[Federal Register Volume 71, Number 104 (Wednesday, May 31, 2006)]
[Rules and Regulations]
[Pages 30805-30809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4921]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-NM-0003; FRL-8175-6]


Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Albuquerque/Bernalillo County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The EPA is approving two separate State Implementation Plan 
(SIP) revisions submitted by the Governor of New Mexico. The first 
submittal, dated September 7, 2004, adopts local Ambient Air Quality 
Standards (AAQS) and incorporates by reference the Federal National Air 
Quality Standards (NAAQS) for the Albuquerque/Bernalillo County, New 
Mexico area. The second submittal,

[[Page 30806]]

dated July 28, 2005, revises the Variance Procedure for the 
Albuquerque/Bernalillo County, New Mexico area. We are approving these 
two separate revisions in accordance with the requirements of the Clean 
Air Act (the Act), section 110.

DATES: This direct final rule is effective on July 31, 2006 without 
further notice, unless EPA receives relevant adverse comment by June 
30, 2006. If EPA receives such comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that this rule 
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2005-NM-0003, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    U.S. EPA Region 6 ``Contact Us'' web site: http://epa.gov/region6/r6coment.htm Please click on ``6PD'' (Multimedia) and select ``Air'' 
before submitting comments.
    E-mail: Mr. Thomas Diggs at [email protected]. Please also cc 
the person listed in the FOR FURTHER INFORMATION CONTACT section below.
    Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), at fax 
number 214-665-7263.
    Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), 
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, 
Texas 75202-2733.
    Hand or Courier Delivery: Mr. Thomas Diggs, Chief, Air Planning 
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, 
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only 
between the hours of 8 a.m. and 4 p.m. weekdays except for legal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2005-NM-0003. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Planning Section 
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, 
Dallas, Texas 75202-2733. The file will be made available by 
appointment for public inspection in the Region 6 FOIA Review Room 
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal 
holidays. Contact the person listed in the FOR FURTHER INFORMATION 
CONTACT paragraph below to make an appointment. If possible, please 
make the appointment at least two working days in advance of your 
visit. There will be a 15 cent per page fee for making photocopies of 
documents. On the day of the visit, please check in at the EPA Region 6 
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment:
    The City of Albuquerque, Environmental Health Department, One Civic 
Plaza, Albuquerque, NM 87102.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar of the Air Planning 
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733 at (214) 665-6691, or 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Evaluation of New Mexico's Submittal
    A. 20.11.8 NMAC, Ambient Air Quality Standards
    B. 20.11.7 NMAC, Variance Procedure
III. Final Action
IV. Statutory and Executive Order Reviews

    Throughout this document ``we,'' ``us,'' and ``our'' refer to EPA.

I. Background

    A revision to the New Mexico SIP concerning Title 20, Chapter 11, 
Part 8 of the New Mexico Administrative Code (20.11.8 NMAC) was 
submitted to us by the Governor of New Mexico on September 7, 2004. 
This SIP revision establishes and adopts local AAQS for the 
Albuquerque/Bernalillo County, New Mexico area. These AAQS are similar 
to the New Mexico AAQS adopted by the New Mexico Environment Department 
(NMED). It also incorporates by reference the Federal NAAQS at 40 CFR 
part 50, as amended through July 18, 1997.
    The EPA approved the NMED-adopted state AAQS and incorporated 
Federal NAAQS in Title 20, Chapter 2, Air Quality, Part 3 Ambient Air 
Quality Standards on 09/26/97 (62 FR 50518) at Sec.  52.1620(c)(66) and 
became effective 11/25/1997 for the State of New Mexico excluding the 
Albuquerque/Bernalillo County area. See our Technical Support Document 
(TSD) prepared in conjunction with this SIP revision for more 
information concerning our evaluation of this part.
    Initially, EPA approved the New Mexico Regulation 24 Variance 
Procedure for the Albuquerque/Bernalillo County area on April 10, 1980. 
See April 10, 1980 (45 FR 24460) at Sec.  52.1620(c)(11) to (c)(15). 
The Albuquerque/Bernalillo Board adopted and replaced its Variance 
Procedure rules on October 1, 2002 as Title 20, Chapter 11, Part 7 
(20.11.7 NMAC) and adopted changes on August 1, 2004. A revision to the 
New Mexico SIP 20.11.7 NMAC concerning Variance Procedure for the 
Albuquerque/Bernalillo County area was submitted to us by the Governor 
of New Mexico on July 28, 2005. This SIP revision makes the Variance 
Procedure more stringent than the original SIP-approved rule. Among 
other things, it precludes issuance of variances from enumerated 
Federal emissions limitations and programs, and clarifies that approval 
or granting of a variance does not mean automatic approval by the EPA, 
for the Albuquerque/Bernalillo County area.

[[Page 30807]]

II. Evaluation of New Mexico's Submittal

A. 20.11.8 NMAC, Ambient Air Quality Standards

    A revision to the New Mexico SIP concerning 20.11.8 NMAC was 
submitted to us by the Governor of New Mexico on September 7, 2004. 
This SIP revision establishes and adopts local AAQS for the 
Albuquerque/Bernalillo County. It also incorporates by reference the 
federal NAAQS as amended through July 18, 1997. The current Federally-
approved SIP, for the Albuquerque/Bernalillo County area, does not 
contain the local or National AAQS for this area. As stated in section 
I of this document, the local standards we are approving today are 
similar to those that EPA has already approved for the remaining parts 
of the New Mexico State. See September 26, 1997 (62 FR 50518). The 
local AAQS are for hydrogen sulfide, total reduced sulfur, a 24-hour 
average for nitrogen dioxide, a 24-hour average, 7-day average, 30-day 
average, and annual geometric mean for particulate matter, and 
limitations more stringent than the Federal NAAQS for the 8-hour and 1-
hour average for carbon monoxide, and the 24-hour average and annual 
arithmetic mean for sulfur dioxide. Approval of these local standards 
will lead to improved air quality. We are approving the incorporation 
of the Federal NAAQS because it will make the Albuquerque/Bernalillo 
County SIP consistent with the latest Federally-promulgated NAAQS.
    This SIP revision will provide for consistency between the NMED-
adopted SIP and the Albuquerque/Bernalillo County SIP. Thus, by 
approving the SIP revision, all sources within the County that are 
emitting, or wish to emit, any of the locally regulated pollutants and 
precursors are required to comply with the same AAQS as all sources 
anywhere within the geographical boundaries of the State. This SIP 
revision will enhance the County's air quality. This SIP revision will 
add more stringent requirements to the current Federally-approved SIP 
and ensure that the SIP contains the most up-to-date Federal NAAQS. For 
these reasons, we are approving, as a part of the SIP, the local AAQS 
for the Albuquerque/Bernalillo County, New Mexico area under sections 
110 and 116, and approving the incorporation of the Federal NAAQS under 
section 110 of the Act.

B. 20.11.7 NMAC, Variance Procedure

    A revision to the New Mexico SIP concerning 20.11.7 NMAC was 
submitted to us by the Governor of New Mexico on July 28, 2005. This 
SIP revision includes a rule that replaces and revises the previous 
Variance Procedure rule and imposes additional restrictions on the 
Variance Procedures for the Albuquerque/Bernalillo County area.
    As stated in section I of this document, EPA initially approved the 
New Mexico Regulation 24 Variance Procedure for the Albuquerque/
Bernalillo County area on April 10, 1980 (45 FR 24460). The Variance 
Procedure rule, adopted in 2002 and revised in 2004, adds more 
extensive public participation requirements, including several forms of 
public notification, newspaper publications, public comment periods, 
and adds a requirement for an evidentiary hearing versus a public 
comment hearing. The granting of a variance still cannot either result 
in a condition injurious to health or safety, or cause or contribute to 
an air contaminant level in excess of any primary NAAQS. The 
petitioner, however, now has the burden of proof in the evidentiary 
hearing to show the need for a variance and now must prove by a 
preponderance of evidence the facts relied upon to justify the 
requested relief. Another significant improvement is that there no 
longer is an automatic stay of enforcement pending the Board's 
decision. Sections 20.11.7.2 (Scope) and 20.11.7.6 (Objective) add the 
requirement to this SIP revision that variance from a limitation, 
order, or permit condition does not apply to enumerated Federally 
promulgated emissions standards and programs; e.g., the requirements to 
obtain a minor preconstruction permit, a nonattainment preconstruction 
permit, a Prevention of Significant Deterioration preconstruction 
permit, or an operating permit and the requirements to meet the Federal 
acid rain program, the Federal New Source Performance Standards, and 
the Federal National Emission Standards for Hazardous Air Pollutants. 
Furthermore, section 20.11.7.2 (Scope) specifies that approval or 
granting of a variance to a source does not mean automatic approval by 
EPA. Our TSD prepared in conjunction with this SIP revision contains 
detailed information concerning our evaluation of this part. This SIP 
revision greatly improves the current Federally-approved SIP rule, adds 
many more safeguards to protect the existing air quality, e.g., no 
automatic stay of enforcement, no variance from Federal programs, more 
stringent public participation, and evidentiary hearings. We find that 
approving 20.11.7 NMAC into the SIP meets section 110(l) of the Act. 
For this reason, we are approving, as a part of the SIP, the Variance 
Procedure 20.11.7 NMAC, as adopted in 2002 and revised in 2004, for the 
Albuquerque/Bernalillo County, New Mexico area.

III. Final Action

    The EPA is approving the revisions to the New Mexico's Albuquerque/
Bernalillo County SIP because the revisions are consistent with the Act 
and EPA regulatory requirements. The EPA is publishing this rule 
without prior proposal because the EPA views this as a non-
controversial submittal and anticipates no adverse comments. However, 
in the proposed rules section of this Federal Register publication, EPA 
is publishing a separate document that will serve as the proposal to 
approve the SIP revision should adverse comments be filed. This rule 
will be effective July 31, 2006 without further notice, unless EPA 
receives relevant adverse comment by June 30, 2006.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on July 31, 2006, and no 
further action will be taken on the proposed rule.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small

[[Page 30808]]

governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 31, 2006. 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, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: May 19, 2006.
Richard E. Greene,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart GG--New Mexico

0
2. Section 52.1620, paragraph (c), the second table entitled ``EPA 
Approved Albuquerque/Bernalillo County, NM Regulations,'' is amended by 
revising the entry for Part 7 and adding an entry for Part 8 to read as 
follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                           EPA-Approved Albuquerque/Bernalillo County, NM Regulations
----------------------------------------------------------------------------------------------------------------
                                                               State
                                                             approval/       EPA  approval
         State citation               Title/subject          effective           date             Explanation
                                                               date
----------------------------------------------------------------------------------------------------------------
                         Albuquerque/Bernalillo County, Air Quality Control Regulations
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
New Mexico Administrative Code (NMAC) Title 20--Environment Protection, Chapter 11-Albuquerque/Bernalillo County
                                            Air Quality Control Board
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Part 7 (20.11.7 NMAC)..........  Variance Procedure.....        09/07/04  05/31/06 [Insert
                                                                           FR page where
                                                                           document begins].
Part 8 (20.11.8 NMAC)..........  Ambient Air Quality            09/07/04  05/31/06 [Insert
                                  Standards.                               FR page where
                                                                           document begins].
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 30809]]

[FR Doc. 06-4921 Filed 5-30-06; 8:45 am]
BILLING CODE 6560-50-P