Clean Air Act Final Full Approval of Operating Permits Program; the State of New Mexico and Albuquerque/Bernalillo County

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[NM003; AD-FRL-5654-8]

Clean Air Act Final Full Approval of Operating Permits Program;

the State of New Mexico and Albuquerque/Bernalillo County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is promulgating full approval of the Operating Permits

program submitted by the New Mexico Environment Department (NMED) under

the signature of the Governor, and separately by the City of

Albuquerque/Bernalillo County (the City), for the purpose of complying

with Federal requirements for approvable State and local programs to

issue operating permits to all major stationary sources, and to certain

other sources with the exception of Indian Lands.

DATES: This action is effective on January 27, 1997, unless adverse or

critical comments are received by December 26, 1996. If the effective

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

Register.

ADDRESSES: Copies of the submittals and other supporting information

used in developing the final full approval 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 visiting day.

Environmental Protection Agency, Region 6, Air Programs Branch

(6PD-R), 1445 Ross Avenue, suite 700, Dallas, Texas 75202-2733.

New Mexico Environment Department, Harold Runnels Building, room

So. 2100, 1190 St. Francis Drive, Santa Fe, New Mexico 87503.

City of Albuquerque/Bernalillo County, Environmental Health

Department, One Civic Plaza, NW., room 3023, Albuquerque, New Mexico

87103.

FOR FURTHER INFORMATION CONTACT: Wm. Nicholas Stone, Air Permits

Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross

Avenue, suite 700, Dallas, Texas 75202-2733, telephone 214-665-7226.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

Introduction

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (the Act)), and implementing regulations at 40 Code

of Federal Regulations (CFR) part 70 required that States develop and

submit Operating Permits programs to EPA by November 15, 1993, and that

EPA act to approve or disapprove each program within one year after

receiving the submittal. The EPA's program review occurs pursuant to

section 502 of the Act and the part 70 regulations, which together

outline criteria for approval and disapproval. Where a program

substantially, but not fully, meets the requirements of part 70, EPA

may grant the program interim approval for a period of up to two years.

If EPA has not fully approved a program by two years after the November

15, 1993, date, or by the end of an interim program, it must establish

and implement a Federal program.

On May 19, 1994, EPA proposed interim approval of the Operating

Permits program for the State of New Mexico, (See 59 FR 26158 (May 19,

1994)). The EPA received public comment on the proposal and compiled a

final Technical Support Document (TSD) responding to those comments and

briefly describing and clarifying aspects of the Operating Permits

program. The EPA granted final interim approval to the New Mexico

program on December 19, 1994. This final interim approval, published

November 18, 1994, required the State to correct the statutory defect

in criminal fine authority.

On January 10, 1995, EPA proposed interim approval of the Operating

Permits program for the City (See 60 FR 2570 (January 10, 1995)). The

EPA received public comment on the proposal and compiled a final TSD

[[Page 60033]]

responding to those comments and briefly describing and clarifying

aspects of the Operating Permits program. The EPA granted final interim

approval to the City with an informational notice in the Federal

Register dated March 10, 1995. The effective date of the final interim

approval was March 13, 1995. The final interim approval notice (60 FR

2527) required a statutory revision in criminal fine authority by the

State and revisions to the City Joint Air Quality Control Board

Ordinance and the County Joint AQC Board Ordinance consistent with the

State revision.

The State submitted corrections to the Operating Permits program in

two letters from the Governor, dated May 15, 1995, and July 3, 1995. A

third letter from the Secretary of the NMED, dated July 31, 1996, was

submitted to clarify these corrections. These changes fulfill the

requirements of 40 CFR part 70 for the State to receive full approval

of its Operating Permits program. This corrective action was cited by

the Albuquerque/Bernalillo County program in a letter dated June 4,

1996, requesting EPA to complete final approval of the corrected City

program. In this document, EPA is taking final action to promulgate

full approval of the Operating Permits program for the State of New

Mexico and the City of Albuquerque/Bernalillo County.

II. Final Action and Implications

A. Analysis of State Submission

The State of New Mexico submitted to EPA, under a cover letter from

the Governor dated November 15, 1993, the State's Operating Permits

program. The City of Albuquerque/Bernalillo County submitted their

final Operating Permits program to EPA on April 4, 1994. Both programs

have addressed the interim approval issue regarding statutory fine

authority and requested full approval of the corrected programs. These

submittals have adequately addressed all 16 elements required for full

approval as discussed in part 70. The State of New Mexico and the City

appropriately addressed all requirements necessary to receive full

approval of their Operating Permits program pursuant to title V of the

Act and 40 CFR part 70.

The final interim approval for both programs (59 FR 59656 and 60 FR

2527) required the State to correct the statutory defect in criminal

fine authority, and for the City to amend the ordinances to be

consistent with the State revision, in order to receive full approval.

In addition to raising the criminal fine amounts to at least $10,000

for all offenses listed in 40 CFR 70.11(a)(3)(ii), statutory revisions

must provide authority for the imposition of those fines on a per day

per violation basis, as required by 40 CFR 70.11(a)(3)(ii). Evidence of

these statutory revisions and their procedurally correct adoption were

submitted to EPA under the Governor's signature in a letter dated May

15, 1995. This amendment to the State statute corrects the defect noted

in both interim approvals.

The State of New Mexico also submitted a list of insignificant

activities under the Governor's signature in a letter dated July 3,

1995. The State made this revision based on the requirement that the

Administrator approve any list of insignificant activities. This action

will approve the list of insignificant activities into the approved

program.

B. Options for Approval

The EPA is promulgating full approval of the Operating Permits

program submitted by the State on November 15, 1993, and amended on May

15, 1995, and again on July 3, 1995. Further, EPA is promulgating full

approval of the Operating Permits program submitted by the City on

April 4, 1994, and amended with the changes to the State statute cited

in the letter dated June 4, 1996. These amendments were incorporated

into the City ordinances on July 3, 1996. The amendments to the program

noted above satisfy the full approval requirements set forth in the

final interim approval published November 18, 1994, for the State of

New Mexico and on January 10, 1995, for the City of Albuquerque/

Bernalillo County.

The EPA is publishing this action without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve these Operating

Permits programs should adverse or critical comments be filed. This

action will be effective January 27, 1997 unless, by December 26, 1996,

adverse or critical comments are received.

If EPA receives such comments, this action will be withdrawn before

the effective date by publishing a subsequent action that will withdraw

the final action. All public comments received will 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, the public is advised that this

action will be effective January 27, 1997.

III. Administrative Requirements

A. Docket

Copies of the State's submittal and other information relied upon

for the final full approval, including the submission under the

Governor's signature, are contained in docket number FR Docket OPP 4-9-

2 and FR Docket OPP 5-9-2, maintained at EPA Region 6 Office. Copies of

the City's submittal and other information relied upon for the final

full approval are contained in docket number FR Docket OPP 5-9-2,

maintained at EPA Region 6 Office. These dockets are an organized and

complete file of all the information submitted to, or otherwise

considered by, EPA in the development of these final full approvals.

These dockets are available for public inspection at the location

listed under the ADDRESSES section of this document.

B. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866 review.

C. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in estimated costs to State, local, or

tribal governments in the aggregate; or to the private sector, of $100

million or more. Under section 205, EPA must select the most cost-

effective and least burdensome alternative that achieves the objectives

of the rule and is consistent with statutory requirements. Section 203

requires EPA to establish a plan for informing and advising any small

governments that may be significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated today

does not include a Federal mandate that may result in estimated costs

of $100 million or more to either State, local, or tribal governments

in the aggregate, or to the private sector. This Federal action

approves pre-existing requirements under State or local law, and

imposes no new Federal requirements. Accordingly, no additional costs

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

result from this action.

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D. 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, 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 this rule in today's

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

U.S.C. 804(2).

E. Petitions 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 January 27, 1997. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review nor does

it extend the time within which a petition for judicial review may be

filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

Reporting and recordkeeping requirements.

Dated: November 12, 1996.

Lynda F. Carroll,

Acting Regional Administrator (6RA).

40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. In appendix A to part 70 the entry for ``New Mexico'' is amended

by adding paragraphs (c) and (d) to read as follows:

Appendix A to Part 70--Approval status of State and Local Operating

Permits Programs

* * * * *

New Mexico

* * * * *

(c) The New Mexico Environment Department, Air Pollution Control

Bureau submitted an operating permits program on November 15, 1993,

which was revised July 31, 1996, and became effective on December 26,

1996.

(d) The City of Albuquerque, Environmental Health Department,

submitted an operating permits program on April 4, 1994, which was

revised July 31, 1996, and became effective on December 26, 1996.

* * * * *

[FR Doc. 96-30159 Filed 11-25-96; 8:45 am]

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