[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Rules and Regulations]
[Pages 42819-42822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17745]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2015-0850; FRL-9997-80-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 to provide clarification of the approval 
action taken.

DATES: This rule is effective on November 18, 2019 without further 
notice, unless the EPA receives relevant adverse comment by September 
18, 2019. If the EPA receives such comment, the EPA will publish a 
timely withdrawal in the Federal Register

[[Page 42820]]

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, 
1201 Elm Street, Suite 500, Dallas, Texas 75270. 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, EPA Region 6 Office, 
Infrastructure and Ozone Section, 1201 Elm Street, Suite 500, Dallas, 
TX 75270, (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

    The background for this action is discussed in detail in our 
February 27, 2019 direct final rule and proposal (84 FR 6334, 84 FR 
6353). In that direct final rule, we approved revisions to the New 
Mexico SIP that pertain to updated statutes under New Mexico Statutes 
Annotated 1978 (NMSA) Chapter 74, Article 2 contained in the State's 
August 6, 2015 submittal to provide 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). We also made 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 (49 FR 44099).
    The February 27, 2019 rule and proposal stated that if any relevant 
adverse comments were received by the end of the public comment period 
on March 29, 2019, the direct final rule would be withdrawn, and we 
would respond to the comments in a subsequent final action. Relevant 
adverse comments were received from the City of Albuquerque 
Environmental Health Department (EHD) and the New Mexico Environmental 
Department (NMED) during the comment period on NMSA sections 74-2-6, 
74-2-12 and 74-2-13; therefore, that portion of the direct final rule 
was partially withdrawn on May 16, 2019 (84 FR 22049). In the final 
rules section of this issue of the Federal Register, EPA is taking a 
separate final action to address comments received relating to NMSA 
sections 74-2-6, 74-2-12 and 74-2-13.
    EPA also received comments relating to NMSA sections 74-2-4 and 74-
2-5.1, both of which EPA did not act upon in our February 27, 2019 
direct final rule. Although these comments were outside the scope of 
that rulemaking, the comments raised valid considerations that should 
be addressed through this direct final rule and the companion proposal 
published in this issue of the Federal Register.

II. The EPA's Evaluation

A. NMSA Section 74-2-4

    In a previous action to address parts of the State's August 6, 2015 
submittal (83 FR 12493, March 22, 2018), EPA approved updates to NMSA 
section 74-2-4 (Local authority), and revised the table titled ``EPA 
Approved New Mexico Statutes'' under 40 CFR 52.1620(e) with the 
following comment: ``Approved for State Board Composition and Conflict 
of Interest Provisions''. In a comment on EPA's February 27, 2019 
rulemaking, EHD interpreted this language to mean that only the aspects 
of this section pertaining to state board composition and conflict of 
interest provisions were approved as part of EPA's March 22, 2018 
action, and the remainder of NMSA section 74-2-4 was removed from the 
SIP at that time. EHD further noted that NMSA section 74-2-4 must be 
SIP-approved in full to satisfy CAA section 110(a)(2) requirements 
because it authorizes creation of a local authority to assume control 
over air quality in a local jurisdiction (Albuquerque-Bernalillo 
County), using a local board, local agency, and an agency director to 
perform duties which would otherwise be performed by the NMED Secretary 
in the remainder of the state. This section specifically grants EHD 
authority to fulfill CAA responsibilities for Bernalillo County.
    We note that this interpretation of the language under 40 CFR 
52.1620(e) does not accurately represent the action taken in EPA's 
March 22, 2018 rulemaking. The remainder of NMSA section 74-2-4 was not 
removed from the SIP in this action; rather, the language was included 
under 40 CFR 52.1620(e) to indicate our reasoning for approving updates 
to the entirety of NMSA section 74-2-4 into the SIP at the time of the 
rulemaking. EPA acknowledges that this language is unclear as to the 
SIP approval status of NMSA section 74-2-4, and we are revising the 
language under 40 CFR 52.1620(e) to provide clarification.

B. NMSA Section 74-2-5.1

    As noted above, EPA did not act on NMSA section 74-2-5.1 (Duties 
and powers of the department and the local agency) in our February 27, 
2019 direct final rulemaking. Additionally, this section has not been 
previously approved into the SIP. Comments submitted by EHD and NMED 
state that NMSA section 74-2-5.1 must be SIP-approved to satisfy CAA 
section 110(a)(2) requirements because it describes the powers of EHD 
and NMED to manage air quality and to implement and enforce air quality 
requirements, such as the powers to:
     Conduct investigations & studies, entering properties;
     Institute legal proceedings to compel compliance;
     Encourage voluntary cooperation;
     Consult on efficacy of contaminant sources, devices or 
controls;
     Establish small business assistance program (CAA section 
507);
     Accept & administer grants (CAA section 105); and
     Classify & record air contaminant sources (emission 
inventories).
    Further, NMSA section 74-2-5.1 authorizes EHD to develop and 
propose control strategies to its Air Board.
    The comments submitted by EHD and NMED have provided clarification 
that

[[Page 42821]]

this language confers to both agencies a broad range of necessary state 
authority to enforce the NAAQS that is not provided elsewhere in SIP-
approved regulations and statutes. We agree that NMSA section 74-2-5.1 
details the authority of EHD and NMED for enforcement of the state Air 
Quality Control Act (NMSA 1978 Chapter 74, Article 2). EPA will approve 
NMSA section 74-2-5.1 into the SIP to satisfy CAA section 110(a)(2) 
requirements.

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 clarifying an action 
taken in our March 22, 2018 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 November 18, 2019 
without further notice unless we receive relevant adverse comment by 
September 18, 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. 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 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 (Pub. L. 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).
    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 October 18, 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: August 13, 2019.
Kenley McQueen,
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'' under ``Chapter 74--Environmental Improvement'' is amended 
by:
0
a. Revising the entry for Section 74-2-4; and
0
b. Adding an entry for Section 74-2-5.1 in numerical order.
    The revision and addition read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (e) * * *

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                                        EPA-Approved New Mexico Statutes
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                                                State approval/
     State citation          Title/subject      effective date     EPA approval date            Comments
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                                               New Mexico Statutes
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                                      Chapter 74--Environmental Improvement
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                                                  * * * * * * *
74-2-4.................  Local Authority.....          8/6/2015  3/22/2018, 83 FR      Statute first approved 11/
                                                                  12493.                2/1984. Update approved
                                                                                        6/1/1999 addressed State
                                                                                        Board Composition and
                                                                                        Conflict of Interest
                                                                                        Provisions.
 
                                                  * * * * * * *
74-2-5.1...............  Duties and powers of          8/6/2015  8/19/2019, [Insert    .........................
                          the department and                      Federal Register
                          the local agency.                       citation].
 
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[FR Doc. 2019-17745 Filed 8-16-19; 8:45 am]
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