SIP requirements, including emissions inventories, monitoring,
and modeling to assure attainment and maintenance of the standards.''
\8\ As further identification of these basic structural SIP
requirements, ``attachment A'' to the guidance document included a
short description of the various elements of section 110(a)(2) and
additional information about the types of issues that EPA considered
germane in the context of such infrastructure SIPs. EPA emphasized that
the description of the basic requirements listed on attachment A was
not intended ``to constitute an interpretation of '' the requirements,
and was merely a ``brief description of the required elements.'' \9\
EPA also stated its belief that with one exception, these requirements
were ``relatively self explanatory, and past experience with SIPs for
other NAAQS should enable States to meet these requirements with
assistance from EPA Regions.'' \10\ For the one exception to that
general assumption, however, i.e., how states should proceed with
respect to the requirements of section 110(a)(2)(G) for the 1997
PM2.5 NAAQS, EPA gave much more specific recommendations.
But for other infrastructure SIP submittals, and for certain elements
of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that
each State would work with its corresponding EPA regional office to
refine the scope of a State's submittal based on an assessment of how
the requirements of section 110(a)(2) should reasonably apply to the
basic structure of the State's SIP for the NAAQS in question.
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    \7\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA
issued comparable guidance for the 2006 PM2.5 NAAQS
entitled ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T. Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
    \8\ Id., at page 2.
    \9\ Id., at attachment A, page 1.
    \10\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\11\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\12\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\13\
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    \11\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \12\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \13\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4540 (January 26, 2011) (final disapproval of such provisions).

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III. What action is EPA taking?

    EPA is approving the New Mexico SIP submittals dated December 10,
2007, and March 3, 2008, that identify where and how the 14 basic
infrastructure elements are in the EPA-approved SIP as specified in
section 110(a)(2) of the Act. We are determining that the following
section 110(a)(2) elements are contained in the current New Mexico SIP:
emission limits and other control measures (section 110(a)(2)(A));
ambient air quality monitoring/data system (section 110(a)(2)(B));
program for enforcement of control measures (section 110(a)(2)(C));
international and interstate pollution abatement (section
110(a)(2)(D)(ii)); adequate resources (section 110(a)(2)(E));
stationary source monitoring system (section 110(a)(2)(F)); emergency
power (section 110(a)(2)(G)); future SIP revisions (section
110(a)(2)(H)); consultation with government officials (section
110(a)(2)(J)); public notification (section 110(a)(2)(J)); PSD and
visibility protection (section 110(a)(2)(J)); air quality modeling/data
(section 110(a)(2)(K)); permitting fees (section 110(a)(2)(L)); and
consultation/participation by affected local entities (section
110(a)(2)(M)).
    In conjunction with our determination that the New Mexico SIP meets
the section 110(a)(1) and (2) infrastructure SIP elements listed above,
we are also approving a severable portion of a SIP revision submitted
by NMED to EPA on November 2, 2006. This portion of the submittal
contains a revision to 20.2.3 NMAC (Ambient Air Quality Standards),
adding a new subpart 9 to 20.2.3 NMAC, including language to ensure
that sources being issued a permit under the State's minor source
permitting program, found at 20.2.72 NMAC (Construction Permits), are
required to continue to address the State's ambient air quality
standards in their application. The revision also includes language in
<IP_ADDRESS> NMAC that removes the state ambient air quality standards from
being an applicable requirement under the State's Title V permitting
program, found at 20.2.70 NMAC (Operating Permits). Because New
Mexico's Title V permitting program is outside the scope of the New
Mexico SIP, and has not been approved by EPA into the New Mexico SIP,
approval of the revision to 20.2.3 NMAC is appropriate and will not
constitute a relaxation of the current New Mexico SIP. EPA is approving
the portion of the November 2, 2006 submittal that revises 20.2.3 NMAC,
as indicated above, because it clarifies the permitting requirements
under the New Mexico SIP. The revision to 20.2.3 NMAC we are approving
into the SIP is severable from the other portions of the November 2,
2006 SIP submittal. At this time, EPA is not taking action on other
portions of the November 2, 2006 SIP revision submitted by NMED; EPA
intends to act on the other revisions at a later time.
    EPA is also correcting an administrative oversight by now
converting our February 27, 1987, conditional approval of New Mexico's
PSD program (52 FR 5964), to a full approval based on our November 2,
1988, approval of New Mexico's stack height regulations (53 FR 44191).
Upon our approval of New Mexico's stack height regulations on November
2, 1988, New Mexico had fully met all the conditions of EPA's February
27, 1987, conditional approval of the State's PSD program. However, due
to an administrative oversight, EPA failed to convert the conditional
approval of New Mexico's PSD program into a full approval at that time.
The fact that EPA had not formally converted the conditional approval
to a full approval until now had no impact on the State's authority to
implement the PSD program in the interim.
    Lastly, EPA is making four CFR codification technical corrections
to amend the following: (1) the table titled ``EPA Approved New Mexico
Regulations,'' found under 40 CFR 52.1620(c), by (i) deleting entries
for part 70 (Operating Permits) and part 71 (Operating Permit Emission
Fees) of 20.2 NMAC, and (ii) changing the EPA approval date for the
recodification of New Mexico's air quality regulations in the SIP from
the currently listed November 25, 1997 date to the correct date of
September 26, 1997; (2) the table titled ``EPA Approved Nonregulatory
Provisions And Quasi-Regulatory Measures In The New Mexico SIP,'' found
under 40 CFR 52.1620(e), by including an entry for New Mexico's Air
Pollution Episode Contingency Plan approved by EPA into the SIP on
August 21, 1990; (3) 40 CFR 52.1634(a), by amending the paragraph such
that it identifies that New Mexico has fully met all conditions of our
February 27, 1987 conditional approval of New Mexico's PSD program such
that our conditional approval is converted to a full approval; and (4)
40 CFR 52.1640(c)(66)(i)(B), by amending the paragraph such that it
correctly identifies the State regulations submitted by the State and
approved by EPA into the New Mexico SIP. We are making the above CFR
corrections to make clear which New Mexico air quality regulations are
currently approved into the New Mexico SIP and the EPA approval date of
these regulations into the SIP.

IV. Final Action

    We are approving the submittals provided by the State of New Mexico
to demonstrate that the New Mexico SIP meets the following requirements
of Section 110(a)(1) and (2) of the Act:
    Emission limits and other control measures (110(a)(2)(A) of the
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the
Act);
    Program for enforcement of control measures (110(a)(2)(C) of the
Act);
    Interstate Transport (110(a)(2)(D)(ii) of the Act);
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the Act);
    Public notification (110(a)(2)(J) of the Act);
    Prevention of significant deterioration and visibility protection
(110(a)(2)(J) of the Act);
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities (110(a)(2)(M)
of the Act).
    EPA is also approving a severable revision to regulation 20.2.3
NMAC (Ambient Air Quality Standards), which was submitted by New Mexico
on November 2, 2006. The revision to 20.2.3 NMAC removes the state
ambient air quality standards from being an applicable requirement
under the State's Title V permitting program, found at 20.2.70 NMAC
(Operating Permits). The revision also adds language to ensure that
sources being issued a permit under the State's minor source permitting
program, found at 20.2.72 NMAC (Operating Permits), are required to
continue to address the State's ambient air quality standards in their
application.
    EPA is also formally converting our February 27, 1987, conditional
approval of New Mexico's PSD program (52 FR 5964), to a full approval
based on the November 2, 1988, approval of New Mexico's stack height
regulations (53 FR 44191), at which point New Mexico fully met the
condition in the conditional approval.

    Lastly, EPA is making CFR codification technical corrections to
amend the following:
    1. The table titled ``EPA Approved New Mexico Regulations,'' found
under 40 CFR 52.1620(c), by (i) deleting entries for part 70 (Operating
Permits) and part 71 (Operating Permit Emission Fees) of 20.2 NMAC and
(ii) changing the EPA approval date for the recodification of New
Mexico's air quality regulations in the SIP from the currently listed
November 25, 1997 date to the correct date of September 26, 1997.
    2. The table titled ``EPA Approved Nonregulatory Provisions And
Quasi-Regulatory Measures In The New Mexico SIP,'' found under 40 CFR
52.1620(e), by including an entry for New Mexico's Air Pollution
Episode Contingency Plan approved by EPA into the SIP on August 21,
1990.
    3. 40 CFR 52.1634(a), by amending the paragraph such that it
identifies that New Mexico has fully met all conditions of our February
27, 1987 conditional approval of New Mexico's PSD program such that our
conditional approval is converted to a full approval.
    4. 40 CFR 52.1640(c)(66)(i)(B), by amending the paragraph such that
it correctly identifies the State regulations submitted by the State
and approved by EPA into the New Mexico SIP.
    EPA is approving these actions in accordance with section 110 of
the Act and EPA's regulations and consistent with EPA guidance.

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, 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 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.
    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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 13, 2011. 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.

    Dated: June 30, 2011.
Al Armendariz,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart GG--New Mexico

0
2. Section 52.1620 is amended:
0
a. In paragraph (c), under the first table entitled ``New Mexico
Administrative Code (NMAC) Title 20--Environmental Protection Chapter
2--Air Quality,'' by removing the entries for Part 70 and Part 71 and
by revising the entries for Part 2, Part 3, Part 5, Part 8, Part 10,
Part 11 through Part 22, Part 30 through Part 34, Part 40, Part 41,
Part 60, Part 61, Part 72, Part 75, and Part 80;
0
b. In paragraph (e), under the second table entitled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures In The New
Mexico SIP,'' by adding to the end of the table a new entry for ``Air
Pollution Episode Contingency Plan for New Mexico'' followed by a new
entry for ``Infrastructure for the 1997 Ozone and 1997 PM2.5 NAAQS''.
    The amendments and additions read as follows:

Sec.  52.1620  Identification of plan.

* * * * *
     (c) * * *

                                                           EPA-Approved New Mexico Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                State
          State citation                Title/subject         approval/               EPA approval date                           Comments
                                                           effective date
--------------------------------------------------------------------------------------------------------------------------------------------------------
                             New Mexico Administrative Code (NMAC) Title 20--Environmental Protection Chapter 2--Air Quality
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
Part 2............................  Definitions..........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 3............................  Ambient Air Quality          9/6/2006  7/15/11,..............................  .....................................
                                     Standards.                            [Insert FR page number where document
                                                                            begins].
Part 5............................  Source Surveillance..      11/30/1995  9/26/1997, 62 FR 50514................  .....................................

                                                                      * * * * * * *
Part 8............................  Emissions Leaving New      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Mexico.
Part 10...........................  Woodwaste Burners....      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 11...........................  Asphalt Process            11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Equipment.
Part 12...........................  Cement Kilns.........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 13...........................  Gypsum Processing          11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Plants.
Part 14...........................  Particulate Emissions      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     From Coal Burning
                                     Equipment.
Part 15...........................  Pumice, Mica and           11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Perlite Process
                                     Equipment.
Part 16...........................  Nonferrous Smelters        11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     (New and Existing)-
                                     Particulate Matter.
Part 17...........................  Nonferrous Smelters        11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     (Existing)-
                                     Particulate Matter.
Part 18...........................  Oil Burning Equipment-     11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Particulate Matter.
Part 19...........................  Potash, Salt, or           11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Sodium Sulfate
                                     Processing Equipment-
                                     Particulate Matter.
Part 20...........................  Lime Manufacturing         11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Plants-Particulate
                                     Matter.
Part 21...........................  Fugitive Particulate       11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Matter Emissions
                                     from Nonferrous
                                     Smelters.
Part 22...........................  Fugitive Particulate       11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Matter Emissions
                                     from Roads within
                                     the Town of Hurley.
Part 30...........................  Kraft Mills..........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 31...........................  Coal Burning               11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Equipment-Sulfur
                                     Dioxide.
Part 32...........................  Coal Burning               11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Equipment-Nitrogen
                                     Dioxide.
Part 33...........................  Gas Burning Equipment-     11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Nitrogen Dioxide.
Part 34...........................  Oil Burning Equipment-     11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Nitrogen Dioxide.
Part 40...........................  Sulfuric Acid              11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Production Units-
                                     Sulfur Dioxide, Acid
                                     Mist and Visible
                                     Emissions.
Part 41...........................  Nonferrous Smelters-       11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Sulfur.
Part 60...........................  Open Burning.........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................
Part 61...........................  Smoke and Visible          11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Emissions.
Part 72...........................  Construction Permits.      11/30/1995  9/26/1997, 62 FR 50514................  Subparts I, II, III, and V in SIP.

                                                                      * * * * * * *
Part 75...........................  Construction Permit        11/30/1995  9/26/1997, 62 FR 50514................  .....................................
                                     Fees.

                                                                      * * * * * * *
Part 80...........................  Stack Heights........      11/30/1995  9/26/1997, 62 FR 50514................  .....................................

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *
* * * * *

                                EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures In The New Mexico SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                  Applicable
                                 geographic or     State submittal date/effective
    Name of SIP provision        nonattainment                  date                        EPA approval date                     Explanation
                                     area
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                       * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air Pollution Episode          Statewide.......  7/7/1988.........................  8/21/1990, 55 FR 34013...........  .................................
 Contingency Plan for New
 Mexico.
Infrastructure for the 1997    Statewide.......  12/10/2007.......................  7/15/11, [Insert FR page number    Approval for 110(a)(2)(A), (B),
 Ozone and 1997 PM2.5 NAAQS.                     3/3/2008.........................   where document begins].            (C), (D)(ii), (E), (F), (G),
                                                                                (H), (J), (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Section 52.1634 is amended by revising paragraph (a) to read as
follows:

Sec.  52.1634  Significant deterioration of air quality.

    (a) The plan submitted by the Governor of New Mexico on February
21, 1984 (as adopted by the New Mexico Environmental Improvement Board
(NMEIB) on January 13, 1984), August 19, 1988 (as revised and adopted
by the NMEIB on July 8, 1988), and July 16, 1990 (as revised and
adopted by the NMEID on March 9, 1990), Air Quality Control Regulation
707--Permits, Prevention of Significant Deterioration (PSD) and its
Supplemental document, is approved as meeting the requirements of part
C, Clean Air Act for preventing significant deterioration of air
quality. Additionally, on November 2, 1988, EPA approved New Mexico's
stack height regulation into the SIP (53 FR 44191), thereby satisfying
the conditions of EPA's conditional approval of the State's PSD program
on February 27, 1987 (52 FR 5964). Therefore, the conditional approval
was converted to a full approval on July 15, 2011.
* * * * *

0
4. Section 52.1640 is amended by revising paragraph (c)(66)(i)(B) to
read as follows:

Sec.  52.1640  Original identification of plan section.

* * * * *
    (c) * * *
    (66) * * *
    (i) * * *
    (B) New Mexico Administrative Code, Title 20, Chapter 2, Parts 3,
5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 30, 31,
32, 33, 34, 40, 41, 60, 61, 72 (Subparts I, II and III; Subpart V,
Sections 501 and 502), 73, 75, 79, and 80; adopted by the New Mexico
Environmental Improvement Board on October 20, 1995, and filed with the
State Records and Archives Center on October 30, 1995.
* * * * *
[FR Doc. 2011-17786 Filed 7-14-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: August 9, 2007 (Volume 72, Number 153)]
[Notices]
[Page 44837]
[DOCID:fr09au07-55]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. CP05-357-006; CP07-426-000]

Cheniere Creole Trail Pipeline, L.P.; Cheniere Sabine Pass
Pipeline, L.P.; Notice of Application for Amendment to Certificate of
Public Convenience and Necessity and Application for Abandonment

August 2, 2007.
    Take notice that on July 31, 2007, Cheniere Creole Trail Pipeline,
L.P., 700 Milam Street, Suite 800, Houston, Texas 77002 (Cheniere
Creole Trail) and Cheniere Sabine Pass Pipeline, L.P., 700 Milam
Street, Suite 800, Houston, Texas 77002 (Cheniere Sabine Pass), filed
with the Federal Energy Regulatory Commission (Commission) in the
above-referenced dockets an abbreviated application under section 7 of
the Natural Gas Act, all as more fully set forth in the application
which is on file with the Commission and open to public inspection. The
filing may also be viewed on the Commission's Web site at http://www.ferc.gov
 using the ``eLibrary'' link. Enter the docket number

excluding the last three digits in the docket number field to access
the document. For assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll free at<PHONE_NUMBER>, or for TTY,

contact<PHONE_NUMBER>.
    The applicants seek an order from the Commission: (i) Authorizing
Cheniere Sabine Pass to abandon by merger with Cheniere Creole Trail
its Certificate of Public Convenience and Necessity issued in Docket
Nos. CP04-38-000 and CP04-38-001 for a 16-mile-long, 42-inch-diameter
pipeline with appurtenances (Sabine Pass Segment) located in Cameron
Parish, Louisiana (currently under construction); (ii) authorizing
Cheniere Sabine Pass to abandon its blanket transportation certificate
issued in Docket No. CP04-39-000 under Subpart G of Part 284 of the
Commission's regulations and its blanket construction certificate
issued in Docket No. CP04-40-000 under Subpart F of Part 157 of the
Commission's regulations; (iii) authorizing Cheniere Creole Trail to
amend its Certificate of Public Convenience and Necessity to include
the Sabine Pass Segment such that it will function as an integrated
pipeline system with a capacity of 2.0 Bcf per day (Cheniere Creole
Trail's pipeline is also currently under construction); (iv)
authorizing Cheniere Creole Trail's proposed revised Zone 1
transportation rates based on a revised estimated capital cost of $
571.6 million; and (v) authorizing certain proposed revisions to
Cheniere Creole Trail's Pro Forma FERC Gas Tariff in these subjects,
Fuel Retainage, Receipt Pressure, Interruptible and Short-Term Firm
Services Revenue Crediting, Imbalances, Park & Loan.
    Any questions regarding the application should be directed to
Patricia Outtrim, Cheniere Creole Trail Pipeline, L.P., 700 Milam
Street, Suite 800, Houston, Texas 77002,<PHONE_NUMBER>, or Lisa
Tonery, King & Spalding LLP, 1185 Avenue of the Americas, New York, NY
10036,<PHONE_NUMBER>.
    Pursuant to section 157.9 of the Commission's rules, within 90 days
of this Notice the Commission staff will either: Complete its
environmental assessment (EA) and place it into the Commission's public
record (eLibrary) for this proceeding; or issue a Notice of Schedule
for Environmental Review. If a Notice of Schedule for Environmental
Review is issued, it will indicate, among other milestones, the
anticipated date for the Commission staff's issuance of the final
environmental impact statement (FEIS) or EA for this proposal. The
filing of the EA in the Commission's public record for this proceeding
or the issuance of a Notice of Schedule for Environmental Review will
serve to notify federal and state agencies of the timing for the
completion of all necessary reviews, and the subsequent need to
complete all federal authorizations within 90 days of the date of
issuance of the Commission staff's FEIS or EA.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date shown
below. Anyone filing a motion to intervene or protest must serve a copy
of that document on the Applicant. On or before the comment date, it is
not necessary to serve motions to intervene or protests on persons
other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    Comment Date: 5 p.m. Eastern Time on August 22, 2007.

Kimberly D. Bose,
Secretary.
[FR Doc. E7-15522 Filed 8-8-07; 8:45 am]

BILLING CODE 6717-01-P


PUERTO RICO ENVIRONMENTAL QUALITY BOARD

ANTI-DEGRADATION POLICY IMPLEMENTATION PROCEDURE

The Puerto Rico Water Quality Standards Regulation (PRWQSR), as amended,
includes an adopted Anti-degradation Policy.  The goal of this Policy is
to conserve, maintain and protect the designated and existing uses of
the waters of Puerto Rico and the water quality necessary to protect
these uses.

It is the desire of the Commonwealth of Puerto Rico to develop and adopt
identified methods for implementing the above-referenced
Anti-degradation Policy to be consistent with the Code of Federal
Regulations (40 CFR Part 131.12).  Therefore, in order to promote the
aforementioned policy the Puerto Rico Environmental Quality Board (EQB)
has developed the following procedure.

General Policy Statement:

Point sources of pollutant are subject to an anti-degradation review.

An anti-degradation review shall be initiated as part of the Section
401-(Water Quality Certification Process( of the Clean Water Act (CWA).

The following are not subject to the anti-degradation review due to the
fact that they are non discharge systems and are managed under specific
regulations:

All Non-Point sources of pollutant

Underground Storage Tanks

Underground Injection Facilities

Confined Animals Feeding Operations?? (Why is this exempt)

The protection of water quality shall include the maintenance,
migration, protection, and propagation of desirable species, including,
threatened and endangered species identified in the state of federal
regulations.

Definitions

All the definitions included in Article 1 of the PRWQSR, as amended, are
applicable to this procedure.

High Quality Waters:

Are waters whose quality is better than that necessary to protect
(fishable/swimmable( designated uses.  High Quality Waters are
identified by EQB on a parameter-by-parameter basis.

Outstanding Natural Resources Waters (ONRW):

Are waters classified as SA and SE by the PRWQSR, as amended or any
other water designated by Resolution of the Governing Board of EQB.
ONRWs are waters that are ecologically important, unique or sensitive.

Anti-degradation Review Procedure

The anti-degradation review will commence with the submission of the CWA
Section 401 Water Quality Certification request.  The EQB uses a
parameter-by-parameter approach for the implementation of the
anti-degradation policy and will review each parameter separately as it
evaluates the certification request.  Certification of Compliance with
Article 4-C of the Environmental Public Policy Act (Law No. 9), as
amended, regarding the environmental document review process is required
prior to submission of the aforementioned request.  During the
evaluation process of the environmental document an alternatives
analysis shall be done and a public participation period is provided in
accordance with the Reglamento de la Junta de Calidad Ambiental para el
Proceso de Presentación, Evaluación y Trámite de Documentos
Ambientales.

In conducting an anti-degradation review, the Water Quality Area (WQA)
of EQB will sequentially apply the following steps:

Determine which level of anti-degradation applies

Tier 1 ( Protection of  Existing and Designated Uses

Tier 2 ( Protection of High Quality Waters

Tier 3 ( Protection of Outstanding Natural Resources Waters

Review existing water quality data and other information submitted by
the applicant.  The applicant shall provide to the WQA the following
information regarding the discharge:

A description of the nature of the pollutants to be discharged.

Treatment technologies applied to the pollutants to be discharged.

Nature of business.

Daily maximum and average flow to be discharged.

Effluent characterization.

Effluent limitations requested to be applied to the discharge according
to         Section 6.11 of the PRWQSR.

Location of the point of discharge.

Receiving waterbody name.

Water quality data of the receiving waterbody.

Receiving waterbody minimum flow (7Q2 and 7Q10) for stream waters.

Location of Water intakes within the waterbody.

Any other necessary information required by the PRWQSR.

For high quality waters (as defined in Section b.II), a demonstration
that a lowering in water quality is necessary to accommodate important
social or economic development in the area where the waters are located,
and an alternatives analysis.

Determine if additional information or assessment is necessary to make
the decision.

The WQA prepares an intent to issue or deny the water quality
certificate and publishes a notice in a newspaper of wide circulation in
Puerto Rico informing the WQA(s preliminary decision and granting a
public participation period of at least thirty (30) days.

Address the comments received from the interested parties, and consider
such comments as part of the decision making process.

The EQB makes the final determination to issue or deny the requested
certification.  Such decision is subject to the reconsideration
procedure established in Law 170 of August 12, 1988, Ley de
Procedimiento Administrativo Uniforme del Estado Libre Asociado de
Puerto Rico.

Implementation Procedures

Activities Regulated by NPDES Permits

Tier 1 ( Protection of Existing and Designated Uses (Figure 1):

Tier 1 waters are:

Those waters (except ONRW, which are Tier 3 waters) identified as
Category 5 in the 305(b)/303(d) Integrated Report (Puerto Rico Water
Quality Inventory and List of Impaired Waters) (provide a brief
explanation of what (Category 5" is); and

Those waters (except ONRW, which are Tier 3 waters) for which attainment
of applicable water quality standards has been or is expected to be,
achieved through implementation of effluent limitations more stringent
than technology-based controls (Best Practicable Technology, Best
Available Technology and Secondary Treatment).

To implement Tier 1 anti-degradation, EQB must determine if a discharge
would lower the water quality to the extend that it would no longer be
sufficient to protect and maintain the existing and designated uses of
that waterbody.

When a waterbody has been affected by a parameter of concern causing
that it to be included in Category 5 in the 305(b)/303(d) Integrated
Report (Puerto Rico Water Quality Inventory and List of Impaired
Waters), then the WQA will not allow a net increase (define this term)
of loading for the parameter of concern or pollutants affecting the
parameter of concern.  This no net increase will be achieved by meeting
the applicable water quality standards at the end of the pipe.  Until
such time that a Total Maximum Daily Load (TMDL) is developed for the
parameter of concern for the waterbody, no discharge will be allowed to
cause or contribute to further degradation of the waterbody.

When the assimilative capacity of a waterbody is not sufficient to
ensure maintenance of the water quality standard criterion for a
parameter of concern with an additional load to the waterbody, then the
WQA will not allow a net increase (again - define this term) of loading
for the parameter of concern or pollutants affecting the parameter of
concern.  This no net increase will be achieved by meeting the
applicable water quality standards at the end of the pipe.  Until such
time that a TMDL is developed for the parameter of concern for the
waterbody, no discharge will be allowed to cause or contribute to
further degradation of the waterbody.

Tier 2 ( Protection of High Quality Waters (Figure 2):

To verify that a waterbody is a high quality water for a parameter of
concern which initiates a Tier 2 anti-degradation review, the WQA must
evaluate:

the existing water quality of the waterbody;

the projected water quality of the waterbody following the procedures
established in the applicable Sections of the PRWQSR (Articles 5, 10 and
so on); and

if the existing and designated uses will be maintained and protected
with the lowering of water quality.

In multiple discharge situations, the effects of all discharges shall be
considered (provide a short explanation as to how the effects of
multiple discharge situations will be considered) .

In order to allow the lowering of water quality in a waterbody, the
applicant must  demonstration that a lowering in water quality is
necessary to accommodate important social or economic development in the
area where the waters are located. This demonstration must include an
alternatives analysis. show and justify the necessity for it the
applicable procedures established in the PRWQSR.  EQB will not allow the
taking possession of all a reduction in the available assimilative
capacity of a waterbody for a parameter of concern by a discharger if it
is not demonstrated, to full satisfaction of EQB, the necessity of the
that the requested effluent limitation for the parameter of concern  is
necessary to accommodate important social or economic development.

Tier 3 ( Protection of Outstanding Natural Resources Waters (Figure 3):

This section needs to include a description of the process used for
designating specific waters as ONRWs (i.e., Class SA or SE), such as the
processs by which the petitioning process where the public can nominate
a specific water to be classifed as an ONRW .

Class SA and SE waters existing characteristics shall not be altered,
except by natural causes, in order to preserve the existing natural
phenomena.

Point Sources:  None discharge will be allowed in those waterbodies.

Activities Regulated by CWA Section 404 or Rivers and Harbors Act
Section 10 Permits (Discharge of dredged or fill material)

The EQB will allow the discharge of dredged or fill material into a
waterbody if it can be demonstrated that such discharge will not have an
unacceptable adverse impact either individually or in combination with
other activities affecting the waterbody of concern.  The impacts to
waterbodies due to the discharge of dredged or fill material should be
avoided, minimized and mitigated.

The discharge of dredged or fill material shall not be certified if
there is a practicable alternative to the proposed discharge which would
have less adverse impact on the aquatic ecosystem, so long as the
alternative does not have other more significant adverse environmental
consequences.  Activities which are not water dependent are presumed to
have practicable alternatives, unless the applicant clearly demonstrates
otherwise.  No discharge of dredged and fill material shall be certified
unless appropriated and practicable steps have been taken which minimize
potential adverse impacts of the discharge on the aquatic ecosystem.

PREQB(s Anti-degradation Policy Implementation Procedure

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PREQB(s Anti-degradation Policy Implementation Procedure

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PREQB(s Anti-degradation Policy Implementation Procedure

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FIGURE 2

FIGURE 3