Approval and Promulgation of Implementation Plans; State of New Mexico and County of Bernalillo, New Mexico; State Boards

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-9-1-5214a; FRL-6350-1]

Approval and Promulgation of Implementation Plans; State of New

Mexico and County of Bernalillo, New Mexico; State Boards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves the State Implementation Plan (SIP)

revisions for Board composition and conflict of interest disclosure

requirements submitted both by the State of New Mexico and by

Albuquerque/Bernalillo County, NM. The SIP revisions were submitted by

the County and the State to satisfy the Federal mandate, found in

section 128 of the Federal Clean Air Act (the Act), and in response to

a SIP call letter to the Governor of New Mexico dated July 19, 1989,

requiring a cure to identified SIP deficiencies concerning State

Boards.

The revisions were submitted by the Governor to EPA on April 20 and

July 16, 1990, for the State portion, and on November 16, 1990, for the

Albuquerque/Bernalillo County portion. Supplemental information was

submitted for Albuquerque/Bernalillo County on December 18, 1990,

October 21, 1991, and November 22, 1991. These revisions correct

deficiencies for the New Mexico Environmental Improvement Board (NMEIB)

and the Albuquerque/Bernalillo County Air Quality Board in order to

comply with section 128 of the Act. The EPA approval of these New

Mexico SIP revisions make the revisions federally enforceable.

Subsequent correspondence in February and March 1993 addressed

eligibility for ``public interest'' Board member positions.

DATES: This action is effective on August 2, 1999, without further

notice, unless EPA receives adverse comment by July 1, 1999. If we

receive such comment, we will publish a timely withdrawal in the

Federal Register

[[Page 29236]]

informing the public that this rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to Mr.

Thomas Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 6

Office listed below. Reference Docket Number: File Code SIP 1-3-10; NM-

90-05.

Copies of the documents relevant to this action are available for

public inspection during normal business hours at the following

locations. Anyone wanting to examine these documents should make an

appointment with the appropriate office at least two working days in

advance.

Environmental Protection Agency, Region 6, Air Planning Section

(6PD-L), Multimedia Planning and Permitting Division, 1445 Ross Avenue,

Suite 700, Dallas, Texas 75202-2733.

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

Frances Drive, Room So. 2100, Santa Fe, New Mexico 87503.

Documents which are incorporated by reference are available for

public inspection at the Air and Radiation Docket and Information

Center, Environmental Protection Agency, 401 M Street, SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT: Dr. John Crocker, P.E., of the EPA

Region 6 Air Planning Section at the above address, telephone (214)

665-7596.

SUPPLEMENTARY INFORMATION:

I. Background

The Act, section 128(a) titled--State Boards, requires each SIP to

contain provisions which ensure that: (1) any board or body which

approves permits or enforcement orders under the Act shall have at

least a majority of members who represent the public interest and do

not derive any significant portion of their income from persons subject

to permits or enforcement orders under the Act, and (2) any potential

conflicts of interest by members of such board or body, or the head of

an executive agency with similar powers, be adequately disclosed.

The New Mexico Air Quality Control Act (section 74-2-4) authorizes

Albuquerque/Bernalillo County to locally administer and enforce the

State Air Quality Control Act by providing for a local air quality

control program. Thus, State law views Albuquerque/Bernalillo County

and the remainder of the State of New Mexico as distinct air quality

control entities. Therefore, each entity is required to submit its own

SIP revision in order to completely satisfy the requirements of section

128(a) of the Clean Air Act for the entire State of New Mexico.

A. SIP Call

On July 19, 1989, EPA issued a SIP call to the Governor of New

Mexico providing formal notice of finding the SIP to be substantially

inadequate. The SIP call required New Mexico (i.e., the NMEIB and the

joint Albuquerque/Bernalillo County Air Quality Board) to take curative

steps to comply with section 128 of the Act within a one-year time

period or a corrective Federal Implemention Plan could be imposed to

remedy the deficiencies.

Specifically, the SIP call required New Mexico to submit to EPA a

schedule for the development and submittal of the necessary SIP

revisions to correct the SIP deficiencies, including any necessary

legislation needed to satisfy section 128 requirements (which would be

adopted during the 1990 legislative session).

B. State Submittal

1. State Portion

In response to the July 1989 SIP call, on October 6, 1989, the

State of New Mexico sent draft statutory changes of the New Mexico Air

Quality Control Act (NMAQCA) to EPA for review and comment in

anticipation of a 30-day legislative session to be held in early 1990.

These proposed changes were intended to meet the section 128(a)(1)

requirements of the Act for the NMEIB, by removing permitting and

enforcement jurisdiction from the Board and placing it under the

purview of the NMEID Director. This concept is acceptable under Federal

law. The EPA provided comments on the draft statutory changes on

December 4, 1989. In February 1990, the New Mexico State Legislature

passed House Bill 404aa which contained language that satisfied the

requirements of section 128(a)(1) of the Act. This bill was signed by

the Governor and became immediately effective on February 28, 1990.

On April 20, 1990, the Governor submitted a SIP revision to EPA

addressing the State portion of the State Board requirements. The

submittal was a copy of enacted House Bill (H.B.) 404aa which amended

the NMAQCA. This submittal was in response to the July 19, 1989, SIP

call. House Bill 404aa adopted changes which removed permits and

enforcement orders from the jurisdiction of the board. In addition, it

required a majority of the board members to represent the public

interest, and not derive any significant portion of their income from

persons subject to (or who appear before the board on) issues related

to the Act or the NMAQCA.

After a subsequent review of the SIP revision submittal, EPA

determined on June 18, 1990, that the April 1990 State submittal was

incomplete and requested a formal State submittal of the New Mexico

Conflict of Interest Act and the NMEIB Code of Conduct. Similar

information was also required for the City of Albuquerque/Bernalillo

County portion of the State's submittal (e.g., ordinances, and any

conflict of interest applicable provisions). On July 16, 1990, the

Governor formally submitted the State's Conflict of Interest Act and

the NMEIB Code of Conduct as an addendum to the April 1990 submittal to

meet the section 128(a)(2) requirements of the Act. As indicated in

EPA's letter dated August 9, 1990, this submittal completed the State's

portion of the section 128(a) requirements. Under the State's Conflict

of Interest Act, the members of the board and the NMEID Director are

required to disclose any potential conflicts of interest. The NMEIB

Code of Conduct prescribes standards of conduct for members of the

NMEIB for potential conflict of interest situations. The Code is

consistent with and intended to supplement the requirements of the

State's Conflict of Interest Act, section 10-16-1 to 10-16-16 NMSA

1978. The EPA's earlier review of H.B. 404aa determined that it is

acceptable under Federal law to remove permitting and enforcement

jurisdiction from the NMEIB and to place it under the purview of the

NMEID Director.

2. Albuquerque/Bernalillo County Portion

The initial Governor's SIP revision submittal for the City of

Albuquerque/Bernalillo County occurred on November 16, 1990, via a

letter to EPA and contains a SIP narrative and supporting attachments.

It incorporates amendments to local ordinances correcting the criteria

by which board members are appointed and also addresses Conflict of

Interest. Supplemental information was submitted to EPA on December 18,

1990. The submittal included the following documents:

a. SIP narrative statement regarding State Boards, including three

(3) attachments as follows:

1. City and County Metropolitan Environmental Health Advisory Board

Ordinances as amended.

2. City and County Air Quality Control Board Ordinances.

3. The City Attorney's compilation of materials concerning City and

County Conflict of Interest, and Code of Conduct.

[[Page 29237]]

b. Supporting documents which are necessary for processing and

approving this SIP submittal (e.g., proof of September 9, 1990, legal

notice of public hearing; and public hearing transcript of October 10,

1990).

This submittal was determined by EPA to be incomplete on June 21,

1991, pending a satisfactory resolution of prior EPA comments on the

draft SIP supplement pertaining to State Boards by the City of

Albuquerque's, Air Pollution Control Division. Specifically, these

comments concerned the belief that critical legal flaws or deficiencies

may exist, with respect to State Board requirements, in the

Albuquerque/Bernalillo County addendum SIP revision. Supplemental

information was submitted to EPA on October 21, 1991. A legal opinion

by the Albuquerque City Attorney dated November 22, 1991,

satisfactorily addressed EPA concerns as expressed in the June 21, 1991

letter. After a review of the addendum SIP revision, supplemental

information and this legal opinion, EPA determined on December 17,

1991, that both the State portion and the City of Albuquerque/

Bernalillo County portion of the Governor's submittal were complete.

II. Analysis of State Submission

A. General

The EPA has reviewed the Governor's submittals (both portions) and

developed a Technical Support Document (TSD). The TSD concludes that

the New Mexico Governor's SIP revisions (both portions) meet all of the

requirements of section 128 of the Act. This TSD is available for

inspection by interested parties during normal business hours at the

EPA Region 6 Office.

B. Public Interest Membership

The EPA received written correspondence dated July 4, 1990, from an

interested party concerning the eligibility for ``public interest''

Board member positions. As indicated in a reply letter dated November

27, 1990, EPA interprets the New Mexico Air Quality Control Act as

follows: If a person appears before the Board on any matter(s), and

that person is not paid for his or her appearance(s), or if he or she

is paid, and that payment(s) is not a significant portion of his or her

income, then that person can still qualify to be a public interest

Board member. The EPA does not read the State statute to preclude

persons from being eligible for public interest Board member positions

if they have ever appeared before the Board on any matter(s). The

disqualifying link is whether that appearance(s) was a paid one and

whether the payment, if any, was a significant portion of one's annual

income. The State has agreed with this interpretation as well.

In subsequent correspondence with the New Mexico Environment

Department (previously the NMEID) dated March 19, 1993, EPA further

defined this issue by stating: Persons who are designated to either

represent nonprofit environmental protection organizations or represent

municipal and county governments, do not represent the public interest.

The rationale behind this judgement is that each group could

potentially pursue their own agenda and thus, would not represent the

public interest. Specifically, professional public interest advocates

(e.g., paid representatives) do not qualify for the ``public interest''

majority requirements. However, mere membership in the organizations

would not be disqualifying.

In February and March 1993, the New Mexico Legislature considered

H.B. 552 which proposed to increase the size of the Environmental

Improvement Board from five to seven members. Specifically, the House

Bill proposed that one new member would represent a non-profit

environmental protection organization, and the other member would

represent municipal (and county) governments. On March 2, 1993, EPA

provided comments on this proposed bill and determined that it would

throw the NMEIB public interest membership off balance, and if enacted,

the language would be unapprovable under the Act, section 128.

Likewise, the New Mexico Environment Department analyzed this bill and

recommended not adopting the bill on the grounds that it would expose

the NMEIB to membership composition problems. Subsequently, the New

Mexico Legislature did not pass the flawed H.B. 552.

C. Procedural Background

The Act requires States to observe certain procedural requirements

in developing implementation plans for submission to EPA. Section

110(a)(2) of the Act provides that each implementation plan submitted

by a State must be adopted after reasonable notice and public hearing.

See also section 110(l) of the Act. Also, EPA must determine whether a

submittal is complete, and therefore warrants further EPA review and

action (see section 110(k)(1) and 57 FR 13565). The EPA's completeness

criteria for SIP submittals are set out at 40 CFR part 51, Appendix V

(1991), as amended by 56 FR 42216 (August 26, 1991). The EPA attempts

to make completeness determinations within 60 days of receiving a

submission. However, a submittal is deemed complete by operation of law

if a completeness determination is not made by EPA six months after

receipt of the submission.

Regarding the State portion of the SIP submittal (which includes

New Mexico H.B. 404aa, and New Mexico Conflict of Interest Act) for

State Boards, it is EPA's position that a public hearing is not

required for State legislative statutes. The EPA views the State

legislative process as fully satisfying the procedural requirements of

40 CFR 51.102 for adoption and submittal of SIP revisions.

After providing adequate 30 day public notice, Albuquerque/

Bernalillo County held a public hearing on October 10, 1990, to

entertain public comment on proposed revisions to its portion of the

SIP submittal regarding State Boards. No adverse public comments were

received at the public hearing. Following the public hearing and

consideration of minor public comments, the SIP revision was adopted by

the Albuquerque/Bernalillo County Air Quality Control Board on October

10, 1990. The Albuquerque/Bernalillo County portion of the SIP revision

was then submitted by the Governor to EPA by cover letter dated

November 16, 1990. Supplemental information was submitted on December

18, 1990, October 21, 1991, and November 22, 1991.

The SIP revision was reviewed by EPA to determine completeness

shortly after its submittal, in accordance with the completeness

criteria referenced above. A letter dated December 17, 1991, was

forwarded to the Governor indicating the completeness of the submittal

and the next steps to be taken in the review process.

III. Final Action

By this action, EPA is approving revisions to the New Mexico SIP

regarding State Boards for both the State of New Mexico and for

Albuquerque/Bernalillo County, NM. The SIP revisions were submitted by

the State to satisfy the Federal mandate, found in section 128 of the

Act concerning State Board composition and conflict of interest

provisions. The EPA has reviewed these revisions to the New Mexico SIP

and is approving them as submitted.

The EPA is publishing this action without prior proposal because we

view this as a noncontroversial amendment and anticipate no adverse

comments. However, in the ``Proposed Rules'' section of today's Federal

Register publication, we are publishing a

[[Page 29238]]

separate document that will serve as the proposal to approve the SIP

revision if adverse comments are filed. This action will be effective

on August 2, 1999, without further notice unless we receive adverse

comment by July 1, 1999.

If EPA receives adverse comment, we will publish a timely

withdrawal in the Federal Register informing the public that the rule

will not take effect. We will address all public comments in a

subsequent final rule based on the proposed rule. We will not institute

a second comment period on this action. Any parties interested in

commenting on this action must do so at this time. If no such comments

are received, the public is advised that this action will be effective

August 2, 1999, and no further action will be taken on the proposed

rule.

The EPA has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the 1990 Clean Air

Act Amendments enacted on November 15, 1990. The EPA has determined

that this action conforms with those requirements regardless of the

fact that the submittal preceded the date of enactment. Nothing in this

action should be construed as permitting or allowing or establishing a

precedent for any future request for 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 (E.O.) 12866

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

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a State, local or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, E.O. 12875 requires EPA to provide to the OMB a description

of the extent of EPA's prior consultation with representatives of

affected State, local and tribal governments, the nature of their

concerns, copies of any written communications from the governments,

and a statement supporting the need to issue the regulation. In

addition, E.O. 12875 requires EPA to develop an effective process

permitting elected officials and other representatives of state, local,

and tribal governments ``to provide meaningful and timely input in the

development of regulatory proposals containing significant unfunded

mandates.''

Today's rule does not create a mandate on State, local, or tribal

governments. The rule does not impose any enforceable rules on any of

these entities. Accordingly, the requirements of section 1(a) of E.O.

12875 do not apply to this rule.

C. Executive Order 13045

Executive Order 13045, entitled ``Protection of Children from

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,

1997), applies to any rule that EPA determines: (1) is ``economically

significant'' as defined under E.O. 12866, and (2) the environmental

health or safety risk addressed by the rule has a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

The EPA interprets E.O. 13045 as applying only to those regulatory

actions that are based on health or safety risks, such that the

analysis required under section 5-501 of the Order has the potential to

influence the regulation. This final rule is not subject to E.O. 13045

because it approves a State program.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, E.O. 13084 requires EPA to

provide to the OMB, in a separately identified section of the preamble

to the rule, a description of the extent of EPA's prior consultation

with representatives of affected tribal governments, a summary of the

nature of their concerns, and a statement supporting the need to issue

the regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act, 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 final rule will not have a significant

impact on a substantial number of small entities because 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

create 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 a 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).

F. 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 annual 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.

[[Page 29239]]

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated annual 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.

G. 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 General of the United States prior

to publication of the rule in the Federal Register. A major rule can

not take effect until 60 days after it is published in the Federal

Register. This rule is not a ``major'' rule as defined by 5 U.S.C.

804(2). This rule will be effective August 2, 1999.

H. 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 August 2, 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,

Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide,

Ozone, Particulate matter, Reporting and recordkeeping requirements,

Sulfur oxides, Volatile organic compounds.

Dated: April 26, 1999.

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 of part 52 continues to read as follows:

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

Subpart GG--New Mexico

2. In section 52.1620(e), the table is amended by adding section

74-1-4 at the beginning of the table, by revising section 74-2-4, and

by adding new sections to the table after section 74-2-17.

Sec. 52.1620 Identification of plan.

* * * * *

(e) * * *

EPA Approved New Mexico Statutes in the Current New Mexico SIP

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State approval/

State citation Title/subject effective date EPA approval date Comments

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NMSA 1978--New Mexico Statutes in the New Mexico SIP

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74-1-4........................ Environmental 04/20/90 June 1, 1999..........

Improvement Board--

Creation--Organizatio

n.

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* * * * * *

*

74-2-4........................ Municipal or County 04/20/90 June 1, 1999..........

Air Quality Control

Board.

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* * * * * *

*

Article 16, Sections 10-16-1 New Mexico Conflict of 07/16/90 June 1, 1999..........

through 10-16-16. Interest Act.

Article 16, Supplemental...... New Mexico 07/16/90 June 1, 1999..........

Environmental

Improvement Board

Code of Conduct.

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EPA Approved City of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of

Interest Provisions

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City of Albuquerque, Chapter Metropolitan 11/16/90 June 1, 1999..........

6, Article XVII Sections 6-17- Environmental Health

1 to 6-17-3. Advisory Board.

Bernalillo County Commission Metropolitan 08/05/74 June 1, 1999..........

Ordinance 302. Environmental Health

Advisory Board.

Bernalillo County Commission Metropolitan 08/21/90 June 1, 1999.......... Amended

Ordinance 90-19. Environmental Health Ordinance 302.

Advisory Board.

City of Albuquerque, Chapter Joint Air Quality 08/01/89 June 1, 1999..........

6, Article XVI Sections 6-16- Control Board

1 to 6-16-15. Ordinance.

Bernalillo County Commission Joint Air Quality 12/27/88 June 1, 1999.......... Amended

Ordinance 88-45. Control Board Ordinance 84-

Ordinance. 44.

City of Albuquerque Chapter 1, Public Boards, 07/01/87 June 1, 1999..........

Article XII Sections 1-12-1 Commissions and

to 1-12-3. Committees.

[[Page 29240]]

City of Albuquerque Chapter 2, Conflict of Interest.. 07/01/85 June 1, 1999..........

Article III Sections 2-3-1 to

2-3-13.

City of Albuquerque Charter, Code of Ethics........ 04/01/90 June 1, 1999..........

Article XII.

Bernalillo County Commission Code of Ethics........ 02/05/85 June 1, 1999..........

Ordinance 85-3.

City of Albuquerque Code of City Code of Conduct.. 02/09/90 June 1, 1999..........

Conduct.

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[FR Doc. 99-13379 Filed 5-28-99; 8:45 am]

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