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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM 22-1-7103a; FRL-6152-4]

Approval and Promulgation of Implementation Plan for New Mexico:

General Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action conditionally 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 (58 FR 63214). 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

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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) on the condition that the agreed-to

revision is made. The rationale for the approval and other information

are provided in this document.

DATES: This action is effective on October 9, 1998.

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, S.W., Washington, D.C. 20460.

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

Francis Drive, Santa Fe, New Mexico 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 Avenue, Dallas,

Texas 75202, Telephone: (214) 665-7247.

SUPPLEMENTARY INFORMATION:

I. Background

Section 176(c) of the Act requires that all Federal actions conform

to an applicable 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.

As required by section 176(c) of the Act, EPA published the final

general conformity rules on November 30, 1993 (58 FR 63214), which are

codified under 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 EPA no later than November 30, 1994.

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

revision in accordance with 40 CFR part 51, subpart W that contained

the general conformity rule. 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 because it was not consistent with the

requirements of 40 CFR part 51. Subsequently, the Governor of New

Mexico submitted a completely revised SIP on July 18, 1996, which

revised the rule and included a completely recodified set of general

conformity regulations. The revised and recodified SIP revision was

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

The EPA published a direct final approval action on March 26, 1997

(62 FR 14332) for approval of the New Mexico general conformity SIP,

and EPA concurrently published a proposed action on March 26, 1997 (62

FR 14382), to allow interested parties to submit comments, if any.

During the public comment period, EPA received one adverse comment from

FAA. Subsequently, EPA withdrew the direct final approval action on May

28, 1997 (62 FR 28806).

II. Response to Public Comments

During the public comment period, EPA received an adverse comment

from FAA opposing approval of the New Mexico general conformity SIP

without certain revisions to the reporting requirements of the State

rule. The following paragraphs present the commenter's remarks and

EPA's response.

Comment--The commenter noted that 40 CFR 51.851 allows the State to

establish more stringent criteria and procedures only if they apply

equally to non-Federal as well as Federal entities. The commenter

contended that Section 20 NMAC 2.98.110.C of the State regulation would

make the State general conformity rule more stringent than the Federal

rule and, as there are not similar reporting requirements or subsequent

penalties for non-Federal entities, the section should be removed.

The commenter also noted that the possible reduction of the FAA's

emission budget by 50 percent may indirectly impact interstate air

carrier services. Therefore, according to the commenter, Section 110.C

of the proposed rules is Federally preempted by Section 41713 of Title

49 of the United States Code. Further, the commenter argued, the police

powers of the State with respect to aircraft operations are also

subject to Federal preemption. The commenter also argued that by its

potential to reduce flights into and out of the State of New Mexico,

Section 110.C of the proposed rules violates the Commerce Clause of the

United States Constitution.

Response: The EPA has reviewed the FAA comments and examined

provisions of the Act and general conformity rule pertaining to Section

110.C of the State rule. The EPA did not find any statutory or

regulatory provisions similar to Section 110.C. In addition, a review

by the State of New Mexico Environment Department indicated that the

provisions of Section 110.C would not be appropriate since the State

never intended their requirements to be more stringent than the Federal

requirements. Subsequently, the State agreed to remove Section 110.C

from its general conformity rule, making the State rule consistent with

the Federal rule. This action by the State satisfactorily addresses the

FAA concerns.

III. Conditions and Commitments

Review of the State rule, the public comment, and the State's

evaluation of its rule indicated that Section 110.C of the State rule

makes the New Mexico general conformity rule more stringent than the

Federal rule. Since the State's original intention was to make the

general conformity rule requirements, including the provisions of

Section 110.C, applicable to the Federal actions only, EPA has

determined that Section 110.C is not consistent with the Federal rule

40 CFR 51.851 that specifies more stringent criteria and procedures

must

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apply equally to non-Federal as well as Federal entities.

After EPA's consultation with the State, the State has agreed to

correct this inconsistency by removing Section 110.C from its general

conformity rule. In a letter dated April 22, 1998, from the Chief of

the Air Quality Bureau, New Mexico Environment Department, to the EPA

Region 6 Office, the State commits to remove Section 110.C from its

general conformity rule and submit a SIP revision to EPA within twelve

(12) months from the date of this notice, September 9, 1999. The EPA

accepted this commitment from the State because EPA believes that the

State has shown a good faith effort in complying with the SIP

requirements, and this minor inconsistency was not intentionally added

to the regulations. The State's commitment letter will allow EPA to

proceed with a conditional approval while the State is preparing the

appropriate corrections for submission of a SIP revision.

The EPA has determined that New Mexico's general conformity rule

meets the Federal requirements except the provisions of Section 110.C

as cited above. Therefore, EPA is conditionally approving this SIP

revision until the State makes the appropriate corrections and submits

a SIP revision before the date specified above. If the State does not

submit a SIP revision for removal of Section 110.C by the date

specified in this Section of this action, this conditional approval

will automatically be converted to a disapproval on the date specified

above and as further discussed in Section IV of this action.

IV. Final Action

The EPA is conditionally approving a revision to the New Mexico

general conformity SIP revision based on the rationale elaborated in

this action. The general conformity rule is applicable to all

nonattainment and maintenance areas within 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 rule in accordance with 40

CFR part 51, subpart W, with one exception as noted in Sections II and

III of this action. The State has undertaken appropriate public

participation and interagency consultations during development and

adoption of the rules at the local level.

The EPA is approving this SIP revision, based on the State's April

22, 1998, commitment letter and on the condition that the State will

adopt and submit a revised general conformity rule which will contain

the corrections detailed in this action (see Sections II and III)

within 12 months of this final approval action, but not later than

September 9, 1999. If the State fails to submit a SIP revision, as

committed in the letter of April 22, 1998, for removal of Section 110.C

by September 9, 1999, this conditional approval under section 110(k) of

the Act will automatically be converted to a disapproval on that date,

and the sanctions clock will begin. If the State does not submit a SIP,

and EPA does not approve the SIP on which the disapproval was based

within 18 months of the disapproval, EPA must impose the sanctions

under section 179 of the Act.

V. Administrative Requirements

A. Executive Orders (E.O.) 12866 and 13045

The Office of Management and Budget has exempted this regulatory

action from E.O. 12866, entitled ``Regulatory Planning Review.'' This

rule is not subject to E.O. 13045, entitled ``Protection of Children

from Environmental Health Risks and Safety Risks,'' because it is not

an ``economically significant'' action under E.O. 12866.

B. Regulatory Flexibility

The Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq.,

generally requires an agency to conduct a regulatory flexibility

analysis of any rule subject to notice and comment rulemaking

requirements, unless the agency certifies that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

enterprises, and small governmental jurisdictions. This rule will not

have a significant impact on a substantial number of small entities

because conditional approvals of SIP submittals 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 this action will not have a significant

economic impact on a substantial number of small entities. Moreover,

due to the nature of the Federal-State relationship under the Act,

preparation of flexibility analysis would constitute Federal inquiry

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

to base its actions concerning SIPs on such grounds. See Union Electric

Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

If the conditional approval is converted to a disapproval under

section 110(k) of the Act, based on the State's failure to meet the

commitment, it will not affect any existing State requirements

applicable to small entities. Federal disapproval of the State

submittal does not affect its state-enforceability. Moreover, EPA's

disapproval of the submittal does not impose a new Federal requirement.

Therefore, I certify that this disapproval action will not have a

significant economic impact on a substantial number of small entities

because it does not remove existing requirements nor does it substitute

a new Federal requirement.

C. Unfunded Mandates

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 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 this approval action 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 requirements.

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 Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. The EPA will submit a report containing this rule and

other required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller

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General of the United States 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. 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 November 9, 1999. 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 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: August 14, 1998.

Jerry Clifford,

Acting Regional Administrator, Region 6.

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 et seq.

Subpart GG--New Mexico

2. In Sec. 52.1620(c) the first table is amended by adding a new

entry in numerical order to read as follows:

Sec. 52.1620 Identification of plan.

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(c) * * *

EPA Approved New Mexico Regulations

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State

approval/

State citation Title/subject effective EPA approval date Comments

date

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New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality

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*

Part 98.......................... General Conformity.. 08/02/96 September 9, 1998... Conditional approval

expires on

September 9, 1999.

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* * * * *

3. Section 52.1623 is added to read as follows:

Sec. 52.1623 Conditional approval.

(a) General Conformity. (1) A letter, dated April 22, 1998, from

the Chief of Air Quality Bureau New Mexico Environment Department to

the EPA Regional Office, commits the State to remove Section 110.C from

its rule for making the State's rule consistent with Federal rule.

Specifically, the letter states that:

This letter is regarding our general conformity rule, 20 NMAC

2.98--Conformity of General Federal Actions to the State

Implementation Plan. We have been reviewing paragraph 110.C under

Section 110--Reporting Requirements. This is the paragraph in which

the Federal Aviation Administration (FAA) had submitted a comment of

concern to EPA, during EPA's proposed/final approval period for our

rule. This comment caused EPA to withdraw its approval. The FAA had

commented that New Mexico was more stringent than EPA, since our

rule does not apply to non-Federal agencies. Our analysis has

determined that our inclusion of this paragraph may make our rule

more stringent than EPA, and should not have been included. The

paragraph had originally come from a STAPPA/ALAPCO model rule. New

Mexico had never intended to be more stringent than EPA with regards

to general conformity. Hence, the State commits to putting 20 NMAC

2.98 on our regulatory agenda and plan to delete this paragraph

within one year from the Federal Register publication of final

notice of conditional approval to New Mexico's general conformity

SIP.

(2) If the State ultimately fails to meet its commitment to remove

this section from its rule within one year of publication of this

conditional approval, then EPA's conditional action will automatically

convert to a final disapproval.

(b) [Reserved]

[FR Doc. 98-23330 Filed 9-8-98; 8:45 am]

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