[Federal Register Volume 64, Number 185 (Friday, September 24, 1999)]
[Rules and Regulations]
[Pages 51691-51694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24688]


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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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