[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 6338]]
* * * * *
[FR Doc. 2019-02862 Filed 2-26-19; 8:45 am]
BILLING CODE 6560-50-P