Approval and Promulgation of Implementation Plan for New Mexico Albuquerque/Bernalillo County: General Conformity Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM29-1-7272a; FRL-5549-9]

Approval and Promulgation of Implementation Plan for New Mexico--

Albuquerque/Bernalillo County: General Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves the Albuquerque/Bernalillo County State

Implementation Plan (SIP) revision that contains regulations for

implementing and enforcing the general conformity rules which the EPA

promulgated on November 30, 1993 (58 FR 63214). Specifically, the

general conformity rules enable the Albuquerque/Bernalillo County Air

Quality Control Board to review conformity of all Federal actions (see

40 CFR part 51, subpart W--Determining Conformity of General Federal

Actions to State or Federal Implementation Plans) with the control

strategy SIP's submitted for the nonattainment and maintenance areas

within the boundary of Bernalillo County. This approval action is

intended to streamline the conformity process and allow direct

consultation among agencies at the local levels. The Federal actions by

the Federal Highway Administration and Federal Transit Administration

(under 23 U.S.C. or the Federal Transit Act) are covered by the

transportation conformity rules under 40 CFR part 51, subpart T--

Conformity to State or Federal Implementation Plans of Transportation

Plans, Programs, and Projects Developed, Funded or Approved Under Title

23 U.S.C. or the Federal Transit Act. The EPA approved the Albuquerque/

Bernalillo County transportation conformity SIP on November 8, 1995 (60

FR 56241).

The EPA is approving this SIP revision under sections 110(k) and

176 of the Clean Air Act (the Act). The rationale for the approval and

other information are provided in this document.

DATES: This action is effective on November 12, 1996, unless adverse or

critical comments are received by October 15, 1996. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Copies of the Albuquerque/Bernalillo County General

Conformity SIP and other relevant information are available for

inspection during normal business hours at the following locations.

Interested persons wanting to examine these documents should make an

appointment with the appropriate office at least 24 hours before the

visiting day:

Air Planning Section (6PDL), Multimedia Planning and Permitting

Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,

Dallas, Texas 75202, Telephone: (214) 665-7214.

Air and Radiation Docket and Information Center, Environmental

Protection Agency, 401 M Street, S.W., Washington, D.C. 20460.

Air Pollution Control Division, Albuquerque Environmental Health

Department, One Civic Plaza, Albuquerque, New Mexico 87103, Telephone:

(505) 768-2600.

FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E., Air Planning

Section (6PDL), Multimedia Planning and Permitting Division ,

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,

Texas 75202, telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION:

I. Background

Conformity provisions first appeared in the Act as amended in 1977

(Pub. L. 95-95). Although these provisions did not define conformity,

they provided that no Federal department could engage in, support in

any way or provide financial assistance for, license or permit, or

approve any activity which did not conform to a SIP that has been

approved or promulgated for the nonattainment or maintenance areas.

The 1990 Amendments of the Act expanded the scope and content of

the conformity provisions by defining conformity to an implementation

plan. Conformity is defined in section 176(c) of the Act as conformity

to the SIP's purpose of eliminating or reducing the severity and number

of violations of the National Ambient Air Quality Standards and

achieving expeditious attainment of such standards, and that such

activities will not: (1) cause or contribute to any new violation of

any standard in any area, (2) increase the frequency or severity of any

existing violation of any standard in any area, or (3) delay timely

attainment of any standard or any required interim emission reductions

or other milestones in any area.

The Act requires EPA to promulgate criteria and procedures for

determining conformity of all other Federal actions in the

nonattainment or maintenance areas (actions other than those under

Title 23 U.S.C. or the Federal Transit Act ) to a SIP. The criteria and

procedures developed for this purpose

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are called ``general conformity'' rules. The rules pertaining to

actions under Title 23 U.S.C. or the Federal Transit Act were published

in a separate Federal Register notice on November 24, 1993 (see 58 FR

62188). The EPA published the final general conformity rules on

November 30, 1993 (58 FR 63214) and codified them at 40 CFR part 51,

subpart W--Determining Conformity of General Federal Actions to State

or Federal Implementation Plans. The general conformity rules require

the States and local air quality agencies (where applicable) to adopt

and submit a general conformity SIP revision to the EPA not later than

November 30, 1994.

II. Evaluation of State's (Albuquerque/Bernalillo County)

Submission

In response to the Federal Register notice of November 30, 1993,

the Governor of New Mexico submitted a SIP revision which included the

general conformity rules adopted by the Albuquerque/Bernalillo County

Air Quality Control Board. Currently, the Albuquerque/Bernalillo area

is nonattainment for carbon monoxide and has requested redesignation to

attainment; however, the general conformity SIP revision is applicable

to all nonattainment and maintenance classifications under the Act. The

following paragraphs present the results of EPA's review and evaluation

of the Albuquerque/Bernalillo County nonattainment area SIP revision.

The Albuquerque Environmental Health Department (AEHD) is the lead

air agency for SIP development, adoption, and enforcement in the

Bernalillo County carbon monoxide nonattainment area. The New Mexico

Air Quality Control Act (NMAQCA) allows, by ordinance, ``A'' class

counties (as defined in the New Mexico statute) and any municipality

within an ``A'' class county to create a municipal, county, or joint

air quality board to administer and enforce the provisions of the

NMAQCA. The City of Albuquerque and Bernalillo County have jointly

established such a board, namely Albuquerque/Bernalillo County Air

Quality Control Board, for administration and enforcement of NMAQCA

because Bernalillo County is an ``A'' class county. The AEHD is the

regulatory and administrative agency for implementing and enforcing the

air quality control regulations of the Board in the Bernalillo County

nonattainment area.

On December 19, 1994, the Governor of New Mexico submitted a SIP

revision on behalf of the Albuquerque/Bernalillo County Air Quality

Control Board in compliance with 40 CFR part 51 subpart W that contains

the general conformity rules. The SIP revision was adopted by the Board

on November 9, 1994, after appropriate public participation and

interagency consultation. The AEHD adopted the Federal general

conformity rules verbatim with the exception of limited changes and

additional definitions, where necessary, to create consistency with the

local processes, procedures, and area specific terms or names. These

minor modifications and additional clarifications do not in any way

alter the effect, implementation and enforcement of the Federal

conformity requirements in the Bernalillo County nonattainment area.

The EPA has determined that AEHD's general conformity rule meets the

Federal requirements and EPA is approving this SIP revision.

III. Final Action

The EPA is approving the general conformity SIP revision for the

Albuquerque/Bernalillo County nonattainment area as submitted by the

Governor of New Mexico on December 19, 1994. The EPA has evaluated this

SIP revision and has determined that Albuquerque/Bernalillo County

nonattainment area has fully adopted the provisions of the Federal

general conformity rules in accordance with 40 CFR part 51 subpart W.

The appropriate public participation and comprehensive interagency

consultations have been undertaken during development and adoption of

these rules by the Albuquerque Environmental Health Department at the

local level.

The EPA is publishing this action without prior proposal because

the EPA views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, the EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. This action will be

effective November 12, 1996, unless adverse or critical comments

concerning this action are submitted and postmarked by October 15,

1996. If the EPA receives such comments, this action will be withdrawn

before the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received concerning this

action will then be addressed in a subsequent final rule based on this

action serving as a proposed rule. The EPA will not institute a second

comment period on this action. Any parties interested in commenting on

this action should do so at this time. If no such comments are received

on this action, the public is advised that this action will be

effective November 12, 1996.

IV. Administrative Requirements

A. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, under 5 U.S.C. 605(b), the EPA may certify that the rule

will not have a significant impact on a substantial number of small

entities (see 46 FR 8709). Small entities include small businesses,

small not-for-profit enterprises, and governmental entities with

jurisdiction over populations of less than 50,000.

SIP approvals under section 110 and subchapter I, part D of the Act

do not create any new requirements, but simply approve requirements

that the State is already imposing. Therefore, because the Federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on small entities. Moreover, due to the

nature of the Federal-State relationship under the Act, preparation of

a regulatory flexibility analysis would constitute Federal inquiry into

the economic reasonableness of State action. The Act forbids EPA from

basing its actions concerning SIPs on such grounds. Union Electric Co.

v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section

7410(a)(2).

B. Unfunded Mandates

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995, signed into law on March 22, 1995, the EPA must undertake

various actions in association with proposed or final rules that

include a Federal mandate that may result in estimated costs of $100

million or more to the private sector, or to State, local, or tribal

governments in the aggregate.

Through submission of this SIP or plan revision approved in this

action, the State and any affected local or tribal governments have

elected to adopt the program provided for under sections 110 and 176 of

the Clean Air Act. The rules and commitments approved in this action

may bind State, local, and tribal governments to perform certain

actions and also require the private sector to perform certain duties.

To the extent that the rules and commitments being approved by this

action will impose or lead to the imposition of any mandate upon the

State, local, or tribal governments, either as the owner or operator of

a source or as a regulator, or would impose or lead to the imposition

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of any mandate upon the private sector, the EPA's action will impose no

new requirements; such sources are already subject to these

requirements under State law. Accordingly, no additional costs to

State, local, or tribal governments, or to the private sector, result

from this action. Therefore, the EPA has determined that this final

action does not include a mandate that may result in estimated costs of

$100 million or more to State, local, or tribal governments in the

aggregate or to the private sector.

C. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

D. Procedural Information

This action has been classified as a Table Three action for

signature by the Regional Administrator under the procedures published

in the Federal Register on January 19, 1989 (54 FR 2214-2225), as

revised by a July 10, 1995, memorandum from Ms. Mary Nichols, Assistant

Administrator for Air and Radiation.

E. Petition for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by November 12, 1996. Filing a petition for

reconsideration of this final rule by the Regional Administrator does

not affect the finality of this rule for purposes of judicial review;

nor does it extend the time within which a petition for judicial review

may be filed, or postpone the effectiveness of this rule. This action

may not be challenged later in proceedings to enforce its requirements

(see section 307(b)(2)).

Nothing in this action shall be construed as permitting, allowing,

or establishing a precedent for any future request for a revision to

any SIP. Each request for revision to the SIP shall be considered

separately in light of specific technical, economic, and environmental

factors and in relation to relevant statutory and regulatory

requirements.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

General conformity, Hydrocarbons, Incorporation by reference,

Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate

matter, Volatile organic compounds.

Dated: July 24, 1996.

Allyn M. Davis,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart GG--New Mexico

2. Section 52.1620 is amended by adding paragraph (c)(60) to read

as follows:

Sec. 52.1620 Identification of Plan.

* * * * *

(c) * * *

(60) A revision to the New Mexico State Implementation Plan for

General Conformity: Albuquerque/Bernalillo County Air Quality Control

Regulation No. 43 ``General Conformity'' as adopted on November 9,

1994, and filed with the State Records and Archives Center on December

16, 1994, was submitted by the Governor on December 19, 1994.

(i) Incorporation by reference.

(A) Albuquerque/Bernalillo County Air Quality Control Regulation

No. 43 ``General Conformity'' as adopted on November 9, 1994, and filed

with the State Records and Archives Center on December 16, 1994.

[FR Doc. 96-23267 Filed 9-12-96; 8:45 am]

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