[Federal Register Volume 84, Number 39 (Wednesday, February 27, 2019)]
[Rules and Regulations]
[Pages 6334-6338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02862]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2015-0850; FRL-9989-09-Region 6]


Air Plan Approval; New Mexico; Approval of Revised Statutes; 
Error Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving revisions to New 
Mexico's State Implementation Plan (SIP) that incorporate updates to 
the New Mexico statutes. EPA is also correcting its previous approval 
of some statute provisions as approval of these provisions into the SIP 
was in error.

DATES: This rule is effective on May 28, 2019 without further notice, 
unless the EPA receives relevant adverse comment by March 29, 2019. If 
the EPA receives such comment, the 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 No. EPA-R06-OAR-
2015-0850, at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Jeff Riley, (214) 665-
8542, [email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 6, 
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the 
docket are listed in the index, some information may be publicly 
available only at the hard copy location (e.g., copyrighted material), 
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Jeff Riley, (214) 665-8542, 
[email protected]. To inspect the hard copy materials, please 
schedule an appointment with Jeff Riley or Mr. Bill Deese at (214) 665-
7253.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

A. CAA and SIPs

    Section 110 of the CAA requires states to develop and submit to the 
EPA a SIP to ensure that state air quality meets National Ambient Air 
Quality Standards. These ambient standards currently address six 
criteria pollutants: carbon monoxide, nitrogen dioxide, ozone, lead, 
particulate matter, and sulfur dioxide. Each federally-approved SIP 
protects air quality primarily by addressing air pollution at its point 
of origin through air pollution regulations and control strategies. The 
EPA approved SIP regulations and control strategies are federally 
enforceable.

B. New Mexico's Submittals

    On August 6, 2015, the New Mexico Environment Department (NMED) 
provided a demonstration of how the existing New Mexico SIP met the 
applicable section 110(a)(2) requirements for the revised primary 
annual fine particulate matter (PM2.5) National Ambient Air 
Quality Standard (NAAQS) promulgated on December 14, 2012 (78 FR 3085, 
January 15,2013). Additionally, NMED provided updates to statutes 
originally approved into the SIP on November 2, 1984 (49 FR 44099). 
Sections 110(a)(2)(E)(ii) and 128 of the CAA require SIPs to contain 
statutory or regulatory provisions that: (1) Any board or body which 
approves permits or enforcement orders under the CAA have at least a 
majority of its members represent the public interest and not derive 
any significant portion of their income from persons subject to permits 
or enforcement orders under the CAA; and (2) any potential conflict of 
interest by members of such board or body or the head of an executive 
agency with similar powers be adequately disclosed. EPA approved 
updates to statutes under New Mexico Statutes Annotated 1978 (NMSA) 
Chapter 10, Article 16 and NMSA 1978 Chapter 74, Articles 1 & 2 to 
satisfy the CAA sections 110(a)(2)(E)(ii) and 128 requirements. 
However, the August 6, 2015 State submittal included other updated 
statutes under NMSA 1978 Chapter 9, Article 7A and NMSA 1978 Chapter 
74, Articles 1 & 2 that EPA did not act upon. See EPA's proposal (82 FR 
60933, December 26, 2017) and final approval (83 FR 12493, March 22, 
2018) for further detail.

C. Error Corrections Under CAA Section 110(k)(6)

    Section 110(k)(6) of the CAA provides EPA with the authority to 
make corrections to prior SIP actions that are subsequently found to be 
in error in the same manner as the prior action, and to do so without 
requiring any further submission from the State. On March 6, 2013, the 
Eleventh Circuit Court of Appeals issued a 2-1 decision relevant to EPA 
authority under Section 110(k)(6). See Alabama Environmental Council v. 
EPA, 711 F.3d 1277 (11th Cir. 2013). The majority opinion found that 
CAA section 110(k)(6) permits EPA to revise a SIP provision approved 
``in error'' without any further submission from the State, so long as 
EPA provides the State and the public with its error determination and 
the basis thereof. This affirms EPA's authority to use

[[Page 6335]]

section 110(k)(6) to revise a prior action related to a state's 
implementation plan. See 711 F3d at 1287.
    While CAA section 110(k)(6) provides EPA with the authority to 
correct its own ``error,'' nowhere does this provision or any other 
provision in the CAA define what qualifies as ``error.'' Thus, EPA 
believes that the term should be given its plain language, everyday 
meaning, which includes all unintentional, incorrect or wrong actions 
or mistakes.

D. What criteria must be met for the EPA to approve this SIP revision?

    Under section 110(a)(2) of the CAA, states are required to develop 
and maintain an air quality management program that meets various basic 
structural requirements, including, but not limited to: enforceable 
emission limitations; an ambient monitoring program; an enforcement 
program; air quality modeling capabilities; and adequate personnel, 
resources, and legal authority as per 40 CFR 51.230. This 
``infrastructure SIP'' requirement is met through state submittal of 
SIPs that implement, maintain, and enforce a new or revised NAAQS 
within 3 years of EPA issuing the standard. An air agency may cite 
existing EPA-approved provisions and/or adopt new or revised statutory 
authorities and regulations, as necessary, in order to address each 
element of the infrastructure SIP.\1\ In accordance with 40 CFR 51.231, 
the infrastructure SIP submission should identify the provisions of law 
or regulations that the air agency determines provide the necessary 
authority, and the air agency should submit copies of those laws or 
regulations with the infrastructure SIP submission.
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    \1\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013, https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
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II. The EPA's Evaluation

    As noted above, EPA's March 22, 2018 final action approved updates 
to statutes under NMSA 1978 Chapter 10, Article 16 and NMSA 1978 
Chapter 74, Articles 1 & 2 to satisfy the CAA sections 110(a)(2)(E)(ii) 
and 128 requirements. However, the August 6, 2015 State submittal also 
included updated statutes under NMSA 1978 Chapter 9, Article 7A and 
NMSA 1978 Chapter 74, Articles 1 & 2 that EPA did not act upon. EPA has 
evaluated these remaining updated statues against the criteria 
established by section 110(a)(2) of the CAA to determine if these 
provisions are integral to meeting the basic structural requirements of 
an air quality management program. Similarly, EPA has evaluated the 
SIP-approved statutes under NMSA 1978 Chapter 74, Articles 1 and 2 to 
determine if elements of our November 2, 1984 final approval were in 
error and should therefore be removed from the New Mexico SIP. Below is 
a summary of EPA's evaluation; see our Technical Support Document (TSD) 
prepared in conjunction with this SIP revision for more information 
concerning our evaluation.
    EPA has determined that the State's updates to the NMSA 1978 
sections represented in Table 1 grant the Environmental Improvement 
Board (EIB) and/or NMED with authority for SIP development, 
enforcement, inspections, construction and operating permits, air 
monitoring, development of air quality studies and modeling, reporting, 
consultation, assurance of adequate implementation, and addressing of 
environmental emergencies.

   Table 1--August 6, 2015 Updates to NMSA 1978 Chapter 74, Article 2
                 Sections for Approval to New Mexico SIP
------------------------------------------------------------------------
       NMSA 1978 section              Title               Content
------------------------------------------------------------------------
74-2-1........................  Short Title......  Identifies NMSA 1978
                                                    Chapter 74, Article
                                                    2 as Air Quality
                                                    Control Act (AQCA).
74-2-2........................  Definitions......  Definitions used in
                                                    AQCA.
74-2-3........................  Environmental      Establishes
                                 improvement        jurisdiction of EIB.
                                 board.
74-2-5........................  Duties and         Grants EIB authority
                                 powers;            for SIP development,
                                 environmental      enforcement, air
                                 improvement        monitoring,
                                 board; local       reporting, assurance
                                 board.             of adequate
                                                    implementation.
74-2-7........................  Permits..........  Provides EIB with
                                                    authority for
                                                    construction and
                                                    operating permits.
74-2-10.......................  Emergency powers   Provides NMED with
                                 of the secretary   authority to address
                                 and the director.  environmental
                                                    emergencies.
74-2-11.1.....................  Limitations on     Specifies limitations
                                 regulations.       to EIB and local
                                                    board authorities,
                                                    jurisdictions.
74-2-17.......................  Continuing effect  Establishes
                                 of existing        precedence of AQCA
                                 laws, rules and    over any conflicting
                                 regulations.       legislation.
------------------------------------------------------------------------

    These sections establish an air quality management program for New 
Mexico that meets the various basic structural requirements of CAA 
section 110(a)(2), and therefore their inclusion into the SIP is 
warranted and appropriate. We find the State's submitted revisions to 
these sections to be non-substantive and consistent with the CAA. EPA 
is approving these revisions into the New Mexico SIP.
    EPA has determined that our November 2, 1984 final approval of the 
NMSA 1978 sections represented in Table 2 was done in error, and these 
sections should therefore be removed from the New Mexico SIP.

 Table 2--NMSA 1978 Chapter 74, Article 2 Sections for Removal From New
                               Mexico SIP
------------------------------------------------------------------------
       NMSA 1978 section              Title          Reason for removal
------------------------------------------------------------------------
74-2-6........................  Adoption of        Administrative
                                 Regulations;       requirements,
                                 Notice and         hearing board
                                 Hearings.          procedures.
74-2-8........................  Variances........  Inconsistent with
                                                    federally-
                                                    enforceable
                                                    requirements.
74-2-9........................  Variances--Judici  Inconsistent with
                                 al Review.         federally-
                                                    enforceable
                                                    requirements.
74-2-11.......................  Confidential       Duplicative of SIP-
                                 Information.       approved regulation
                                                    (20.2.1.115 NMAC).

[[Page 6336]]

 
74-2-12.......................  Enforcement......  SIP-approved 74-2-4.D
                                                    provides EIB &
                                                    secretary with
                                                    enforcement
                                                    authority.
74-2-13.......................  Inspection.......  SIP-approved 74-2-
                                                    5.1A provides
                                                    department/local
                                                    agency inspection
                                                    authority.
74-2-14.......................  Penalties........  Inconsistent with
                                                    federally-
                                                    enforceable
                                                    requirements.
74-2-15.......................  Additional Means   Inconsistent with
                                 of Enforcement..   federally-
                                                    enforceable
                                                    requirements.
74-2-16.......................  Declaratory        Inconsistent with
                                 Judgement on       federally-
                                 Regulations.       enforceable
                                                    requirements.
------------------------------------------------------------------------

    These elements are appropriate for state and local agencies to 
adopt and implement, but it is not necessary or appropriate to make 
them federally enforceable by incorporating them into the applicable 
SIP. Moreover, inclusion of sections 74-2-8, 74-2-9, 74-2-14, 74-2-15, 
and 74-2-16 into the SIP present inconsistencies with the Act, and 
Federal requirements. EPA is removing these sections from the New 
Mexico SIP, and will not act upon updates to these sections contained 
in the State's August 6, 2015 submittal.
    Further, the State's submittal identified NMSA 1978, section 74-2-
15.1 (Primary Nonferrous Smelter Orders) as having been repealed by the 
State in 1992. EPA will act accordingly to remove this section from the 
SIP.

III. Final Action

    We are approving revisions to the New Mexico SIP that pertain to 
updated statutes under NMSA 1978 Chapter 74, Article 2 contained in the 
State's August 6, 2015 submittal. We are also making an error 
correction to remove from the New Mexico SIP certain statutes under 
NMSA 1978 Chapter 74, Article 2 originally approved in our November 2, 
1984 rulemaking.
    The EPA is publishing this rule without prior proposal because we 
view this as a non-controversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the SIP revision if relevant adverse 
comments are received. This rule will be effective on May 28, 2019 
without further notice unless we receive relevant adverse comment by 
March 29, 2019. If we receive relevant adverse comments, 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 must do so now. Please note that if we receive 
relevant adverse comment on an amendment, paragraph, or section of this 
rule and if that provision may be severed from the remainder of the 
rule, we may adopt as final those provisions of the rule that are not 
the subject of an adverse comment.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the 
revisions to the New Mexico statutes as described in the Final Action 
section above. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 6 Office (please contact Jeff Riley, (214) 665-8542, 
[email protected] for more information). Therefore, these materials 
have been approved by EPA for inclusion in the SIP, have been 
incorporated by reference by EPA into that plan, are fully federally 
enforceable under sections 110 and 113 of the CAA as of the effective 
date of the final rulemaking of EPA's approval, and will be 
incorporated by reference in the next update to the SIP compilation (62 
FR 27968, May 22, 1997).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

[[Page 6337]]

    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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 29, 2019. 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 14, 2019.
Anne Idsal,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. In Sec.  52.1620(e), the table titled ``EPA-Approved New Mexico 
Statutes'' is amended under ``Chapter 74--Environmental Improvement'' 
by:
0
a. Revising the entries for Sections 74-2-1, 74-2-2, 74-2-3, and 74-2-
5;
0
b. Removing the entry for Section 74-2-6;
0
c. Revising the entry for Section 74-2-7;
0
d. Removing the entries for Sections 74-2-8 and 74-2-9;
0
e. Revising the entry for 74-2-10;
0
f. Removing the entry for Section 74-2-11;
0
g. Revising the entry for Section 74-2-11.1;
0
h. Removing the entries for Sections 74-2-12, 74-2-13, 74-2-14, 74-2-
15, 74-2-15.1, and 74-2-16; and
0
i. Revising the entry for Section 74-2-17.
    The revisions read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (e) * * *

                                        EPA-Approved New Mexico Statutes
----------------------------------------------------------------------------------------------------------------
                                                   State approval/     EPA approval
        State citation           Title/subject      effective date         date                Comments
----------------------------------------------------------------------------------------------------------------
                                               New Mexico Statutes
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                      Chapter 74--Environmental Improvement
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74-2-1.......................  Short Title......           8/6/2015  2/27/2019,       ..........................
                                                                      [Insert
                                                                      Federal
                                                                      Register
                                                                      citation].
74-2-2.......................  Definitions......           8/6/2015  2/27/2019,       ..........................
                                                                      [Insert
                                                                      Federal
                                                                      Register
                                                                      citation].
74-2-3.......................  Environmental               8/6/2015  2/27/2019,       ..........................
                                improvement                           [Insert
                                board.                                Federal
                                                                      Register
                                                                      citation].
 
                                                  * * * * * * *
74-2-5.......................  Duties and                  8/6/2015  2/27/2019,       ..........................
                                powers;                               [Insert
                                environmental                         Federal
                                improvement                           Register
                                board; local                          citation].
                                board.
74-2-7.......................  Permits; permit             8/6/2015  2/27/2019,       ..........................
                                appeals to the                        [Insert
                                environmental                         Federal
                                improvement                           Register
                                board or the                          citation].
                                local board;
                                permit fees.
74-2-10......................  Emergency powers            8/6/2015  2/27/2019,       ..........................
                                of the secretary                      [Insert
                                and the director.                     Federal
                                                                      Register
                                                                      citation].
74-2-11.1....................  Limitations on              8/6/2015  2/27/2019,       ..........................
                                regulations.                          [Insert
                                                                      Federal
                                                                      Register
                                                                      citation].
74-2-17......................  Continuing effect           8/6/2015  2/27/2019,       ..........................
                                of existing                           [Insert
                                laws, rules and                       Federal
                                regulations.                          Register
                                                                      citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


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[FR Doc. 2019-02862 Filed 2-26-19; 8:45 am]
 BILLING CODE 6560-50-P