Air Plan Approval; New Mexico; Approval of Revised Statutes; Error Correction, 6334-6338 [2019-02862]

Download as PDF 6334 Federal Register / Vol. 84, No. 39 / Wednesday, February 27, 2019 / Rules and Regulations Office of Chief Counsel, TIGTA, at 202–622– 4068. 3. Requests for records. Initial determinations as to whether to grant requests for records of TIGTA will be made by the Disclosure Officer, TIGTA. Requests for records may be mailed to: Freedom of Information Act/Privacy Act Request, Treasury Inspector General for Tax Administration, Office of Chief Counsel, Disclosure Branch, 1401 H Street NW, Room 469, Washington, DC 20005. You may also view the How to Make a FOIA Request for TIGTA Records at https://www.treasury.gov/ tigta/important_foia_mafr.shtml. TIGTA’s FOIA email address is FOIA.Reading.Room@ tigta.treas.gov. 4. Administrative appeal of initial determination to deny records. Appellate determinations with respect to the records of TIGTA will be made by the Chief Counsel, TIGTA, or the delegate of the Chief Counsel. Appeals should be mailed to: Freedom of Information Act/Privacy Act Appeal, Treasury Inspector General for Tax Administration, Office of Chief Counsel, 1401 H Street NW, Room 469, Washington, DC 20005. David F. Eisner, Assistant Secretary for Management. [FR Doc. 2019–03320 Filed 2–26–19; 8:45 am] BILLING CODE 4810–25–P 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 Environmental Protection Agency (EPA). ACTION: Direct final rule. AGENCY: 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:// amozie on DSK3GDR082PROD with RULES SUMMARY: VerDate Sep<11>2014 16:10 Feb 26, 2019 Jkt 247001 www.regulations.gov or via email to Riley.Jeffrey@epa.gov. 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, Riley.Jeffrey@epa.gov. 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-epadockets. 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, Riley.Jeffrey@ epa.gov. 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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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 E:\FR\FM\27FER1.SGM 27FER1 Federal Register / Vol. 84, No. 39 / Wednesday, February 27, 2019 / Rules and Regulations 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. 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 6335 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 ...................................... 74–2–2 ............................................ 74–2–3 ............................................ 74–2–5 ............................................ Definitions ...................................... Environmental improvement board Duties and powers; environmental improvement board; local board. Permits ........................................... Emergency powers of the secretary and the director. Limitations on regulations .............. Continuing effect of existing laws, rules and regulations. Identifies NMSA 1978 Chapter 74, Article 2 as Air Quality Control Act (AQCA). Definitions used in AQCA. Establishes jurisdiction of EIB. Grants EIB authority for SIP development, enforcement, air monitoring, reporting, assurance of adequate implementation. Provides EIB with authority for construction and operating permits. Provides NMED with authority to address environmental emergencies. Specifies limitations to EIB and local board authorities, jurisdictions. Establishes precedence of AQCA over any conflicting legislation. 74–2–7 ............................................ 74–2–10 .......................................... 74–2–11.1 ....................................... 74–2–17 .......................................... 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. amozie on DSK3GDR082PROD with RULES TABLE 2—NMSA 1978 CHAPTER 74, ARTICLE 2 SECTIONS FOR REMOVAL FROM NEW MEXICO SIP NMSA 1978 section Title 74–2–6 ............................................ Adoption of Regulations; Notice and Hearings. Variances ....................................... Variances—Judicial Review .......... Confidential Information ................. 74–2–8 ............................................ 74–2–9 ............................................ 74–2–11 .......................................... 1 ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and 110(a)(2),’’ VerDate Sep<11>2014 16:10 Feb 26, 2019 Jkt 247001 Reason for removal Administrative requirements, hearing board procedures. Inconsistent with federally-enforceable requirements. Inconsistent with federally-enforceable requirements. Duplicative of SIP-approved regulation (20.2.1.115 NMAC). Memorandum from Stephen D. Page, September 13, 2013, https://www3.epa.gov/airquality/urbanair/ PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 sipstatus/docs/Guidance_on_Infrastructure_SIP_ Elements_Multipollutant_FINAL_Sept_2013.pdf. E:\FR\FM\27FER1.SGM 27FER1 6336 Federal Register / Vol. 84, No. 39 / Wednesday, February 27, 2019 / Rules and Regulations TABLE 2—NMSA 1978 CHAPTER 74, ARTICLE 2 SECTIONS FOR REMOVAL FROM NEW MEXICO SIP—Continued NMSA 1978 section Title Reason for removal 74–2–12 .......................................... Enforcement .................................. 74–2–13 .......................................... Inspection ...................................... 74–2–14 .......................................... 74–2–15 .......................................... 74–2–16 .......................................... Penalties ........................................ Additional Means of Enforcement. Declaratory Judgement on Regulations. SIP-approved 74–2–4.D provides EIB & secretary with enforcement authority. SIP-approved 74–2–5.1A provides department/local agency inspection authority. Inconsistent with federally-enforceable requirements. Inconsistent with federally-enforceable requirements. Inconsistent with federally-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. amozie on DSK3GDR082PROD with RULES 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 VerDate Sep<11>2014 16:10 Feb 26, 2019 Jkt 247001 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, Riley.Jeffrey@ epa.gov 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 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 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). E:\FR\FM\27FER1.SGM 27FER1 6337 Federal Register / Vol. 84, No. 39 / Wednesday, February 27, 2019 / Rules and Regulations 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 1. The authority citation for part 52 continues to read as follows: ■ Subpart GG—New Mexico 2. In § 52.1620(e), the table titled ‘‘EPA-Approved New Mexico Statutes’’ is amended under ‘‘Chapter 74— Environmental Improvement’’ by: ■ a. Revising the entries for Sections 74– 2–1, 74–2–2, 74–2–3, and 74–2–5; ■ b. Removing the entry for Section 74– 2–6; ■ c. Revising the entry for Section 74– 2–7; ■ d. Removing the entries for Sections 74–2–8 and 74–2–9; ■ e. Revising the entry for 74–2–10; ■ f. Removing the entry for Section 74– 2–11; ■ g. Revising the entry for Section 74– 2–11.1; ■ 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 ■ i. Revising the entry for Section 74–2– 17. The revisions read as follows: ■ § 52.1620 * Authority: 42 U.S.C. 7401 et seq. Identification of plan. * * (e) * * * * * EPA-APPROVED NEW MEXICO STATUTES State citation State approval/ effective date Title/subject EPA approval date Comments New Mexico Statutes * * * * * * * Chapter 74—Environmental Improvement * 74–2–1 .............................. * * * Short Title ................................................. 8/6/2015 74–2–2 .............................. Definitions ................................................. 8/6/2015 74–2–3 .............................. Environmental improvement board ........... 8/6/2015 * 74–2–5 .............................. * * * Duties and powers; environmental improvement board; local board. Permits; permit appeals to the environmental improvement board or the local board; permit fees. Emergency powers of the secretary and the director. Limitations on regulations ......................... 74–2–7 .............................. 74–2–10 ............................ 74–2–11.1 ......................... amozie on DSK3GDR082PROD with RULES 74–2–17 ............................ * VerDate Sep<11>2014 16:10 Feb 26, 2019 * Jkt 247001 PO 00000 * * * 2/27/2019, [Insert Federal Register citation]. 2/27/2019, [Insert Federal Register citation]. * 8/6/2015 8/6/2015 2/27/2019, [Insert Federal Register citation]. 2/27/2019, [Insert Federal Register citation]. 2/27/2019, [Insert Federal Register citation]. 8/6/2015 8/6/2015 * Frm 00025 * 2/27/2019, [Insert Federal Register citation]. 2/27/2019, [Insert Federal Register citation]. 2/27/2019, [Insert Federal Register citation]. 8/6/2015 Continuing effect of existing laws, rules and regulations. * * Fmt 4700 * Sfmt 4700 E:\FR\FM\27FER1.SGM * 27FER1 * 6338 * * Federal Register / Vol. 84, No. 39 / Wednesday, February 27, 2019 / Rules and Regulations * * II. Have the requirements for approval of a part 70 revision been met? III. What action is EPA taking? IV. Statutory and Executive Order Reviews * [FR Doc. 2019–02862 Filed 2–26–19; 8:45 am] BILLING CODE 6560–50–P I. Background ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [EPA–R07–OAR–2018–0828; FRL 9989–43– Region 7] Approval of Operating Permits Program; Kansas; Reporting Emission Data, Emission Fees and Process Information Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Operating Permits Program (OPP) for the State of Kansas. This final action will amend the Kansas rules to reorganize, clarify, and update the Class I emission fee, application fee, and emissions inventory regulations and ensure that Kansas’s OPP is adequately funded. Approval of these revisions ensures consistency between the State and federallyapproved rules and does not impact air quality. DATES: This final rule is effective on March 29, 2019. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA–R07–OAR–2018–0828. 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, i.e., CBI 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 through https:// www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional information. FOR FURTHER INFORMATION CONTACT: Deborah Bredehoft, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7164, or by email at Bredehoft.Deborah@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. amozie on DSK3GDR082PROD with RULES SUMMARY: Table of Contents 16:10 Feb 26, 2019 II. Have the requirements for approval of a part 70 revision been met? The state provided a public comment period for this OPP revision from September 7, 2017, to November 15, 2017, and received comments. In response to the comments, Kansas revised the rule prior to submitting to the EPA. The revisions are consistent with applicable EPA requirements in title V of the CAA and 40 CFR part 70. III. What action is EPA taking? The EPA is taking final action to approve revisions to the Kansas OPP by approving the State’s request to revoke K.A.R. 28–19–202, Annual emissions fees; and to amend K.A.R. 28–19–516, Class I operating permits, application fees; and K.A.R. 28–19–517, Class I operating permits, annual emissions inventory and fees. Approval of these revisions will ensure consistency between the state and federallyapproved rules. EPA has determined that these changes will not adversely impact air emissions. IV. Statutory and Executive Order Reviews This final action merely approves state law as meeting Federal I. Background VerDate Sep<11>2014 On December 19, 2018 (83 FR 65115), EPA published a notice of proposed rulemaking (NPR) for the State of Kansas. In the NPR, EPA proposed approval of revisions to the Kansas OPP. The revisions were submitted by the State of Kansas on January 22, 2018. Revisions to the program include revoking Kansas Administrative Regulation (K.A.R.) 28–19–202; adding new language to K.A.R. 28–19–517 which parallels language in the revoked K.A.R. 28–19–202; increasing the annual emission fee from $37 dollars per ton to $53 dollars per ton; increasing all application fees in K.A.R. 28–19– 516; establishing a baseline emission fee; and adding additional clarifications to the Program to address fees, refunds, electronic submittal, and who is required to submit an annual emissions inventory. A detailed discussion of Kansas’s OPP submission and EPA’s rationale for approving the OPP submission were provided in the NPR and the associated Technical Support Document in the docket for this rulemaking and will not be restated here. No comments were received regarding the NPR. Jkt 247001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this final 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 Title V 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 the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; 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, this approval of the revision to Kansas’s Title V Operating Permit Program 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 E:\FR\FM\27FER1.SGM 27FER1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[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
Riley.Jeffrey@epa.gov. 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, Riley.Jeffrey@epa.gov. 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,
Riley.Jeffrey@epa.gov. 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,
Riley.Jeffrey@epa.gov 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

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