[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Rules and Regulations]
[Pages 42822-42825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17746]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2015-0850; FRL-9998-05-Region 6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: 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 final rule is effective on September 18, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2015-0850. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through https://www.regulations.gov or 
in hard copy at the EPA Region 6 Office, 1201 Elm Street, Suite 500, 
Dallas, Texas 75270.

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 the 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. 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 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 during the comment period, and the direct final rule was 
partially withdrawn on May 16, 2019 (84 FR 22049). This partial 
withdrawal only concerned statutes being removed from the SIP (NMSA 
sections 74-2-6, 74-2-12 and 74-2-13) through our direct final rule 
that were the subject of relevant adverse comments. Our February 27, 
2019 proposal provides the basis for this final action.
    We received comments on our proposal from two commenters, the City 
of Albuquerque Environmental Health Department (EHD) and the New Mexico 
Environmental Department (NMED). Our responses to the comments are 
below.

II. Response to Comments

    Comment 1: EHD states that NMSA section 74-2-4 (Local authority) 
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.
    Response 1: EPA did not address NMSA section 74-2-4 in our February 
27, 2019 direct final rulemaking. Thus, this comment is outside the 
scope of this rulemaking. However, EPA is addressing this comment in a 
separate direct final rulemaking with the opportunity for public 
comment published elsewhere in this issue of the Federal Register.

[[Page 42823]]

    Comment 2: EHD and NMED state that NMSA section 74-2-5.1 (Duties 
and powers of the department and the local agency) 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.
    Response 2: EPA did not address NMSA section 74-2-5.1 in our 
February 27, 2019 direct final rulemaking. This comment is outside the 
scope of this rulemaking. However, EPA is addressing this comment in a 
separate direct final rulemaking with the opportunity for public 
comment published elsewhere in this issue of the Federal Register.
    Comment 3: EHD and NMED commented that NMSA section 74-2-6 
(Adoption of regulations; notice and hearings) should not be removed 
from the SIP because it establishes the required legal procedures for 
adopting regulations. Both state that if this section is not included 
in the SIP, the NMED Environmental Improvement Board and the City of 
Albuquerque Air Board do not have the required procedural elements 
under the CAA for adopting regulations for a SIP.
    Response 3: EPA's February 27, 2019 action proposed to remove NMSA 
section 74-2-6 from the SIP because the language was viewed as 
administrative in nature, and therefore need not be made federally 
enforceable by incorporating this section into the SIP. The comments 
submitted by EHD and NMED have provided clarification that this 
language outlines an established process that must occur prior to 
adoption and submission of regulations to revise the SIP. We agree with 
the commenters that NMSA section 74-2-6 details necessary procedural 
elements for adopting regulations that are not provided elsewhere in 
SIP-approved regulations and statutes. EPA is approving the August 6, 
2015 updates to NMSA section 74-2-6 into the SIP to address this 
comment.
    Comment 4: EHD and NMED argue that NMSA section 74-2-12 
(Enforcement) should not be removed from the SIP because it confers 
general authority to EHD and NMED to manage an effective air quality 
enforcement program. Further, both argue that NMSA section 74-2-4(D) 
does not convey general enforcement authority to either agency.
    Response 4: EPA's February 27, 2019 action proposed to remove NMSA 
section 74-2-12 from the SIP because we viewed the language as being 
duplicative of SIP-approved NMSA section 74-2-4(D), which we read to 
provide for administration and enforcement of the Air Quality Control 
Act. The comments submitted by EHD and NMED have provided clarification 
that this language does not confer general enforcement authority to 
either agency; rather, NMSA section 74-2-4(D) only authorizes NMED to 
assert jurisdiction in Bernalillo County if the Air Board, EHD or the 
EHD Director fail to adequately protect air quality. Therefore, we 
agree with the commenters that NMSA section 74-2-12 is essential for 
demonstrating adequate state legal authority for enforcement actions, 
as required by CAA section 110(a)(2)(C). However, we note that this 
authority is conferred to each agency by NMSA section 74-2-12(A)(1) & 
(2), with the remaining paragraphs providing details specific to each 
agency's implementation of the authority granted. The remaining 
paragraphs contain elements appropriate for state and local agencies to 
adopt and implement, but inclusion of these agency-specific details 
into the federally-enforceable SIP is not a requirement under CAA 
section 110(a)(2)(C) and may result in confusion regarding applicable 
provisions for federal enforcement actions.
    EPA concludes that this authority is not provided elsewhere in SIP-
approved regulations and statutes, and we are approving the August 6, 
2015 updates to NMSA section 74-2-12(A)(1) & (2) into the SIP to 
address this comment and remove the remainder of NMSA section 74-2-12 
from the SIP.
    Comment 5: EHD and NMED assert that NMSA section 74-2-13 
(Inspection) should not be removed from the SIP because it authorizes 
``right of entry'' on any premises on which an emission source is 
located or where required records are stored. It also authorizes the 
copying of records, sampling of emissions, and the inspection of 
monitoring equipment and methods. Further, both state that this section 
provides more specific authority for investigations than the general 
authority granted under NMSA section 74-2-5.1.
    Response 5: EPA's February 27, 2019 action proposed to remove NMSA 
section 74-2-13 from the SIP because we viewed the language as being 
duplicative of NMSA section 74-2-5.1, which we read to confer similar 
authority to EHD and NMED to enter any premises the agency has 
reasonable cause to believe is or will become a source contributing to 
air pollution, as well as authority to require the production of 
information relating to emissions that cause or contribute to air 
pollution. We note that NMSA section 74-2-5.1 was erroneously cited as 
being SIP-approved in our February 27, 2019 action. The comments 
submitted by EHD and NMED have provided clarification that NMSA section 
74-2-5.1 does grant the authority to make investigations in order to 
determine whether a source should be regulated under the AQCA and to 
conduct enforcement proceedings to compel compliance, but NMSA section 
74-2-13 specifically grants these agencies the right to entry to the 
premises on which a regulated emission source is located for the 
purposes of reviewing records, inspection of monitoring equipment, or 
to conduct sampling. Further, NMSA section 74-2-13 grants these 
agencies authority to obtain a search warrant to conduct an inspection 
which has been refused. Therefore, we agree with the commenters that 
NMSA section 74-2-13 is essential for demonstrating adequate state 
legal authority to conduct inspections, as required by CAA section 
110(a)(2)(C). EPA concludes that this extent of authority is not 
provided elsewhere in SIP-approved regulations and statutes, and we are 
approving the August 6, 2015 updates to NMSA section 74-2-13 into the 
SIP to address this comment.
    We note that our February 27, 2019 action removed NMSA sections 74-
2-14, 74-2-15, 74-2-15.1, and 74-2-16 from the New Mexico SIP; however, 
this removal was not finalized due to inclusion of these sections in a 
portion of that rulemaking's amendatory language that also included 
NMSA sections 74-2-12 and 74-2-13, which were impacted by the relevant 
adverse comments received. EPA's May 16, 2019 partial withdrawal 
required our withdrawal of the entire portion of amendatory language. 
Our February 27, 2019 removal of NMSA sections 74-2-14, 74-2-15, 74-2-
15.1, and 74-2-16 from the New Mexico SIP did not receive relevant 
adverse comments; therefore, EPA is finalizing removal of

[[Page 42824]]

these sections through this final rulemaking.

III. Final Action

    We are approving revisions to the New Mexico SIP that pertain to 
updated statutes under NMSA 1978 Chapter 74, Article 2 sections 74-2-6, 
74-2-12, and 74-2-13 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 sections 74-
2-14, 74-2-15, 74-2-15.1, and 74-2-16 originally approved in our 
November 2, 1984 rulemaking.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. 
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, 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. EPA will submit a report containing this action 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 October 18, 2019. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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'' is amended under ``Chapter 74-Environmental Improvement'' 
by:
0
a. Revising the entries for Sections 74-2-6, 74-2-12, and 74-2-13; and
0
b. Removing the entries for Sections 74-2-14, 74-2-15, 74-2-15.1, and 
74-2-16.
    The revisions read as follows:


Sec.  52.1620  Identification of plan.

* * * * *
    (e) * * *

[[Page 42825]]



                                        EPA-Approved New Mexico Statutes
----------------------------------------------------------------------------------------------------------------
                                                State approval/
     State citation          Title/subject      effective date     EPA approval date            Comments
----------------------------------------------------------------------------------------------------------------
                                               New Mexico Statutes
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                      Chapter 74--Environmental Improvement
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74-2-6.................  Adoption of                   8/6/2015  8/19/2019, [Insert
                          regulations; notice                     Federal Register
                          and hearings.                           citation].
 
                                                  * * * * * * *
74-2-12................  Enforcement;                  8/6/2015  8/19/2019, [Insert    Only paragraphs (A)(1) &
                          compliance orders.                      Federal Register      (2) are SIP-approved
                                                                  citation].            (enforcement authority
                                                                                        under CAA section
                                                                                        110(a)(2)(C)).
74-2-13................  Inspection..........          8/6/2015  8/19/2019, [Insert
                                                                  Federal Register
                                                                  citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2019-17746 Filed 8-16-19; 8:45 am]
BILLING CODE 6560-50-P