[Federal Register Volume 62, Number 179 (Tuesday, September 16, 1997)]
[Proposed Rules]
[Pages 48587-48588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24552]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-24-1-7102; FRL-5892-7]


Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Proposed Approval of a Revision to the New Mexico State 
Implementation Plan--Enhanced Monitoring Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Pursuant to section 110 of the Clean Air Act (the Act), as 
amended in 1990, EPA is proposing to approve revisions to the New 
Mexico State Implementation Plan (SIP) addressing revisions to Air 
Quality Control Regulation (AQCR) 702 concerning permits. The State's 
revision expands the types of testing and monitoring data, including 
stack and process monitoring, which can be used directly for compliance 
certifications and enforcement.

DATES: Comments on this proposed action must be received in writing on 
or before October 16, 1997.

ADDRESSES: Comments should be mailed to Jole C. Luehrs, Chief, Air 
Permits Section (6PD-R), EPA, Region 6, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. Copies of the documents relevant to this 
action are available for public inspection during normal business hours 
at the following locations:
    EPA, Air Permits Section (6PD-R), 1445 Ross Avenue, Suite 700, 
Dallas, Texas, 75202-2377.
    New Mexico Environmental Improvement Board, 1190 St. Francis Drive, 
Santa Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Mary Stanton, Air Permits Section 
(6PD-R), EPA, Dallas, Texas, 75202-2377, telephone (214) 665-8377.

SUPPLEMENTARY INFORMATION:

I. Background

    The EPA has published a number of ``reference test methods'' and, 
in order to assure uniformity in the application of emission standards, 
has required sources to establish compliance with emission standards by 
use of those reference test methods. In theory, a source would conduct 
testing on a periodic basis utilizing these methods and would rely on 
the comprehensive nature of this testing to assure compliance on a day 
to day basis.
    In the interim, more accurate emission monitoring devices have been 
developed. In addition, EPA, the States, and the regulated community 
have gained a better understanding of the specific facility and 
pollution control device operating parameters that control emissions. 
Many sources currently determine compliance with permitted limits 
either through the use of continuous emission monitors or by monitoring 
key parameters of their production processes and pollution control 
devices.
    Section 113(a) of the Act provides that the Agency may bring an 
enforcement action on the basis of any information available. However, 
in United States versus Kaiser Steel Corporation, the District Court 
ruled that, because of what it perceived to be limitations in EPA's 
regulations, only reference method stack testing could be used to 
establish violations of permit limits, notwithstanding irrefutable 
scientific evidence that otherwise demonstrated thousands of 
violations. In the 1990 amendments to the Act, Congress overrode the 
United States versus Kaiser Steel Corporation decision, providing that 
the duration of the violation could be established by any credible 
evidence (including evidence other than the applicable test method).
    The EPA believes that existing SIPs (nationwide) are inadequate for 
States or EPA to fully implement the Act, because the SIPs may 
presently be interpreted to limit the types of testing or monitoring 
data that may be used for determining compliance and establishing 
violations. On June 9, 1994, EPA issued a call to the State of New 
Mexico to revise its SIP to clarify that any monitoring approved for 
the source (and included in a Federally enforceable operating permit) 
may form the basis of the compliance certification, and that any 
credible evidence may be used for purposes of enforcement in Federal 
court.

II. EPA Evaluation

    On November 10, 1994, New Mexico made an official plan submission 
in response to EPA's SIP call. New Mexico submitted revisions to AQCR 
702, which provides that data which has been collected under the 
enhanced monitoring and Operating Permit programs can be used for 
compliance certifications and enforcement actions. Specifically, 
section R of the revisions to AQCR 702 authorizes this data to be used 
for compliance certifications, and section S authorizes this data to be 
considered for enforcement actions.
    This revision will enhance the State's capability for determining 
compliance with, and for establishing violations of, the underlying 
emission limitations.

III. Proposed Action

    The EPA reviewed these revisions to the New Mexico SIP and is 
proposing to approve sections R and S of AQCR 702 as submitted because 
they meet the requirements of section 110 of the Act. The EPA is 
requesting comments on all aspects of the requested SIP revision and 
EPA's proposed rulemaking action. The EPA will consider any timely 
submitted comments prior to EPA's taking final action on this proposed 
rule. Comments received by the date indicated above will be considered 
in the development of EPA's final rule.
    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 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register (FR) on January 19, 1989 (54 FR 2214-2225), as revised 
by a July 10, 1995, memorandum from 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 Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government 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

[[Page 48588]]

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 any small entities affected. 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 
Company. v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 
7410(a)(2).

C. Unfunded Mandates

    Under sections 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 proposed 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 
Federal requirements.
    Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Enhanced 
monitoring, Incorporation by reference, Intergovernmental relations.

    Authority: 42 U.S.C. sections 7401-76718.

    Dated: August 15, 1997.
Jerry Clifford,
Acting Regional Administrator.
[FR Doc. 97-24552 Filed 9-15-97; 8:45 am]
BILLING CODE 6560-50-P