Approval and Promulgation of Air Quality Implementation Plans; New Mexico Update to Materials Incorporated by Reference

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-35-1-7428; FRL-6441-3]

Approval and Promulgation of Air Quality Implementation Plans;

New Mexico Update to Materials Incorporated by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of administrative change.

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SUMMARY: The EPA is updating the materials submitted by New Mexico that

are incorporated by reference (IBR) into the State Implementation Plan

(SIP). The regulations affected by this update have been previously

submitted by the State agency and approved by EPA. This update affects

the SIP materials that are available for public inspection at the

Office of the Federal Register (OFR), the Air and Radiation Docket and

Information Center located in Waterside Mall, Washington, D.C., and the

Regional Office.

EFFECTIVE DATE: This action is effective September 24, 1999.

ADDRESSES: The SIP materials, which are incorporated by reference into

40 CFR part 52, are available for inspection at the following

locations:

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700,

Dallas, Texas 75202-2733;

Office of Air and Radiation, Docket and Information Center (Air

Docket), EPA, 401 M Street, SW, Room M1500, Washington, DC 20460; and

Office of the Federal Register, 800 North Capitol Street, NW, Suite

700, Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Scoggins at the above Region

6 address or at (214)-665-7354.

SUPPLEMENTARY INFORMATION: The SIP is a living document which the state

can revise as necessary to address the unique air pollution problems in

the state. Therefore, EPA from time to time must take action on SIP

revisions containing new and/or revised regulations as being part of

the SIP. On May 22, 1997 (62 FR 27968) EPA revised the procedures for

incorporating by reference Federally-approved SIPs, as a result of

consultations between EPA and OFR. The description of the revised SIP

document, IBR procedures and ``Identification of plan'' format are

discussed in further detail in the May 22, 1997, Federal Register

document.

On July 13, 1998, EPA published a document in the Federal Register

(63 FR 37493) beginning the new IBR procedure for New Mexico. In this

document EPA is doing the first update to the material being IBRed. On

September 9, 1998, (63 FR 48106), EPA published a final rule

conditionally approving a revision to the New Mexico SIP that contained

regulations for implementing and enforcing the general conformity rules

which the EPA promulgated on November 30, 1993 (58 FR 63214). On June

1, 1999 (64 FR 29235), EPA published a direct final approval document

approving revisions to the New Mexico SIP of Board composition and

conflict of interest disclosure requirements for the State of New

Mexico and for Albuquerque/Bernalillo County, NM. The rule became

effective August 2, 1999. In both documents EPA also updated the

Identification of plan section for the Code of Federal Regulations.

In this document EPA is updating the SIP compilation that is

incorporated by reference. Table (d) is being added to identify

permitted sources in the SIP and table (e) is being revised to include

more identification of plan information that was not included in the

original July 13, 1998, Federal Register document.

The EPA has determined that today's rule falls under the ``good

cause'' exemption in section 553(b)(3)(B) of the Administrative

Procedures Act (APA) which, upon finding ``good cause,'' authorizes

agencies to dispense with public participation and section 553(d)(3)

which allows an agency to make a rule effective immediately (thereby

avoiding the 30-day delayed effective date otherwise provided for in

the APA). Today's rule simply codifies provisions which are already in

effect as a matter of law in Federal and approved State programs.

Under section 553 of the APA, an agency may find good cause where

procedures are ``impractical, unnecessary, or contrary to the public

interest.'' Public comment is unnecessary and contrary to the public

interest since the codification only reflects existing law. Immediate

notice in the CFR benefits the public by updating citations.

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. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget 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 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 duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria,

[[Page 51692]]

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 action is not subject to E.O. 13045 because it approves a

state rule implementing a previously promulgated health or safety-based

Federal standard, and preserves the existing level of pollution control

for the affected areas.

D. Executive Order 13084

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

required by statute, that significantly affects 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. If the mandate is unfunded,

EPA must 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 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.'' This rule

does not significantly or uniquely affect the communities of Indian

tribal governments. 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 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 Clean Air Act (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 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. 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.

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 pre-existing 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 cannot

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).

H. Petitions for Judicial Review

The EPA has also determined that the provisions of section

307(b)(1) of the Clean Air Act pertaining to petitions for judicial

review are not applicable to this action. Prior EPA rulemaking actions

for each individual component of the New Mexico SIP compilations had

previously afforded interested parties the opportunity to file a

petition for judicial review in the United States Court of Appeals for

the appropriate circuit within 60 days of such rulemaking action. Thus,

EPA sees no need in this action to reopen the 60-day period for filing

such petitions for judicial review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: September 2, 1999.

Jerry Clifford,

Acting Regional Administrator, Region 6.

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

amended as follows:

PART 52--[AMENDED]

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

follows:

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

Subpart GG--New Mexico

2. Section 52.1620 is amended by:

A. Revising paragraph (b);

B. Adding paragraph (d); and

C. Adding a new table at the end of paragraph (e).

The revisions and additions read as follows:

Sec. 52.1620 Identification of plan.

* * * * *

(b) Incorporation by reference. (1) Material listed in paragraphs

(c) and (d) of this section with an EPA approval date prior to July 1,

1999, was approved for incorporation by reference by the Director of

the Federal Register in accordance with 5 U.S.C. 552(a) and 1

[[Page 51693]]

CFR part 51. Material is incorporated as it exists on the date of the

approval, and notice of any change in the material will be published in

the Federal Register. Entries in paragraphs (c) and (d) of this section

with EPA approval dates after July 1, 1999, will be incorporated by

reference in the next update to the SIP compilation.

(2) EPA Region 6 certifies that the rules/regulations provided by

EPA in the SIP compilation at the addresses in paragraph (b)(3) are an

exact duplicate of the officially promulgated State

rules/regulations which have been approved as part of the State

implementation plan as of July 1, 1999.

(3) Copies of the materials incorporated by reference may be

inspected at the Region 6 EPA Office at 1445 Ross Avenue, Suite 700,

Dallas, Texas, 75202-2733; the EPA, Air and Radiation Docket and

Information Center, Air Docket (6102), 401 M Street, SW., Washington,

DC. 20460; or at the Office of Federal Register, 800 North Capitol

Street, NW., Suite 700, Washington, DC.

* * * * *

(d) EPA-approved State Source-specific requirements.

EPA-Approved New Mexico Source-Specific Requirements

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State approval/ EPA approval

Name of source Permit number effective date date Explanation

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None......................... ................ ................ ............... ............................

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(e) * * *

EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP

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Applicable

geographic or State submittal/ EPA approval

Name of SIP provision nonattainment effective date date Explanation

area

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State Attorney Generals Statewide...... 09/04/72....... 04/09/79, 44 FR Ref 52.1640(c)(4).

Opinion. 21020.

Revisions to New Source Statewide...... 01/03/73....... 04/09/79, 44 FR Ref 52.1640(c)(5).

Review and Source 21020.

Surveillance.

Clarification of State permit Statewide...... 01/18/73....... 04/09/79, 44 FR Ref 52.1640(c)(6).

and Source Surveillance. 21020.

Revision for Attainment of PM in 01/23/79....... 04/10/80, 45 FR Ref 52.1640(c)(11).

Standards. Albuquerque, 24468 and 03/

Grant, Eddy 26/81, 46 FR

and Lea 18694.

counties;

Ozone in

Albuquerque;

SO2 in San

Juan and Grant

counties; and

CO in Las

Cruces,

Farmington,

and Santa Fe

counties.

Ordinance for Motor Vehicle Albuquerque.... 07/02/79....... 04/10/80, 45 FR Ref 52.1640(c)(12).

Emission I/M program. 24468.

TSP Plan, RFP, and Albuquerque.... 08/02/79....... 04/10/80, 45 FR Ref 52.1640(c)(13).

Transportation Commitments. 24468.

Schedule for Albuquerque TSP Albuquerque and 09/25/79....... 04/10/80, 45 FR Ref 52.1640(c)(14).

plan, revising permit Grant county. 24468.

regulations, and extension

request.

CO Strategies................ Farmington and 01/23/79....... 04/10/80, 45 FR Ref 52.1640(c)(15).

Santa Fe 24468.

counties.

Compliance schedules for Eddy, Lea, and 07/25/79....... 12/24/80, 45 FR Ref 52.1640(c)(16).

several industries. Grant counties. 85006.

Revision for attainment of CO Bernalillo 03/17/80....... 03/26/81, 46 FR Ref 52.1640(c)(17).

standard. county. 18694.

Commitment to not issue Nonattainment 05/20/80....... 03/26/81, 46 FR Ref 52.1640(c)(18).

permits to stationary areas. 18694.

sources.

Commitment to submit I/M Albuquerque, 10/10/80....... 03/26/81, 46 FR Ref 52.1640(c)(19).

enforcement plan. Bernalillo 18694.

county.

Revision to ambient Statewide...... 12/12/79....... 08/06/81, 46 FR Ref 52.1640(c)(20).

monitoring plan. 40006.

Variance to regulation 506 Hidalgo Smelter 02/04/80....... 08/19/81, 46 FR Ref 52.1640(c)(21).

for Phelps Dodge Corp. in Playas, NM. 42065.

Revised SO2 control strategy. San Juan county 02/12/81....... 08/27/81, 46 FR Ref 52.1640(c)(22).

43153.

Memorandum of understanding Statewide...... 04/16/81....... 08/27/81, 46 FR Ref 52.1640(c)(22).

between the State and 43153.

Arizona Public Service

Company.

Compliance schedule for units Four Corners 03/31/80....... 03/30/82, 47 FR Ref 52.1640(c)(23).

4 and 5 of the Arizona Power plant. 13339.

Public Service.

[[Page 51694]]

Variance to regulation 603 Four Corners 07/31/80....... 03/30/82, 47 FR Ref 52.1640(c)(25).

for units 3, 4, and 5 of the Power plant. 13339.

Arizona Public Service.

New Mexico plan for Lead..... Statewide...... 05/19/80....... 05/05/82, 47 FR Ref 52.1640(c)(27).

19334 and 08/

14/84, 49 FR

32184.

Revision to SO2 control Grant county... 05/12/81 and 08/ 05/05/82, 47 FR Ref 52.1640(c)(28).

strategy. 13/81. 19333.

Intergovernmental N/A............ 03/28/80....... 03/08/84, 49 FR Ref 52.1640(c)(31).

Consultation program. 08610.

Public Information and Statewide...... 12/20/79....... 08/24/83, 48 FR Ref 52.1640(c)(33).

Participation program. 38467.

Revision for attainment of CO Bernalillo 06/28/82 and 01/ 07/01/83, 48 FR Ref 52.1640(c)(34).

standard. county. 26/83. 30366.

Variance to regulation 603.B Four Corners 02/04/87, 10/26/ 10/27/89, 54 FR Ref 52.1640(c)(38).

for units 3, 4, and 5 of the Power Plant. 87, and 02/16/ 43814.

Arizona Public Service. 88.

Revision to SIP for moderate Anthony area; 11/08/91....... 09/09/93, 58 FR Ref 52.1640(c)(50).

PM10 nonattainment areas. Dona Ana 47383.

county.

Narrative plan addressing CO Albuquerque, 11/05/92....... 11/29/93, 58 FR Ref 52.1640(c)(52).

nonattainment areas. Bernalillo 62535.

county.

CO continency measures and Albuquerque, 11/12/93....... 05/05/94, 59 FR Ref 52.1640(c)(57).

proposed Clean Fuel Vehicle Bernalillo 23167.

fleet demonstration. county.

Update to supplement to Bernalillo 11/09/94....... 06/24/96, 61 FR Ref 52.1640(c)(61).

control air pollution. county. 32339.

Revision approving request Albuquerque, 05/11/95....... 06/13/96, 61 FR Ref 52.1640(c)(63).

for redesignation, a vehicle Bernalillo 29970.

I/M program, and required nonattainment

maintenance plan. area.

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[FR Doc. 99-24688 Filed 9-23-99; 8:45 am]

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