[Federal Register Volume 77, Number 230 (Thursday, November 29, 2012)]
[Proposed Rules]
[Pages 71145-71163]
[FR Doc No: 2012-28910]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-NM-0006; FRL-9756-3]

Approval and Promulgation of Implementation Plans; New Mexico;
New Source Review (NSR) Preconstruction Permitting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the applicable New
Source Review (NSR) State Implementation Plan (SIP) for New Mexico.
Among the changes, EPA is proposing to approve are the following: The
establishment of a new minor NSR (MNSR) general construction permitting
program; changes to the MNSR Public Participation requirements; the
establishment of three different types of MNSR Permit Revisions; and
the addition of exemptions for de minimis emission sources and
activities from obtaining a MNSR permit. EPA proposes to find that
these revisions to the New Mexico SIP comply with the Federal Clean Air
Act (the Act or CAA) and EPA regulations and are consistent with EPA
policies. EPA is proposing this action under section 110 of the Act.

DATES: Comments must be received on or before December 31, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2005-NM-0006, by one of the following methods:
    (1) www.regulations.gov: Follow the on-line instructions for
submitting comments.
    (2) Email: Ms. Ashley Mohr at<EMAIL_ADDRESS>    (3) Fax: Ms. Ashley Mohr, Air Permits Section (6PD-R), at fax
number<PHONE_NUMBER>.
    (4) Mail: Ms. Ashley Mohr, Air Permits Section (6PD-R),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
    (5) Hand or Courier Delivery: Ms. Ashley Mohr, 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 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays.
Special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2005-NM-0006. EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or email, if you believe that it is
CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an ``anonymous access'' system, which
means that 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 http://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 along with any disk or CD-ROM
submitted. 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 and any form of encryption and should 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 http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
the disclosure of which 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 in http://www.regulations.gov or in hard copy at the Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 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 to make an appointment. If
possible, please make the appointment at least two working days in
advance of your visit. A 15 cent per page fee will be charged for
making photocopies of documents. On the day of the visit, please check
in at the EPA Region 6 reception area on the seventh floor at 1445 Ross
Avenue, Suite 700, Dallas, Texas.
    The State submittal related to this SIP revision, and which is part
of the EPA docket, is also available for public inspection at the State
Air Agency listed below during official business hours by appointment:
    New Mexico Environment Department, Air Quality Bureau, 1301 Siler
Road, Building B, Santa Fe, New Mexico.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning
today's direct final action, please contact Ms. Ashley Mohr (6PD-R),
Air Permits Section, Environmental Protection Agency, Region 6, 1445
Ross Avenue (6PD-R), Suite 1200, Dallas, Texas 75202-2733, telephone
(214) 665-7289; fax number<PHONE_NUMBER>; email address
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document the following terms
have the meanings described below:
     ``we'', ``us'' and ``our'' refer to EPA.
     ``Act'' and ``CAA'' mean the Clean Air Act.

     ``40 CFR'' means Title 40 of the Code of Federal
Regulations--Protection of the Environment.
     ``SIP'' means the State Implementation Plan established
under section 110 of the Act.
     ``NSR'' means new source review.
     ``TSD'' means the Technical Support Document for this
action.
     ``NAAQS'' means any national ambient air quality standard
established under 40 CFR part 50.

Table of Contents

I. What action is EPA proposing?
II. What did New Mexico submit?
    A. May 29, 1998 SIP Revision Submittal
    B. November 6, 1998 SIP Revision Submittal
    C. April 11, 2002 SIP Revision Submittal
    D. April 25, 2005 SIP Revision Submittal
    E. November 2, 2006 SIP Revision Submittal
III. EPA's Evaluation
    A. What are the requirements for EPA's evaluation of a
preconstruction permitting program SIP submittal?
    B. Technical Review of New Mexico's SIP Revision Submittals
    1. Submitted Revisions to Section 203--Contents of Permit
Applications
    2. Submitted Revisions to Section 207--Permit Decisions and
Appeals
    3. Submitted Revisions to Section 216--New Applicability
Conditions and Requirements for Sources Located in Nonattainment
Areas
    4. Submittal of New Section 220--Minor NSR General Permits
    a. 110(l) Analysis for Section 220
    5. Submitted Revisions to Section 206--Public Notice and
Participation for Minor NSR
    a. 110(l) Analysis for Section 206
    6. Submittal of New Section 219--Permit Revisions for Minor NSR
    a. Administrative Permit Revisions
    b. Technical Permit Revisions
    c. 110(l) Analysis for Technical Revisions
    d. Significant Permit Revisions
    7. Submitted Revisions to Section 202--New Exemptions for de
minimis Sources and Activities From Minor NSR Permitting
Requirements
    a. Paragraph A Exemptions
    b. 110(l) Analysis for Paragraph A Exemptions
    c. Paragraph B Exemptions
    d. 110(l) Analysis for Paragraph B Exemptions
    e. Paragraph C Exemptions
    f. 110(l) Analysis for Paragraph C Exemptions
    g. Portable Source Relocation
    h. Additional 110(l) Analysis--Historical Look Back
IV. Proposed Action
    A. What are we not addressing in this proposed action?
V. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    The Act at section 110(a)(2) requires states to develop and submit
to EPA for approval into the 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 sources and modifications, collectively referred to as
the NSR SIP. The CAA NSR SIP program is composed of three separate
programs: Prevention of Significant Deterioration (PSD), Nonattainment
New Source Review (NNSR), and MNSR. 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 NAAQS 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; and part 51, Appendix S.
    EPA is proposing to approve revisions to the NSR SIP for New Mexico
submitted on May 29, 1998, November 6, 1998, April 11, 2002, April 25,
2005, and November 2, 2006, which incorporate changes to the
Construction Permits regulation contained in 20.2.72 of the New Mexico
Administrative Code (NMAC), also known as Part 72. Part 72 contains the
provisions that establish New Mexico's Minor NSR permitting program as
well as preconstruction permitting requirements potentially applicable
to other programs under the NMAC. EPA also is proposing to approve as
part of the New Mexico NSR SIP, the letter dated November 7, 2012, from
the Secretary committing the NMED Air Quality Bureau to providing
notification on the NMED's Web site of all second 30-day public comment
periods provided for under Paragraph B of Section 206 of Part 72.
    The five SIP revisions submittals under review in this action
contain proposed changes to each of the current SIP-approved Sections
of Part 72 and include the proposed addition of two new Sections within
the Part. All changes are identified in Table 1 of this rulemaking.
These proposed changes include non-substantive changes to Part 72, such
as corrections of typographical errors and additions of clarifying
language to the existing SIP. These proposed changes also include
revisions that result in a more stringent SIP than currently approved,
such as incorporation of additional recordkeeping and notification
requirements for portable sources to relocate without a permit; these
changes resulting in a more stringent SIP are discussed in more detail
in this rulemaking and TSD. Furthermore, some of the revisions include
changes that alter current SIP-approved permitting programs but still
meet applicable federal requirements, such as a change from case-by-
case permitting to general permitting for certain Minor NSR sources.
Finally, proposed changes also include revisions that are less
stringent than the current SIP and those revisions must be evaluated
under section 110(l) of the CAA to determine they will not interfere
with attainment or reasonable further progress or any other applicable
requirement of the Act. These revisions include the addition of
exemptions for de minimis sources and activities from MNSR permitting
requirements, tiered permit revisions, and changes to MNSR public
notice and participation requirements. The November 7, 2012 letter from
the Secretary provides clarifying information for the changes to NMSR
public notice and participation requirements. Our technical analysis of
all these proposed changes contained in the May 29, 1998, November 6,
1998, April 11, 2002, April 25, 2005, and November 2, 2006 SIP revision
submittals, the Secretary's November 7, 2012 letter, and additional
supplemental information provided by NMED, has found that they meet the
CAA and 40 CFR Part 51 and are consistent with EPA
policies.1 2 3 4 Therefore, EPA proposes action to approve
the revisions to Part 72 and the Secretary's November 7, 2012 letter
into the New Mexico NSR SIP. EPA is proposing this action under section
110 of the Clean Air Act (the Act). We

provide a summary of the reasoning comprising our evaluation in this
rulemaking, as well as a more detailed evaluation and analysis in the
Technical Support Document (TSD) for this rulemaking.
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    \1\ Clarification of Exemptions in Section 202 of 20.2.72 NMAC--
Construction Permits letter dated September 19, 2012 from Richard L.
Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate
Director for Air Programs, EPA, Region 6.
    \2\ Clarification of Intent for Section 220 of 20.2.72 NMAC--
Construction Permits letter dated September 19, 2012 from Richard L.
Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate
Director for Air Programs, EPA, Region 6.
    \3\ Permit Exemptions data provided via electronic mail dated
September 18, 2012, from Kerwin Singleton, NMED, to Ashley Mohr,
EPA, Region 6.
    \4\ Historical Technical permit revisions data was provided via
electronic mail dated November 2, 2012, from Kerwin Singleton, NMED,
to Ashley Mohr, EPA, Region 6.
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II. What did New Mexico submit?

    EPA's proposed approval action today addresses portions of five
revisions to the New Mexico SIP submitted on May 29, 1998, November 6,
1998, April 11, 2002, April 25, 2005, and November 2, 2006. EPA also is
proposing to approve as part of the New Mexico NSR SIP, the letter
dated November 7, 2012, from the Secretary.

A. May 29, 1998 SIP Revision Submittal

    The State of New Mexico submitted a revision on May 29, 1998 to
20.2.72 NMAC--Construction Permits for incorporation into the New
Mexico SIP. This submittal includes the following changes:
     Revisions to the following sections: <IP_ADDRESS> NMAC,
Effective Date; <IP_ADDRESS> NMAC, Permit Revisions; <IP_ADDRESS> NMAC,
Contents of Applications; and <IP_ADDRESS> NMAC, Permit Decisions and
Appeals.
     Addition of the following new sections: <IP_ADDRESS> NMAC,
Permit Revisions and <IP_ADDRESS> NMAC, General Permits.

B. November 6, 1998 SIP Revision Submittal

    The State of New Mexico submitted a revision on November 6, 1998 to
20.2.72 NMAC--Construction Permits for incorporation into the New
Mexico SIP. This submittal includes the following changes:
     Revisions to the following sections: <IP_ADDRESS> NMAC,
Permit Conditions and <IP_ADDRESS>0 NMAC, Definitions.

C. April 11, 2002 SIP Revision Submittal

    The State of New Mexico submitted a revision on April 11, 2002 to
20.2.72 NMAC--Construction Permits for incorporation into the New
Mexico SIP. This submittal includes the following changes:
     Revisions to the following sections: <IP_ADDRESS> NMAC,
Definitions; <IP_ADDRESS> NMAC, New Source Review Coordination;
<IP_ADDRESS> NMAC, Contents of Applications; <IP_ADDRESS> NMAC, Public
Notice and Participation; <IP_ADDRESS> NMAC, Permit Decisions and
Appeals; <IP_ADDRESS> NMAC, Basis for Denial of Permit; <IP_ADDRESS>
NMAC, Emergency Permit Process; <IP_ADDRESS> NMAC, Permit Revisions;
<IP_ADDRESS> NMAC, General Permits; <IP_ADDRESS>1 NMAC, Applicability;
<IP_ADDRESS>2 NMAC, Contents of Applications; and <IP_ADDRESS>4 NMAC,
Permit Decisions.
     In addition to the revisions of the previously listed
sections, the April 11, 2002 submittal also included the renumbering of
several existing sections and formatting changes that were made
throughout the entire Part. These formatting changes were necessary for
the provisions contained in Part 72 to match the formatting style of
other Parts contained in the NMAC.

D. April 25, 2005 SIP Revision Submittal

    The State of New Mexico submitted a revision on April 25, 2005 to
20.2.72 NMAC--Construction Permits for incorporation into the New
Mexico SIP. This submittal includes the following changes:
     Revisions to the following section: <IP_ADDRESS> NMAC,
Permit Revisions.

E. November 2, 2006 SIP Revision Submittal

    The State of New Mexico submitted a revision on November 2, 2006 to
20.2.72 NMAC--Construction Permits for incorporation into the New
Mexico SIP. This submittal includes the following changes:
     Revisions to the following section: <IP_ADDRESS> NMAC,
Nonattainment Area Requirements.
    Table 1 summarizes the changes that are in the SIP revisions
submitted on May 29, 1998, November 6, 1998, April 11, 2002, April 25,
2005, and November 2, 2006. A summary of EPA's evaluation of each
section and the basis for this action is discussed in Section III of
this preamble. The TSD includes a detailed evaluation of the referenced
SIP submittals. Table 1. Summary of each SIP submittal that is affected
by this action.

                     Table 1--Summary of Each SIP Submittal That Is Affected by This Action
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                                                       Submittal
            Section                    Title             dates       Description of change     Proposed  action
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                                       20.2.72 NMAC--Construction Permits
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                                                 Issuing Agency
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<IP_ADDRESS> NMAC..............  Issuing Agency....       4/11/2002  Section 100 renumbered   Approval.
                                                                     to Section 1 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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                                                      Scope
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<IP_ADDRESS> NMAC..............  Scope.............       4/11/2002  Section 101 renumbered   Approval.
                                                                     to Section 2 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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                                               Statutory Authority
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<IP_ADDRESS> NMAC..............  Statutory                4/11/2002  Section 102 renumbered   Approval.
                                 Authority.                          to Section 3 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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                                                    Duration
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<IP_ADDRESS> NMAC..............  Duration..........       4/11/2002  Section 103 renumbered   Approval.
                                                                     to Section 4 and
                                                                     revised to update the
                                                                     section title and
                                                                     section references
                                                                     formatting.
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                                                 Effective Date
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<IP_ADDRESS> NMAC..............  Effective Date....       5/29/1998  Section revised to       Approval.
                                                                     account for different
                                                                     effective dates for
                                                                     the different sections
                                                                     contained in this Part.

                                                         4/11/2002  Section 104 renumbered   Approval.
                                                                     to Section 5 and
                                                                     revised to update the
                                                                     section title and date
                                                                     formatting.
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                                                    Objective
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<IP_ADDRESS> NMAC..............  Objective.........       4/11/2002  Section 105 renumbered   Approval.
                                                                     to Section 6 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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                                 Amendment and Supersession of Prior Regulations
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<IP_ADDRESS> NMAC..............  Amendment and            4/11/2002  Section 106 renumbered   Approval.
                                 Supersession of                     to Section 8 and
                                 Prior Regulations.                  revised to update the
                                                                     section title
                                                                     formatting.
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                                                   Definitions
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<IP_ADDRESS> NMAC..............  Definitions.......       4/11/2002  Section 107 renumbered   Approval.
                                                                     to Section 7 and
                                                                     revised to update the
                                                                     section title, section
                                                                     references, and list
                                                                     numbering formatting;
                                                                     Section revised to
                                                                     update the definition
                                                                     of ``Potential
                                                                     Emission Rate''.
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                                                    Documents
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<IP_ADDRESS> NMAC..............  Documents.........       4/11/2002  Section 108 renumbered   Approval.
                                                                     to Section 9 and
                                                                     revised to update the
                                                                     section title
                                                                     formatting.
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               Application for Construction Modification, NSPS, and NESHAP--Permits and Revisions
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<IP_ADDRESS> NMAC..............  Application for          4/11/2002  Section revised to       Approval.
                                 Construction,                       update the section
                                 Modification,                       title, section
                                 NSPS, and NESHAP--                  references, and list
                                 Permits and                         numbering formatting.
                                 Revisions.
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                                         New Source Review Coordination
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<IP_ADDRESS> NMAC..............  New Source Review        4/11/2002  Section revised to       Approval.
                                 Coordination.                       include clarification
                                                                     regarding the number
                                                                     of applications
                                                                     required if source is
                                                                     subject to NSR under
                                                                     multiple parts;
                                                                     Section revised to
                                                                     update the section
                                                                     title and section
                                                                     references formatting.
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                                                Permit Revisions
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<IP_ADDRESS> NMAC..............  Permit Revisions..       5/29/1998  Section revised to add   Approval.
                                                                     a list of emission
                                                                     sources and activities
                                                                     that may be exempt
                                                                     from certain
                                                                     preconstruction
                                                                     permitting
                                                                     requirements; Section
                                                                     revised to include an
                                                                     exemption from
                                                                     preconstruction
                                                                     permitting
                                                                     applicability for a
                                                                     specific group of
                                                                     sources that trigger
                                                                     permitting only as a
                                                                     result of NSPS and
                                                                     NESHAP requirements.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
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                                            Contents of Applications
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<IP_ADDRESS> NMAC..............  Contents of              5/29/1998  Section revised to       Approval.
                                 Applications.                       update provisions to
                                                                     reflect the tiered
                                                                     permit revisions
                                                                     approach and to add
                                                                     clarifying language
                                                                     regarding public
                                                                     notice requirements,
                                                                     including requirements
                                                                     for public service
                                                                     announcements.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
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                                       Confidential Information Protection
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<IP_ADDRESS> NMAC..............  Confidential             4/11/2002  Section revised to       Approval.
                                 Information                         update the section
                                 Protection.                         title and section
                                                                     references formatting.
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                       Construction, Modification and Permit Revision in Bernalillo County
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<IP_ADDRESS> NMAC..............  Construction,            4/11/2002  Section revised to       Approval.
                                 Modification and                    update the section
                                 Permit Revision                     title formatting.
                                 in Bernalillo
                                 County.
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                                         Public Notice and Participation
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<IP_ADDRESS> NMAC..............  Public Notice and        5/29/1998  Section was revised to   Approval.
                                 Participation.                      remove a descriptive
                                                                     term from the
                                                                     provisions that the
                                                                     Department felt was
                                                                     unnecessary and caused
                                                                     confusion in the
                                                                     current provisions.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting;
                                                                     Section revised to
                                                                     change the public
                                                                     notice process to a
                                                                     two-step notice with
                                                                     the public comment
                                                                     period reduced from 45
                                                                     days to 30 days.
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                                          Permit Decisions and Appeals
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<IP_ADDRESS> NMAC..............  Permit Decisions         5/29/1998  Section revised to       Approval.
                                 and Appeals.                        include clarifying
                                                                     language and to
                                                                     specify what
                                                                     requirements in the
                                                                     section apply only to
                                                                     significant permit
                                                                     revisions.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
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                                           Basis for Denial of Permit
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Basis for Denial         4/11/2002  Section revised to       Approval.
                                 of Permit.                          include clarifying
                                                                     language and to delete
                                                                     references to
                                                                     provisions that have
                                                                     been previously
                                                                     removed from the NMAC.
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                                 Additional Legal Responsibilities on Applicants
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Additional Legal         4/11/2002  Section revised to       Approval.
                                 Responsibilities                    update the section
                                 on Applicants.                      title formatting.
----------------------------------------------------------------------------------------------------------------
                                                Permit Conditions
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Permit Conditions.       11/6/1998  Section was revised to   Approval.
                                                                     correct a
                                                                     typographical error
                                                                     that was adopted by
                                                                     the state in a
                                                                     previous revision of
                                                                     the Section.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                              Permit Cancellations
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Permit                   4/11/2002  Section revised to       Approval.
                                 Cancellations.                      update the section
                                                                     title and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                               Permittee's Notification Requirements to Department
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Permittee's              4/11/2002  Section revised to       Approval.
                                 Notification                        update the section
                                 Requirements to                     title.
                                 Department.
----------------------------------------------------------------------------------------------------------------
                                          Startup and Followup Testing
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Startup and              4/11/2002  Section revised to       Approval.
                                 Followup Testing.                   update the section
                                                                     title and section
                                                                     references formatting.
----------------------------------------------------------------------------------------------------------------
                              Source Class Exemption Process (Permit Streamlining)
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Source Class             4/11/2002  Section revised to       Approval.
                                 Exemption Process                   update the section
                                 (Permit                             title, section
                                 Streamlining).                      references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                            Emergency Permit Process
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Emergency Permit         4/11/2002  Section revised to       Approval.
                                 Process.                            update the section
                                                                     title and section
                                                                     references formatting.
----------------------------------------------------------------------------------------------------------------
                                         Nonattainment Area Requirements
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Nonattainment Area       4/11/2002  Section revised to       Approval.
                                 Requirements.                       update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
                                                         11/2/2006  Section revised to       Approval.
                                                                     include clarifying
                                                                     language and to
                                                                     specify permitting
                                                                     applicability tests
                                                                     for permit actions in
                                                                     nonattainment areas.
----------------------------------------------------------------------------------------------------------------

                                            Compliance Certifications
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Compliance               4/11/2002  Section revised to       Approval.
                                 Certifications.                     update the section
                                                                     title and section
                                                                     references formatting.
----------------------------------------------------------------------------------------------------------------
                                                   Enforcement
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Enforcement.......       4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                                Permit Revisions
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  Permit Revisions..       5/29/1998  Section added to the     Approval.
                                                                     Part and permit
                                                                     revisions previously
                                                                     contained in Section
                                                                     202 were moved to this
                                                                     Section and revised to
                                                                     include three separate
                                                                     tiers of permit
                                                                     revisions.
                                                         4/11/2002  Section updated to       Approval.
                                                                     revise references to
                                                                     other provisions in
                                                                     the Part that were
                                                                     changes as a result of
                                                                     simultaneous updates;
                                                                     Section revised to
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
                                                         4/25/2005  Section updated to       Approval.
                                                                     include two additional
                                                                     permit actions that
                                                                     would qualify as
                                                                     Technical permit
                                                                     revisions instead of
                                                                     Significant revisions.
----------------------------------------------------------------------------------------------------------------
                                                 General Permits
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS> NMAC..............  General Permits...       5/29/1998  Section added to the     Approval.
                                                                     Part to include
                                                                     provisions related to
                                                                     the state adopted
                                                                     General Permits
                                                                     preconstruction
                                                                     program \a\.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                                   Definitions
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>0 NMAC..............  Definitions.......       11/6/1998  Section was revised to   Approval.
                                                                     correct a
                                                                     typographical error
                                                                     that was adopted by
                                                                     the state in a
                                                                     previous revision of
                                                                     the Section.
                                                         4/11/2002  Section revised to       Approval.
                                                                     update the section
                                                                     title and section
                                                                     references formatting.
----------------------------------------------------------------------------------------------------------------
                                                  Applicability
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>1 NMAC..............  Applicability.....       4/11/2002  Section updated to       Approval.
                                                                     revise references to
                                                                     other provisions in
                                                                     the Part that were
                                                                     changes as a result of
                                                                     simultaneous updates;
                                                                     Section revised to
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                            Contents of Applications
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>2 NMAC..............  Contents of              4/11/2002  Section revised to       Approval.
                                 Applications.                       include clarifying
                                                                     language regarding the
                                                                     permit application
                                                                     requirements for
                                                                     applicant's seeking a
                                                                     streamlined
                                                                     construction permit;
                                                                     Section revised to
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                         Public Notice and Participation
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>3 NMAC..............  Public Notice and        4/11/2002  Section revised to       Approval.
                                 Participation.                      update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                                Permit Decisions
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>4 NMAC..............  Permit Decisions..       4/11/2002  Section revised to       Approval.
                                                                     include clarifying
                                                                     language regarding the
                                                                     review of a permit
                                                                     application for
                                                                     ``administrative
                                                                     completeness'';
                                                                     Section revised to
                                                                     update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                              General Requirements
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>5 NMAC..............  General                  4/11/2002  Section revised to       Approval.
                                 Requirements.                       update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------

                                            Source Class Requirements
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>6 NMAC..............  Source Class             4/11/2002  Section revised to       Approval.
                                 Requirements.                       update the section
                                                                     title, section
                                                                     references, and list
                                                                     numbering formatting.
----------------------------------------------------------------------------------------------------------------
                                   Table 1--Significant Ambient Concentrations
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>0 NMAC..............  Table 1--                4/11/2002  Section revised to       Approval.
                                 Significant                         update the section
                                 Ambient                             title formatting.
                                 Concentrations.
----------------------------------------------------------------------------------------------------------------
                              Table 2--Permit Streamlining Source Class Categories
----------------------------------------------------------------------------------------------------------------
<IP_ADDRESS>1 NMAC..............  Table 2--Permit          4/11/2002  Section revised to       Approval.
                                 Streamlining                        update the section
                                 Source Class                        title formatting.
                                 Categories.
----------------------------------------------------------------------------------------------------------------
\a\ <IP_ADDRESS>(A)(2)(c)(i) NMAC references the requirements found in 20.2.77 NMAC, 20.2.78 NMAC, and 20.2.82
  NMAC (hereafter collectively referred to as Parts 77, 78, and 82), which are regulations separate from the
  preconstruction permitting rules governed by 20.2.72 NMAC. The regulations included in Parts 77, 78, and 82
  are subject to statutory and regulatory evaluation beyond the statutory scope of this rulemaking. This action
  is limited to determining whether the revisions to the Part 72--Construction Permit provisions contained in
  the New Mexico SIP comply with the Federal Clean Air Act and EPA regulations and are consistent with EPA
  policies. Therefore, we are approving the reference to these regulations as part of the General Permits
  provisions being approved into Part 72 of the New Mexico SIP so as to include the requirement that general
  construction permits contain adequate permit conditions to ensure compliance with the requirements contained
  in Parts 77, 78, and 82, but we are not evaluating or approving into the SIP the underlying and related
  regulations for these Parts through this rulemaking.

III. EPA's Evaluation

    The current New Mexico SIP includes EPA-approved Part 72 provisions
(see 62 FR 50514, September 26, 1997), which are related to New
Mexico's MNSR construction permit program and preconstruction
permitting requirements potentially applicable to other programs under
the New Mexico Administrative Code. Since the September 26, 1997 EPA
approval, New Mexico has submitted revisions to Part 72 provisions to
EPA for review and action on the following dates: May 29, 1998,
November 6, 1998, April 11, 2002, April 25, 2005, and November 2, 2006.
The following sections of this proposed action and the accompanying TSD
analyze the proposed revisions to the Construction Permits regulation
found in Part 72 to preliminarily determine whether the submitted
revisions and the Secretary's Letter dated November 7, 2012 as a whole
support the CAA, EPA policy, and guidance for NSR permitting.

A. What are the requirements for EPA's evaluation of a preconstruction
permitting program SIP submittal?

    The State of New Mexico submitted revisions to its NSR SIP on May
29, 1998, November 6, 1998, April 11, 2002, April 25, 2005, and
November 2, 2006, incorporating changes to the Construction Permits
regulation contained in 20.2.72 NMAC for approval by EPA as revisions
to the New Mexico NSR SIP. These SIP revisions were submitted pursuant
to the applicable requirements of section 110(a)(2) of the CAA. For
example, the federal requirements at Section 110(a)(2)(A) direct each
SIP to include enforceable emission limitations necessary or
appropriate to meet the CAA's applicable requirements. Section
110(a)(2)(C) requires each SIP to include a program to provide for the
enforcement of the measures described in 110(a)(2)(A), and regulation
of the modification and construction of any stationary source within
attainment/unclassifiable areas and nonattainment areas. EPA
regulations further 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; and part 51, Appendix S.
    In addition to the applicable preconstruction permitting program
related requirements of section 110(a)(2), EPA's evaluation must
consider section 110(l) of the CAA. Section 110(l) of the CAA states
that EPA shall not approve a revision of the SIP if it would interfere
with any applicable requirement concerning attainment and reasonable
further progress or any other applicable requirement of the Act. Thus,
under CAA section 110(l), the proposed NSR SIP revision submittals must
not interfere with attainment, reasonable further progress, or any
other applicable requirement of the Act. The provisions contained in
Part 72 are applicable to all ``regulated air pollutants,'' which
includes all pollutants for which there are NAAQS. Therefore, as part
of the 110(l) analysis, we have evaluated the proposed NSR SIP revision
submittals for their impacts on attainment and reasonable further
progress for all NAAQS pollutants. The entire state of New Mexico is
designated attainment for all pollutants, with the exception of
PM10 and 1-hour ozone. The only area designated
nonattainment for PM10 in New Mexico is Anthony, which is
located in Dona Ana County, and the only area designated nonattainment
for the 1-hour ozone NAAQS is Sunland Park, which is also located in
Dona Ana County.\5\
---------------------------------------------------------------------------

    \5\ The Sunland Park area has unique considerations for ozone
planning due to airshed contributions from Mexico and Texas. Air
quality within the Paso del Norte Airshed has improved over the last
10 years due to cooperative efforts between the State of Texas, the
State of New Mexico, and Mexico through organizations such as the
Paso Del Norte Joint Advisory Committee (JAC). Although the area has
continued to monitor attainment of the 1-hour ozone standard the
State chose not to submit a request for redesignation before EPA
revoked the 1-hour ozone NAAQS. Monitors in Sunland Park continue to
reflect attainment of the 1-hour ozone NAAQS. The State, however,
did not submit a request for redesignation of the area to attainment
for the 1-hour ozone standard and a section 175A maintenance plan.
Because the area was never redesignated to attainment, the area must
continue to meet the 1-hour ozone marginal area applicable
requirements (see 40 CFR 51.905(a)(3)). Sunland Park has met the
revoked 1-hour ozone standard since 1998. (See 76 FR 28181).
---------------------------------------------------------------------------

    In EPA's technical review of New Mexico's submitted SIP revisions,
as further discussed in Section III.B of this preamble, and the TSD, we
evaluate each revision against the applicable federal requirements and
regulations.

B. Technical Review of New Mexico's SIP Revision Submittals

    The provisions found in Part 72 are divided into five subparts.
Four of the five subparts contain provisions that are currently
approved into the New Mexico SIP, with Subpart IV (<IP_ADDRESS>0 NMAC--
<IP_ADDRESS>9 NMAC), which relates to Permits for Toxic Air Pollutant
Emission, being outside of the scope of the New Mexico SIP.\6\ The
remaining four SIP-approved subparts are as follows: Subpart I
(<IP_ADDRESS> NMAC--<IP_ADDRESS> NMAC)--General Provisions, Subpart II
(<IP_ADDRESS> NMAC--<IP_ADDRESS>9 NMAC)--Permit Processing and
Requirements, Subpart III (<IP_ADDRESS>0 NMAC--<IP_ADDRESS>9 NMAC)--Source
Class Permit Streamlining, and Subpart V--Appendix. As part of the five
SIP revision submittals under review in the action, changes were made
to the provisions contained in each of the four SIP-approved subparts.
As detailed in the TSD, the May 29, 1998, November 6, 1998, April 11,
2002, April 25, 2005, and November 2, 2006 SIP submittals meet the
completeness criteria established in 40 CFR 51, Appendix V. In addition
to the completeness review, the revisions contained in the five SIP
submittals were evaluated against the applicable requirements contained
in the Act and 40 CFR 51. A Section-by-Section review showing each
proposed change made to Part 72 is included in the TSD for this
proposed action, which also includes a summary of the revisions made to
each specific section of Part 72. The following sections of this
preamble provide a summary of the reasoning comprising our evaluation
used in this rulemaking, specifically for those proposed revisions that
include substantive changes to Part 72.
---------------------------------------------------------------------------

    \6\ Subparts I, II, III, and V were approved by EPA on September
26, 1997 (62 FR 50518), effective November 25, 1997.
---------------------------------------------------------------------------

1. Submitted Revisions to Section 203--Contents of Permit Applications
    40 CFR 51.160 contains federal requirements regarding information
an owner or operator of a new or modified source must submit to the
State or local agency. The current SIP-approved Part 72 contains
requirements regarding contents of a permit application that any person
seeking a permit under <IP_ADDRESS>(A) NMAC must file with the
Department. New Mexico has proposed several revisions to the required
contents of permit applications as specified in Section 203 in the May
29, 1998 and April 11, 2002 SIP revision submittals. In addition to
formatting, clarification, and other non-substantive changes detailed
in the TSD, these revisions include substantive changes that add to
existing SIP-approved requirements. These changes include the addition
of provisions related to the changing, supplementing, or correcting a
previously submitted permit application. The revisions also include the
provision of additional requirements tied to the existing Public
Service Announcement requirements for permit applicants. Because the
revisions to the current SIP-approved Section 203 include additional
requirements for permit applicants with respect to the contents of
permit applications that were not present in the current SIP, we
propose to approve these revisions into the New Mexico SIP as meeting
applicable federal requirements, including 40 CFR 51.160.
2. Submitted Revisions to Section 207--Permit Decisions and Appeals
    Section 207 of the currently approved SIP includes procedural
requirements regarding permit and permit revision issuance by the
Department, and petition for hearing and appeal procedural requirements
for applicants adversely affected by a permit decision by the
Department. The May 29, 1998 and April 11, 2002 SIP revisions include
clarifying language, formatting changes, and other non-substantive
changes to Section 207, which are further detailed in the TSD. The May
29, 1998 SIP revision also added language to change the applicability
of Section 207's requirements regarding the Department's completeness
determination and time frame within which the Department must take
action on a permit application to Significant permit revisions, rather
than all permit revisions. This change reflects the tiered permit
revision approach adopted by New Mexico under the newly added Section
219, and that approach is further discussed in Subsection III.B.6 of
this preamble.
    The submitted Section 207 requirements, in part, specify numbers of
days within which the Department shall either grant, grant subject to
conditions, or deny a permit or permit revision after the Department
deems a permit application administratively complete. For permit
applications that are subject to the PSD requirements of Part 74, the
April 11, 2002 SIP revision reduced the time for the Department's
action from 240 days to 180 days.\7\ Section 165(c) of the CAA requires
that any completed PSD permit application shall be granted or denied no
later than one year after the date of filing of such completed
application. The reduction of time for the Department's action on a PSD
permit application from 240 days to 180 days thus still complies with
federal requirements to act on such a permit within one year after the
date of filing of a completed application.
---------------------------------------------------------------------------

    \7\ We are only reviewing and proposing action on the revisions
to Part 72 in this action. The underlying regulations and program in
Part 74 were not included, and are substantively not required to be
evaluated, in the SIP revisions EPA is evaluating in this
rulemaking.
---------------------------------------------------------------------------

    The April 11, 2002 SIP revision reduced the number of days within
which the Department must take action upon a preconstruction permit
application that is not subject to the PSD requirements of Part 74 from
180 days to 90 days. This reduction applies to both Part 79 NNSR and
Part 72 MNSR permits. NMED has been implementing this reduction in time
for review of NNSR permit applications for over 10 years. NMED has
issued zero (0) new NNSR permits between 1995 and 2012.\8\ Similarly,
NMED has been implementing this reduction in time for the Department's
review of Minor NSR permits for over 10 years. NMED has issued
approximately 673 new MNSR permits between 1995 and 2012.\9\ As
previously discussed, the entire state of New Mexico is designated
attainment for all pollutants, with the exception of PM10
and 1-hour ozone. The only area designated nonattainment for
PM10 in New Mexico is Anthony, which is located in Dona Ana
County, and the only area designated nonattainment for the 1-hour ozone
NAAQS is Sunland Park, which is also located in Dona Ana County. We
propose to find the reduction of time for the Department's review of
NNSR and Minor NSR permit applications has therefore not interfered
with attainment, reasonable further progress, or any other applicable
requirement of the Act.
---------------------------------------------------------------------------

    \8\ Historical NNSR permit issuance data was provided via
electronic email dated November 7, 2012, from Ted Schooley, NMED, to
Ashley Mohr, EPA, Region 6.
    \9\ Historical new MNSR permit issuance data was provided via
electronic mail dated November 2, 2012, from Kerwin Singleton, NMED,
to Ashley Mohr, EPA, Region 6.
---------------------------------------------------------------------------

    Section 207 of the current SIP also specifies the Department shall
hold a hearing within 90 days upon receipt of a timely petition for
hearing by a person who participated in a permitting action before the
Department and is adversely affected by such permitting action. The
April 11, 2002 SIP revision changed the number of days by which the
Department must hold a hearing from 90 days to 60 days. Because this
change expedites the time frame within which the Department must hold a
hearing upon receipt of a petition by a person

adversely impacted by a permitting action, this change is one that
makes the current SIP more stringent. We propose to find the revisions
to Section 207 comply with applicable federal requirements, including
section 110(l) of the Act.
3. Submitted Revisions to Section 216--New Applicability Conditions and
Requirements for Sources Located in Nonattainment Areas
    The current SIP-approved Part 72 contains potentially applicable
requirements for sources located in Nonattainment areas within the
Section 216 provisions. New Mexico proposed non-substantive changes to
Section 216 in the April 11, 2002 SIP revision submittal that include
updates to formatting within the rule provisions to be consistent with
formatting updates that were made throughout Part 72 and the NMAC. New
Mexico also proposed changes to this section of Part 72 as part of the
November 2, 2006 SIP revision submittal. These changes to Section 216
include the non-substantive changes to the rule language in Paragraphs
(A)(1), (A)(2), and (B) to clarify that the requirements of this
section are potentially applicable to both new sources and
modifications of an existing source. This change does not change the
applicability test or requirements of Section 216. The April 11, 2002
SIP revision also contained proposed changes to add Paragraphs (A)(3)
and (C) to Section 216. The addition of these two sections add a
requirement for specific stationary sources (i.e., landfills and
grandfathered sources) that were not previously required to obtain a
preconstruction NSR permit to submit an application for a permit under
Part 72, including submittal of a modeling analysis to demonstrate
compliance with the NAAQS. The April 11, 2002 revisions also
incorporate a requirement that if those newly permitted sources could
not show compliance with the NAAQS, the source would be required to
make changes to the facility that would result in an overall net air
quality benefit. These proposed revisions to Section 216 result in a
more stringent SIP than currently approved. Therefore, we propose to
approve these revisions to Section 216 into the SIP by the
determination that they will not affect the ability of the Section, or
Part 72 overall, to meet the federal requirements for SIP-approved
permitting plans.
4. Submittal of New Section 220--Minor NSR General Permits
    The current SIP-approved provisions of part 72 contain provisions
for a Source Class Permit Streamlining program but issuance of such a
permit required prior EPA approval. New Mexico adopted the new Section
220, which contains the general preconstruction permitting program, and
submitted this addition in the May 29, 1998 SIP submittal.\10\ In New
Mexico's proposed general permitting program, the underlying provisions
related to the general permitting program are adopted into the state's
regulations and are submitted for approval into the New Mexico SIP by
EPA. As a result, if Section 220 is approved by EPA into the SIP, the
general permits that are developed and issued by the NMED in accordance
with the procedures and requirements of Section 220 automatically
become part of the SIP, and therefore, are federally enforceable on the
basis that they meet the SIP-approved requirements of the general
construction permits program in Section 220.
---------------------------------------------------------------------------

    \10\ The proposed general construction permitting program is
similar to the Source Class Permit Streamlining program contained in
<IP_ADDRESS>0--<IP_ADDRESS>9 NMAC of the current New Mexico SIP. The key
difference is that under the current SIP-approved Source Class
Permit Streamlining program, each source class permit must be
approved by EPA into the SIP; whereas, under the proposed Section
220 general construction permitting program, the underlying
provisions for the permitting program are SIP approved and the
individual general permits undergo public participation process
similar to that required for a case-by-case NSR permit.
---------------------------------------------------------------------------

    Paragraph A of Section 220 includes the requirements related to the
procedures to develop and issue a general permit. As required in
<IP_ADDRESS>(A)(1) NMAC, a general construction permit developed by NMED
must cover numerous similar sources. Sources allowed to register for
coverage under a general permit must be homogenous in terms of
operations, processes and emissions, subject to the same or
substantially similar requirements, and not subject to case-by-case
standards or requirements. These requirements satisfy the Federal
requirement 40 CFR 51.160(a) that the SIP has legally enforceable
procedures that enable the NMED to determine whether construction or
modification will result in a violation of a control strategy or
interfere with attainment or maintenance of a national standard in New
Mexico or a surrounding state. Section <IP_ADDRESS>(A)(2) NMAC requires
each general permit to describe which sources may qualify to register
under the general permit, which satisfies the requirement of 40 CFR
160(e) which provides that the SIP must identify the types and sizes of
facilities that will be subject to review. NMED has indicated in the
SIP submittal that the permits developed and issued under the general
construction permitting program are for Minor NSR sources.\11\ 40 CFR
51.160 requires that the Minor NSR SIP revision submittal be
enforceable. In particular, 40 CFR 51.160(a) requires that the SIP
revision be enforceable in order to ensure that the issuance of the
Minor NSR permit will not cause or contribute to a violation of any SIP
control strategy and will not interfere with attainment and maintenance
of the NAAQS. The September 23, 1987, Memorandum from J. Craig Potter,
Assistant Administrator for Air and Radiation, and Thomas L. Adams Jr.,
Assistant Administrator for Enforcement and Compliance Monitoring,
entitled ``Review of State Implementation Plans and Revisions for
Enforceability and Legal Sufficiency'' provides EPA's guidance for
assessing whether a SIP revision submittal is sufficiently enforceable.
We find that the new general construction permitting program meets the
requirements of section 40 CFR 51.160(a), which requires that SIP
revision submittals be enforceable. The submitted regulation
specifically requires that a general permit include monitoring, record
keeping and reporting (MRR) requirements appropriate to the source and
sufficient to ensure compliance with the general construction permit.
At a minimum, the general permit shall specify where the records shall
be maintained, how long the records shall be retained and that all
records or reports shall be made available upon request by the
Department. The general permit also must contain sufficient terms and
conditions to ensure that all sources operating under a general permit
will meet all applicable requirements under the Federal Clean Air Act,
e.g., NSPS, NESHAPS, and MACT, and all requirements of the SIP. Such a
general permit is not allowed to cause or contribute to air contaminant
levels in excess of any National or New Mexico Ambient Air Quality
Standard. For these reasons, EPA finds that the submitted general
construction permitting program will ensure attainment and maintenance
of the NAAQS and will prevent violations of any of the New Mexico SIP's
control strategies. Under this submitted new permitting program, the
State is able to determine if there will be an adverse impact on air
quality.
---------------------------------------------------------------------------

    \11\ Pages 77 and 78 of hearing transcripts for October 17, 1997
Environmental Improvement Board Public Hearing.
---------------------------------------------------------------------------

    EPA has recognized, for certain classes of sources, that it is
appropriate for states to establish enforceable

emission limits that serve to limit potential to emit through
exclusionary rules that apply to certain source categories. See,
Memorandum from D. Kent Berry, Acting Director, Air Quality Management
Division, Office of Air Quality Planning and Standards (OAQPS) entitled
``Guidance for State Rules for Optional Federally-Enforceable Emissions
Limits Based on Volatile Organic Compound Use,'' dated October 15,
1993; See also, Memorandum from John Seitz, Director, OAQPS entitled
``Approaches to Creating Federally-Enforceable Emission Limits,'' dated
November 3, 1993. EPA also issued a guidance memorandum that provides
guidance for addressing the minor source status under the Act for
lower-emitting sources in eight source categories. See, April 14, 1998,
Memorandum entitled, ``Potential to Emit (PTE) Guidance for Specific
Source Categories'' (hereinafter the 1998 memoranda). It provides
technical information useful in devising practicable enforceable
potential to emit for small sources and identifies sources that are
``true minors.'' Although not an exclusionary rule, the practicable
enforceability criteria in the guidance memoranda serve as a way to
measure whether the submitted general construction permitting program
is practicably enforceable and therefore can ensure that issuance of
the Minor general NSR permit will not cause or contribute to a
violation of any SIP control strategy and will not interfere with
attainment and maintenance of the NAAQS. The submitted program clearly
identifies the category of sources that qualify for coverage. The
submitted program provides that a source notify the State of its
coverage under the program by submitting a complete application to
register. The NMED shall grant registration to a source only if it
submits a complete application and meets the terms and conditions of
the general permit. The NMED may grant or deny an application.
    Based on the requirements contained in Section 220 and further
clarification provided by NMED, a general permit could not be developed
for use by a Major NSR source.\12\ The state's implementation of the
general permitting program since the state adopted the Section 220
provisions is consistent with the fact that the general permitting
program is for Minor NSR sources only. Each of the general construction
permits that New Mexico has issued in accordance with Section 220
includes facility-wide annual emission limits that are less than PSD
permitting thresholds. In addition, Paragraph A of Section 220 includes
provisions that specify what requirements must be met for a general
permit to be issued under Section 220, including requirements that the
permit contain sufficient terms and conditions, along with sufficient
monitoring, record keeping, and reporting requirements, to assure that
sources authorized via the general construction permit will meet all
applicable requirements under the Act, including PSD and NNSR. Since
these major NSR permitting programs require source-specific evaluations
as part of the permitting process, a general permit could not be
developed to authorize a major NSR source. The general permitting
program was adopted as a Minor NSR preconstruction permitting program,
and NMED's historical implementation since adoption of Section 220 is
consistent with its intended applicability to Minor NSR sources only.
---------------------------------------------------------------------------

    \12\ Clarification of Intent for Section 220 of 20.2.72 NMAC--
Construction Permits letter dated September 19, 2012 from Richard L.
Goodyear, PE, Bureau Chief, NMED to Mr. Thomas Diggs, Associate
Director for Air Programs, EPA, Region 6.
---------------------------------------------------------------------------

    The provisions contained in Paragraph A of Section 220 also address
public notice requirements for issued general permits.
<IP_ADDRESS>(A)(1) NMAC requires that prior to issuance, each general
construction permit must undergo the same public notice as that
required for case-by-case permits in Section 206. Section 206 public
notice requirements are discussed in more detail in Section III.B.5 of
this preamble. Paragraph B of Section 220 contains procedural
requirements that must be met if NMED wishes to modify an existing
general construction permit. These modifications are required to
undergo an additional public notice and must include a transition
schedule that addresses how and when sources that are registered under
the existing general construction permit will be transitioned to the
requirements contained in the modified general construction permit.
    Together with Paragraph A, we propose to find the provisions of
Paragraph B contain requirements that satisfy the requirements
contained in 40 CFR 51.160, 51.161, 51.163 related to a permitting
program having legally enforceable procedures, making information
publicly available, and having administrative procedures in place to
operate the program consistent with the previous requirements. The
addition of Section 220 also does not interfere with the Part 72
construction permits program ability to meet requirements in 40 CFR
51.162 and 51.164 that are applicable to Minor NSR programs, since the
addition does not impact the identification of the responsible agency
or the stack height procedures.
    Because the revisions to incorporate the general permitting program
under Section 220 would add an alternative Minor NSR permitting
approach to the preconstruction permitting program, these proposed
revisions must also be evaluated to determine if they will interfere
with attainment or reasonable further progress or any other applicable
requirement of the Act. This evaluation is included in the following
section of this preamble.
a. 110(l) Analysis for Section 220
    The provisions in Section 220 establish a general preconstruction
permitting program that allows NMED to develop and issue general
permits. Minor NSR sources may seek authorization under these general
permits in lieu of case-by-case preconstruction permits if they meet
the requirements of the general permitting program and the specific
requirements of the general construction permit, itself. As required by
the provisions of Section 220, a general construction permit issued
under Section 220 must contain terms and conditions that assure that
sources authorized via the general construction permit will meet all
applicable requirements under the federal act (e.g., PSD, NSPS, NESHAP)
and will not cause or contribute to an exceedance of the NAAQS.\13\ As
stated in the May 29, 1998 SIP submittal supporting documentation, a
general construction permit will contain more conservative permit
conditions and more stringent requirements since the general permit has
to be protective of all applicable state and federal requirements for
each source that may seek authorization via the general construction
permit. Therefore, the general construction permits developed and
issued by NMED are likely to contain more stringent permit conditions
for a given source than would be included in a case-by-case permit
issued for that same source.
---------------------------------------------------------------------------

    \13\ <IP_ADDRESS>(A)(2)(c)(1) NMAC.
---------------------------------------------------------------------------

    Section 220 also identifies procedures for existing general
construction permits to be modified by NMED. This modification
procedure allows NMED to update the general permit conditions if they
determine that more stringent conditions are necessary or to account
for new state or federal requirements. Under the general
preconstruction permitting program established in Section 220, each
source registration under a general permit requires review and approval
by NMED prior to

construction, as well as, a separate public notice of each source
registration. The public notice provisions require the source to notify
the public that the source is seeking authorization under a general
construction permit. NMED has been utilizing the general
preconstruction permitting program based on the provisions in Section
220 since the state adoption of those provisions in 1998 without any
indication that the implementation of this Minor NSR program has
interfered with attainment or reasonable further progress.
    Based on the reasons discussed above, we do not believe that the
addition of the general preconstruction permitting provisions contained
in Section 220 will interfere with attainment or reasonable further
progress or any other applicable requirement of the Act. Our evaluation
of the SIP revision submittals related to Section 220, which are under
review in this action, demonstrates compliance with section 110(l) of
the CAA and provides further basis for proposed approval of this SIP
revision.
5. Submitted Revisions to Section 206--Public Notice and Participation
for Minor NSR
    Prior to the revisions contained in the April 11, 2002 SIP
submittal, NMED under existing SIP-approved Section 206 was required to
publish in a newspaper of general circulation in the area closest to
the location of the source public notice of the permit application
submitted under part 72 and the Department's preliminary determination
for a single 45-day comment period. The proposed revisions to Section
206 revise the public notice procedures so that it becomes a two-step
process, whereas the current SIP public notice procedure is a one-step
process. Under the submitted Section 206 revised provisions, NMED
publishes in a newspaper of general circulation in the area closest to
the location of the source public notice of the permit application. The
public would then have 30 days to express written interest in the
permit application, whereas under the current SIP-approved provisions
the public has 45 days to comment on the permit application and the
Department's preliminary determination.
    If NMED does not receive any written expressions of interest from
the public on the permit application during the 30-day public notice of
the permit application, the Department will take action to issue or
deny the permit. However, if any person expresses interest in writing
in the permit application during the 30-day public notice period, NMED
shall notify these interested persons of the date and location that the
Department's Analysis was or will be available. These interested people
and any other member of the public then have 30 days to submit written
comments on the Department's Analysis. The NMED cannot issue the permit
until at least 30 days after the Department's Analysis is available for
review. As clarified in the Secretary's November 7, 2012 letter, the
second 30-day period is triggered for members of the public to submit
written comments on the Department's Analysis, when the State posts
notice of the availability of the Analysis onto its Web site.\14\
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    \14\ Public Notice for Minor Source New Source Review letter
dated November 7, 2012, from Dave Martin, Cabinet Secretary, NMED,
to Mr. Ron Curry, Regional Administrator, EPA, Region 6.
---------------------------------------------------------------------------

    Additionally, New Mexico has submitted a SIP revision to the
language within <IP_ADDRESS>(A)(7) NMAC requiring public notices to be
sent to the Region 6 EPA office, adding language directing public
notices be sent if requested by EPA. 40 CFR 51.161(d) requires that a
state send a copy of all public notices to EPA via the Regional Office,
without qualifying whether a request by EPA is necessary. To ensure
that all public notices are received by EPA pursuant to 40 CFR
51.161(d), Region 6 has formally requested copies of each public notice
be provided to EPA.\15\ Therefore, NMED will provide a copy of all
public notices for construction permits to EPA, and we propose to
approve <IP_ADDRESS>(A)(7) NMAC as consistent with the federal
requirement in 40.CFR 51.161(d).
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    \15\ Copies of public notices were requested via letter from Mr.
Thomas Diggs, Associate Director for Air Programs, EPA, Region 6 to
Mr. Richard Goodyear, PE, Bureau Chief, NMED on September 7, 2012.
NMED responded to EPA's request via letter dated September 13, 2012
from Mr. Goodyear, NMED, to Mr. Diggs, EPA, and agreed to provide
copies of the notices to EPA. Copies of these letters and all others
referenced in this proposal are in the docket for this rulemaking.
---------------------------------------------------------------------------

a. 110(l) Analysis for Section 206
    As noted, the proposed revisions to Section 206 do result in a
reduction in the length of the public notice period from 45 days to 30
days. This public notice period, while reduced from the current SIP-
approved requirements, is equivalent to the federal public
participation minimum public comment period requirements, which
requires a 30-day period for submittal of public comment. The proposed
revisions also require a person to comment in writing on the permit
application before any member of the public can comment on the
Department's Analysis. We believe that this is a minimal burden placed
on the public to express written interest on the permit application in
order to have the opportunity to comment on the Department's Analysis.
This additional requirement does not undermine federal public
participation requirements. Also, the change from 45 days to 30 days
for public review and comment, while a reduction, also meets federal
public participation minimum public comment period requirements.
Therefore, we propose to approve these revisions into the SIP by
determining that they will not interfere with the ability of the New
Mexico SIP to meet the applicable federal public participation
requirements, nor will they violate the requirements of CAA section
110(l).
6. Submittal of New Section 219--Permit Revisions for Minor NSR
    The current SIP-approved Permit Revisions provisions under Section
202 include general requirements for sources seeking permit revisions
to submit a revision request to NMED, which was to include a
description of the proposed changes and the reasons for those changes.
The current SIP requires that permit revisions with associated
increases in permitted emission limits are processed in accordance with
public notice, review, and hearing procedures contained in Sections 206
and 207 of Part 72. As part of the submitted May 29, 1998 SIP
revisions, the Permit Revisions provisions were moved to Section 219
and were revised to include three different tiers of revisions:
Administrative, Technical, and Significant. These Permit Revisions
provisions were subsequently revised and submitted in the April 11,
2002 and April 25, 2005 SIP submittals. The tiered permit revision
process established in the May 29, 1998 SIP revision submittal was
developed by New Mexico through a permitting Task Force that consisted
of NMED staff and members of the public, including representatives from
industry and environmental groups. The Task Force identified types of
Minor NSR permit revisions that should qualify for streamlined
permitting based on their anticipated negligible or insignificant
environmental impacts and established the proposed tiered permit
revisions process for Minor NSR permit revisions.
    The public participation requirements for each of the three new
types of permit revisions were also changed in the May 29, 1998 SIP
revision submittal. The associated public notice requirements are one
of the main differences between the separate tiers of permit revisions
included in Section 219. The Federal requirements for Minor NSR permit

applications and public notice requirements are at 40 CFR 51.160 and
161. These requirements establish the minimum requirements for
approvability of a state's Minor NSR SIP, which a state develops to
prevent construction and modification of stationary sources from
interfering with an area's ability to achieve compliance with a NAAQS.
    These requirements generally require 30-day public review for all
sources subject to the Minor NSR; however, these requirements also
allow a State to identify the types and sizes of facilities, buildings,
structures, or installations, which will require full preconstruction
review by justifying the basis for the State's determination of the
proper scope of its program.\16\ Importantly, our decision to approve a
State's scope of its Minor NSR program must consider the individual air
quality concerns of each jurisdiction, and therefore will vary from
state to state.
---------------------------------------------------------------------------

    \16\ For example, under the federal Tribal NSR regulations, EPA
did not require permits for sources with emissions below ``de
minimis'' levels, and for sources in ``insignificant source
categories''. 76 FR at 38755. In sum, under these Tribal NSR
regulations, some sources are not required to obtain permits, and
have no public notice requirements.
---------------------------------------------------------------------------

    New Mexico's submitted rules create tiered, public notice
requirements for the three types of permit revisions. New Mexico
justified its approach for permit revision applications using de
minimis principles like those established in Alabama Power.\17\ A
Significant permit revision will have the same public notice
requirements as an application for a new minor source. The submitted
New Mexico rules generally provide that all new Minor NSR permit
applications and all Minor NSR Significant permit revision applications
will go through public notice consistent with federal requirements at
40 CFR 51.160 and 51.161. Under the submitted rules, Administrative
permit revisions do not have any associated public notice requirements.
Meanwhile, the submitted Technical permit revisions require that the
applicant conduct a reduced public notice, as compared with the full
notice required for new Minor NSR permits and Significant permit
revisions. EPA recognizes a State's ability to tailor the scope of its
Minor NSR program as necessary to achieve and maintain the NAAQS. As
documented in the State's SIP revision submittal and subsequent
submission of supporting information, New Mexico justified the scope of
its regulatory program, and thus the permit applications for which full
public review is necessary, using de minimis principles like those
established in Alabama Power to identify permit revisions that are not
environmentally significant.
---------------------------------------------------------------------------

    \17\ See Ala. Power Co. v. Costle, 636 F.2d 323 (DCCir. 1979).
---------------------------------------------------------------------------

    EPA's evaluation of the environmental significance of each permit
revision tier and its associated public participation requirements are
discussed in the following subsections and the TSD. The following
subsections and TSD also discuss the State's analysis and supporting
documentation regarding how the permitting actions qualifying as
Administrative and Technical permit revisions were chosen and why the
Department finds that these permit actions qualify for a more
streamlined permitting process because of their environmental
insignificance.
a. Administrative Permit Revisions
    NMED established Administrative permit revisions that are limited
to those actions that are listed below that do not have any associated
increases in permitted emissions, and a permittee may obtain such a
revision for an existing source without undergoing preconstruction
permitting requirements under Part 72. Administrative permit revisions
do not have applicable filing or permit fees under Part 75 and are also
not subject to the public notice requirements contained in either
Section 203 or Section 206. Administrative permit revisions are limited
to the following permit actions that are considered to be
administrative changes:
     Correction of typographical errors,
     Change in administrative information (e.g., change in
owner, facility address, or contact phone number),
     Incorporation of the retirement of permitted source or the
closing of a facility,
     Incorporation of the deletion of a proposed source(s) that
was not constructed or will not be built, or
     Incorporation of Section 202 Paragraph B exempted
sources.\18\
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    \18\ The incorporation of the Paragraph B exempted sources into
an existing permit is an administrative action and does not change
the exempt status of these sources. These Section 202 Paragraph B
exempt sources remain exempt from Minor NSR permitting requirements
and their incorporation into an existing permit does not result in
an increase in permitted emission rates or change a term or
condition of the existing permit.
---------------------------------------------------------------------------

    Because these permit revisions do not have any associated increases
in permitted emissions, they would not be required to undergo the
preconstruction permitting requirements under Part 72 to receive a
permit revision. Under the new submitted SIP rule, Administrative
permit revisions now require a certified written notification of the
revision be submitted by the applicant to NMED. Administrative
revisions become effective upon receipt of the notification by NMED.
NMED is not required to reissue the permit to incorporate an
Administrative permit revision. The revised SIP rule is more stringent
than the current SIP with respect to requiring certified written
notification of the Administrative revision to be submitted by the
applicant to NMED.
    Under the proposed SIP revisions, Administrative permit revisions
are exempt from all Minor NSR public participation requirements under
Part 72. As documented in the SIP revision submittals, the permit
revisions allowed under the Administrative revision provisions are
limited to those permit changes that are administrative in nature and
do not result in a change to any permit term or condition and do not
have any associated increases in permitted emission rates. Therefore,
the Administrative permit revisions are truly de minimis in nature, and
we propose to find that New Mexico provided an adequate demonstration
and justification to show that their proposed Administrative permit
revisions provisions meet 40 CFR 51.160(e) and 161.
b. Technical Permit Revisions
    NMED also established Technical permit revisions in the proposed
SIP revisions that include the following changes to a permit:
     Incorporate changes to monitoring, recordkeeping, or
reporting requirements that do not reduce the enforceability of the
permit,
     Incorporate the addition of permit conditions on sources
that existed on August 31, 1972, and have been operated regularly
since,
     Like kind replacement of permitted equipment that meets
the specific requirements listed in <IP_ADDRESS>(B)(1)(d) NMAC,
     Incorporate terms and conditions in the permit for the
purpose of reducing the potential emission rate of a unit or source
(e.g., cap on hours or throughputs),
     Incorporate addition of new equipment with potential
emission rate no more than 1 pound per hour (4.38 tons per year,
assuming continuous operation for 8,760 hours per year) for any NAAQS
pollutant or any VOC,
     Revision of permitted emission limit based on initial
compliance testing results that meets the specific requirements listed
in <IP_ADDRESS>(B)(1)(e) NMAC, and
     Incorporate the addition of, or substitution of, a
different type of air

pollution control equipment with an increase in potential emission rate
no more than 1 pound per hour (4.38 tons per year, assuming continuous
operation for 8,760 hours per year) for any NAAQS pollutant or total
VOCs.
    The Technical permit revisions established under the proposed New
Mexico SIP revisions are not required to meet the full public
participation requirements under Part 72.\19\ Under the new submitted
Section 219, Technical permit revisions, like new permit applications
and Significant permit revision applications, the applicant still is
required to publish a newspaper notice of general circulation in each
county in which the source is proposing to construct or modify. This
newspaper notice shall contain the following:
---------------------------------------------------------------------------

    \19\ Technical permit revisions are not subject to public
notification requirements under Paragraphs 1, 4 and 5 of Subsection
B of <IP_ADDRESS> NMAC, and <IP_ADDRESS> NMAC. However, applicant's
requesting a Technical permit revision must still meet the public
notice requirements contained in Paragraphs 2 and 3 of 20.2.203
NMAC.
---------------------------------------------------------------------------

    1. The applicant's name and address, together with the names and
addresses of all owners or operators of the facility or proposed
facility;
    2. The actual or estimated date that the application was or will be
submitted to the Department;
    3. The exact location of the facility or proposed facility;
    4. A description of the process or change for which a permit is
sought, including an estimate of the maximum quantities of any
regulated air contaminant the source will emit after proposed
construction is complete or permit is issued;
    5. The maximum and standard operating schedules of the facility
after completion of proposed construction or permit issuance; and
    6. The current address of the Department to which comments and
inquiries may be directed.
    The applicant also is still required to provide certified mail
notices of the proposed Technical permit revision to nearby
municipalities, Indian tribes, and counties.\20\ Public participation
requirements for Technical permit revisions also allow for NMED to hold
a public meeting in response to significant public interest in the
proposed permit revision. What is no longer required is that the
applicant (1) provides certified mail notices to owners of all
properties within specified distances; (2) post signs of the notice in
four publicly accessible places; or (3) submit a public service
announcement to at least one radio of TV station that serves the area
where the source is located. NMED is not required to publish a
newspaper notice that includes its preliminary intent to issue the
permit if the construction or modification requested in the application
will comply with air quality requirements, including ambient standards.
---------------------------------------------------------------------------

    \20\ 20.2.72,203(B)(1) and (2) NMAC require that the applicant's
public notice be: (1) Provided by certified mail, to the owners of
record, as shown in the most recent property tax schedule, of all
properties: (a) Within one hundred (100) feet of the property on
which the facility is located or proposed to be located, if the
facility is or is proposed to be located in a Class A or Class H
county or a municipality with a population of more than two thousand
five hundred (2500) persons; or (b) within one-half (\1/2\) mile of
the property on which the facility is located or is proposed to be
located if the facility is or will be in a county or municipality
other than those specified in Sub-paragraph (a) of Paragraph 1 of
Subsection B of <IP_ADDRESS> NMAC; and (2) provided by certified mail
to all municipalities and counties in which the facility is or will
be located and to all municipalities, Indian tribes, and counties
within a ten (10) mile radius of the property on which the facility
is proposed to be constructed or operated.
---------------------------------------------------------------------------

    The applicant is required to file a certified written notification
of the proposed Technical revision to NMED. NMED has 30 days after the
receipt of a complete application to approve or deny the Technical
permit revision or inform the applicant that the Technical permit
revision request must be ``bumped up'' and resubmitted as a Significant
permit revision requiring the revision to undergo full public
participation. The Technical permit revision becomes effective upon
written approval from NMED, and NMED is required to attach the
Technical permit revision to the existing permit.
    While the Technical permit revisions are exempt from a portion of
the public participation requirements, within the scope of New Mexico's
revised rules, the thresholds do not affect any part of the technical
review of these permit revision applications, including a requirement
that the applicant demonstrate that the proposed modification will not
result in allowable emissions that could contribute to an exceedance of
the NAAQS.
    New Mexico determined that revisions allowed under the Technical
permit revisions provisions were limited to permit revisions that
either have no associated increases in emissions or associated
emissions increases that are insignificant. The first four permit
actions listed previously that qualify as Technical permit revisions do
not have any associated increases in permitted emission rates.
Therefore, similar to the Administrative permit revisions, these four
types of Technical permit revisions are truly de minimis in nature.
Therefore, similar to our determination for Administrative permit
revisions, we propose to find that New Mexico provided an adequate
demonstration and justification to show that these four types of
Technical permit revisions provisions that are excluded from the full
public participation requirements are environmentally insignificant and
therefore satisfy the provisions of 40 CFR 51.160(e) and 161. The three
remaining types of Technical permit revisions are limited to permit
revisions that are expected to be environmentally insignificant, either
because of the limits placed on the associated emissions increases or
because the limited subcategory of permit revisions, which represent a
small subset of the permitting universe that are allowed by the
Technical revisions. Two of the remaining Technical revisions are
limited to permit actions that have associated increases in permitted
emission rates less than 1 pound per hour, which equates to 4.38 tons
per year assuming continuous operation. As documented in the SIP
revision submittal, an emissions increase of this small magnitude is
not expected to result in a significant environmental impact. The last
Technical permit revision with associated increases in permitted
emissions allows an applicant to request up to a 10 percent increase in
permitted emission rates as a result of initial compliance testing.
Such adjustments in permitted emission rates are limited to very
specific permit actions, and the applicant is required to, as part of
the Technical permit revision request, supply a demonstration that the
requested increase will not trigger additional requirements under any
Part of the NMAC, including Part 74--PSD, and will not result in
allowable emissions that could contribute to the violation of any
NAAQS. The provisions in Section 219 result in the scope of permit
revisions that would qualify for the 10 percent increase allowance to
be limited to a small portion of permitting actions. New Mexico has
reviewed the 73 Technical permit revisions issued since 2009, and none
of these Technical permit revisions were issued under the 10 percent
increase allowance provisions contained in <IP_ADDRESS>(B)(1)(e)
NMAC.\21\ Therefore, based on the insignificant environmental impacts
associated with the Technical permit revisions found in
<IP_ADDRESS>(B)(1)(b) NMAC and <IP_ADDRESS>(B)(1)(f) NMAC and the

limited scope of permitting actions allowed under the Technical
revision found in <IP_ADDRESS>(B)(1)(e) NMAC, we propose to find that
New Mexico provided an adequate demonstration and justification to show
that exclusion of these remaining three types of Technical permit
revisions provisions from the full public participation requirements
are environmentally insignificant and therefore satisfy the provisions
of 40 CFR 51.160(e) and 161.
---------------------------------------------------------------------------

    \21\ Additional historical Technical permit revisions data was
provided via electronic mail dated November 2, 2012, from Kerwin
Singleton, NMED, to Ashley Mohr, EPA, Region 6.
---------------------------------------------------------------------------

c. 110(l) Analysis for Technical Revisions
    As noted, the proposed revisions to add Section 219 and establish a
tiered permit revisions approach for Minor NSR modifications result in
a reduction of public notice requirement for a portion of the
modifications listed as Technical permit revisions. Similar to the
Administrative permit revisions, most of the permit actions that
qualify as Technical permit revisions do not have associated increases
in permitted emission limits. Under the new provisions found in Section
219, these Technical permit revisions are required to conduct a reduced
public notice that requires the applicant provide notice via certified
mail to specific persons and via a published newspaper notice. This
public notice is reduced compared to the public notice required for
Significant permit revisions, but is more stringent than the current
SIP requirements for revisions with no associated increases in
permitted emissions, which include a requirement for public notice only
for those permit revisions that include an increase in a permitted
emission limit. Therefore, for those Technical permit revisions which
do not have associated increases in permitted emission limits, the
proposed revisions to the New Mexico SIP result in additional public
notice requirements that are not included in the current SIP.
    The three permit actions identified as Technical permit revisions
in <IP_ADDRESS>(B)(1)(b) NMAC, <IP_ADDRESS>(B)(1)(e) NMAC, and
<IP_ADDRESS>(B)(1)(f) NMAC do include associated increases in permitted
emission limits. Two of these permit revisions allow only for small
increases in permitted emission rates (1 pound per hour, which
corresponds to 4.38 tons per year assuming continuous operation). The
remaining permit action that qualifies as a Technical permit revision
having an associated increase in emission limitations described in
<IP_ADDRESS>(B)(1)(e) NMAC has other requirements that must be met by
the permit revision action that ensure that the revision will not
contribute to a NAAQS violation. For example, the applicant must
demonstrate that the increase in permit emissions limits being proposed
as a result of stack testing will not result in a new allowable
emission limit in the permit that would contribute to a violation of
the NAAQS. These revisions, like all other Technical permit revisions,
will undergo review by NMED during which the Department will confirm
that the revision meets the applicable requirements of Section 219 to
qualify for a Technical permit revision and determine if the revision
should be issued, denied, or ``bumped up'' to a Significant permit
revision. Since Technical permit revisions have a required public
notice component, the public will be notified of the proposed revision
and will have the opportunity to request a public meeting if they have
significant questions or concerns regarding the proposed permit
revision.
    Since adopting the tiered permit revisions approach in 1998, New
Mexico has issued 2,055 Administrative permit revisions, 234 Technical
permit revisions, and 482 Significant permit revisions in accordance
with the Section 219 provisions. NMED's implementation of the tiered
permit revision program, which allows for reduced public notice for
Administrative and Technical revisions, has not resulted in a measured
exceedance of the NAAQS and has not shown any interference with
reasonable further progress in the state.\22\ Furthermore, a review of
the Technical permit revisions issued in the last three calendar years
(2009-2011) shows that the total annual increases in permitted
emissions is less than 7 tons per year for all NAAQS pollutants for
each of the years.\23\ In fact, most of the pollutants show no change
or an overall decrease in annual emissions as a result of the Technical
permit revisions issued during a given calendar year. This historical
look back of the New Mexico preconstruction permitting program is
consistent with our expectation that the tiered permit revision program
and associated tiered public notice requirements will not have adverse
impacts on air quality that interfere with attainment or reasonable
further progress or any other applicable requirement of the Act.
---------------------------------------------------------------------------

    \22\ Historical permit revisions data provided via Clarification
of Exemptions in Section 202 of 20.2.72 NMAC--Construction Permits
letter dated September 19, 2012 from Richard L. Goodyear, PE, Bureau
Chief, NMED to Mr. Thomas Diggs, Associate Director for Air
Programs, EPA, Region 6.
    \23\ Additional historical Technical permit revisions data was
provided via electronic mail dated November 2, 2012, from Kerwin
Singleton, NMED, to Ashley Mohr, EPA, Region 6.
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    Based on the reasons discussed above, we do not believe that the
addition of Technical permit revisions to the tiered approach in
Section 219, will interfere with attainment or reasonable further
progress or any other applicable requirement of the Act. We believe
that New Mexico provided a demonstration that adequately justifies the
scope of activities that require full review with public participation,
because it excludes Technical permit revisions that have associated
environmental impacts that are either de minimis or environmentally
insignificant, using de minimis principles like those established in
Alabama Power to identify permit revisions that are not environmentally
significant. Our evaluation of the SIP revision submittals related to
Section 219, which are under review in this action, demonstrates
compliance with section 110(l) of the CAA and provides further basis
for proposed approval of this SIP revision.
d. Significant Permit Revisions
    Significant revisions include those modifications made at a
stationary source that either prior to or following the modification
would result in a facility-wide potential emission rate for any
regulated air contaminant greater than 10 pounds per hour or 25 tons
per year, given that the modification does not qualify as a Paragraph
A, B, or C exemption under Section 202 or an Administrative or
Technical Revision under Section 219. Significant permit revisions must
follow the same permitting procedures and meet the same permitting
requirements (e.g., payment of applicable fees, completion of public
notice) as those required for newly issued Minor NSR permits. The
permitting requirements for Significant permit revisions are no more or
less stringent than those required for permit revisions with an
associated increase in permitted emission rates under the currently
approved SIP. Significant permit revisions are subject to the same
submitted public participation requirements as those required for
initial Minor NSR permits, that we are proposing to approve. Because
the associated public participation requirements do not undermine the
SIP revision's ability to meet section 110(l) or any other applicable
requirement of the Act, we propose to approve Significant permit
revisions under Section 219 into the New Mexico SIP.

7. Submitted Revisions to Section 202--New Exemptions for de Minimis
Sources and Activities From Minor NSR Permitting Requirements
    As required by 40 CFR 51.160(e), a NSR program, including a Minor
NSR permitting program, must have procedures in place that identify the
``types and sizes of facilities, buildings, structures, or
installations which will be subject to review.'' As part of the current
SIP-approved Part 72 regulations, all stationary sources with emissions
in excess of the following emissions thresholds are required to obtain
a construction permit: (1) Any person constructing a stationary source
which has a potential emission rate greater than 10 pounds per hour or
25 tons per year of any regulated air contaminant for which there is a
National or New Mexico Ambient Air Quality Standard; (2) Any person
modifying a stationary source when all of the pollutant emitting
activities at the entire facility, either prior to or following the
modification, emit a regulated air contaminant for which there is a
National or New Mexico Ambient Air Quality Standard with a potential
emission rate greater than 10 pounds per hour or 25 tons per year and
the regulated air contaminant is emitted as a result of the
modification; and (3) Any person constructing a stationary source which
has a potential emission rate for lead greater than 5 tons per year or
modifying a stationary source which either prior to or following the
modification has a potential emission rate for lead greater than 5 tons
per year.\24\
---------------------------------------------------------------------------

    \24\ The New Mexico SIP at <IP_ADDRESS>(A)(1), (2), and (5)
specify the emissions thresholds that trigger minor preconstruction
permitting requirements.
---------------------------------------------------------------------------

    Therefore, the current New Mexico SIP does exempt constructed
stationary sources and modifications to an existing stationary source
with potential emissions below these thresholds from the Minor NSR
permitting requirements. These emissions based exemptions are the only
type of exemptions contained in the current SIP for the Minor NSR
permitting program.
    As part of the May 29, 1998 SIP submittal, Paragraphs A, B, and C
were added to Section 202 containing new exemptions from the Minor NSR
permitting requirements in Part 72. These newly proposed exemptions are
emission source or activity based exemptions. The provisions contained
in these new Paragraphs include a listing of the specific types and
sizes, where applicable, of sources and activities that would be exempt
from all or a portion of the preconstruction permitting requirements.
Therefore, the sources and activities included in Paragraphs A, B, and
C can be commenced or changed without obtaining a Minor NSR permit or
Minor NSR permit revision. The following subsections describe the
sources and emission activities listed in each Paragraph and the
permitting requirements they are exempted from in further detail.
Because these Paragraphs add source and activity specific exemptions
from preconstruction permitting beyond the exemptions evaluated for and
included in the current New Mexico SIP, the following subsections also
evaluate each new Paragraph to determine if the proposed exemptions
will interfere with attainment or reasonable further progress or any
other applicable requirement of the Act pursuant to section 110(l).
a. Paragraph A Exemptions
    Paragraph A includes a list of exempted emission sources and
activities EPA has historically approved into state SIPs, finding them
to have de minimis environmental impacts due to their trivial,
insignificant nature.\25\ These emission sources and activities
include, but are not limited to, those relating to office activities
such as photocopying, residential activity such as fireplaces and
barbecue cookers, food service such as cafeteria activity, and
maintenance of ground activities such as lawn care and pest control
(see our TSD for a complete list of the Paragraph A exemptions).
---------------------------------------------------------------------------

    \25\ See e.g. Montana Air Quality Permits--General Exclusions
(76 FR 40237, July 8, 2011), West Virginia Table 45-13B De Minimis
Sources (72 FR 5932, February 8, 2007).
---------------------------------------------------------------------------

b. 110(l) Analysis for Paragraph A Exemptions
    NMED provided a summary of anticipated impacts on ambient air
quality for the emission sources and activities included in the
Paragraph A exemptions. For all sources on this list, NMED indicated
that impacts are expected to be non-existent, negligible/insignificant,
or less than emissions from other sources that are currently
unregulated.\26\ NMED's determination of anticipated impacts for these
sources is consistent with our understanding of the environmental
insignificance of emissions anticipated from these small emission
sources and activities. In addition, NMED has been carrying out the
MNSR permitting program based on the codification of their permitting
policy since the adoption of the Paragraph A permit exemptions in 1998
without any indication that these permit exemptions have interfered
with attainment or reasonable further progress. Specifically, the
implementation of the Paragraph A exemptions has not resulted in a
measured exceedance of the NAAQS. The historical monitoring data is
consistent with the anticipated impacts from these types of emission
sources and activities being environmentally insignificant along with
the fact that the sources that qualify for exemptions from Minor NSR
permitting requirements make a small portion of the state's emission
sources. Based on the current number of active emission sources in the
state of New Mexico, NMED estimates that the portion of emission
sources that qualify for exemptions under Section 202, including the
Paragraph A exemptions, accounts for less than ten percent (10%) of the
total number of active emission sources in the state.\27\ Based on the
supporting information and historical look back regarding these types