Approval and Promulgation of Implementation Plan for New Mexico: General Conformity Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM 22-1-7103a; FRL-5709-6]

Approval and Promulgation of Implementation Plan for New Mexico:

General Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a revision to the New Mexico State

Implementation Plan (SIP) that contains regulations for implementing

and enforcing the general conformity rules which the EPA promulgated on

November 30, 1993. Specifically, the general conformity rules enable

the New Mexico Environment Department 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 SIPs submitted for the nonattainment and

maintenance areas within the State except for actions within the

boundaries 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 Title

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 will act on the New Mexico transportation

conformity SIP under a separate action.

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 May 27, 1997, unless adverse or

critical comments concerning this action are submitted and postmarked

by April 25, 1997. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Copies of the State 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 SW., Washington, DC 20460.

Air Quality Bureau, New Mexico Environment Department, 1190 St. Francis

Drive, Santa Fe, NM 87502, telephone: (505) 827-0042.

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

[[Page 14333]]

Avenue, Dallas, TX 75202, telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION:

I. Background

Conformity is defined in section 176(c) of the Clean Air Act, as

amended in 1990, 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 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 Submission

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

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

general conformity rules adopted by the New Mexico Environment

Department. The State general conformity rule is applicable to all

nonattainment and maintenance areas in the State outside the boundaries

of Bernalillo County. Bernalillo County is a ``class A'' county as

defined by the State statute and authorized by the New Mexico Air

Quality Control Act to establish its own regulatory requirements for

air pollution control within the County. The EPA approved the

Albuquerque/Bernalillo County general conformity SIP revision under a

separate Federal Register action on September 13, 1996 (61 FR 48407).

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

evaluation of the State's general conformity SIP revision.

On November 17, 1994, the Governor of New Mexico submitted a SIP

revision in compliance with 40 CFR part 51, subpart W that contains the

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

Mexico Environmental Improvement Board on November 10, 1994, after

appropriate public participation and interagency consultation. The EPA

could not approve this submittal.

Subsequently, the Governor of New Mexico submitted a completely

revised SIP revision on July 18, 1996, which removed any

inconsistencies and also included a complete recodified set of general

conformity regulations. The revised and recodified SIP revision was

adopted by the New Mexico Environmental Board on June 14, 1996. Since

this 1996 action negates the earlier submittal, the EPA's action today

is based on evaluation of the revised SIP submitted on July 18, 1996.

The revised SIP revision adopts 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 State outside the boundaries of Bernalillo County.

The EPA has determined that the State's general conformity rule, as

submitted by the Governor on July 18, 1996, meets the Federal

requirements and therefore, EPA is approving this SIP revision.

III. Final Action

The EPA is approving a revision to the State of New Mexico SIP

which contains general conformity regulations as submitted by the

Governor of New Mexico on July 18, 1996. The State general conformity

rule is applicable to all nonattainment and maintenance areas in the

State outside the boundaries of Bernalillo County. The EPA has

evaluated this SIP revision and has determined that the State 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 State

Environment Department at the local level.

The EPA is publishing this final approval action without advanced

notice of 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

simultaneously proposing to approve this SIP revision should adverse or

critical comments be filed. This action will be effective May 27,1997,

unless adverse or critical comments concerning this action are

submitted and postmarked by April 25, 1997.

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 May 27, 1997.

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.

IV. Administrative Requirements

A. Executive Order 12866

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. The Office of Management and

Budget has exempted this regulatory action from Executive Order 12866

review.

B. 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. See 5 U.S.C. 603 and 604.

Alternatively, 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

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enterprises, and governmental entities with jurisdiction over

populations of less than 50,000.

The 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).

C. Unfunded Mandates

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

signed into law on March 22, 1995, the 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 private sector, of $100

million or more. Under section 205, the 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 the 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 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

preexisting requirements under State or local law, and imposes no new.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action.

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, 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 the

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

U.S.C. 804(2).

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 May 27, 1997. 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).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

General conformity, Hydrocarbons, Intergovernmental relations, Nitrogen

dioxide, Ozone, Particulate matter, Volatile organic compounds.

Dated: March 4, 1997.

Jerry Clifford,

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)(65) to read

as follows:

Sec. 52.1620 Identification of plan.

* * * * *

(c) * * *

(65) A revision to the New Mexico State Implementation Plan: New

Mexico Administrative Code Title 20 Chapter 2 Part 98 ``Conformity of

General Federal Actions to the State Implementation Plan'', as adopted

on June 14, 1996, by the New Mexico Environmental Board, and filed with

the State Records Center on June 19, 1996, was submitted by the

Governor on July 18, 1996.

(i) Incorporation by reference.

(A) New Mexico Administrative Code Title 20 Chapter 2 Part 98

``Conformity of General Federal Actions to the State Implementation

Plan'', as adopted on June 14, 1996, filed with the State Records

Center on June 19, 1996, and effective on August 2, 1996.

[FR Doc. 97-7692 Filed 3-25-97; 8:45 am]

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