Air Plan Approval; New Mexico; Approval of Revised Statutes; Error Correction, 42822-42825 [2019-17746]
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Federal Register / Vol. 84, No. 160 / Monday, August 19, 2019 / Rules and Regulations
EPA-APPROVED NEW MEXICO STATUTES
State citation
State approval/
effective date
Title/subject
EPA approval date
Comments
New Mexico Statutes
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Chapter 74—Environmental Improvement
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74–2–4 ............
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Local Authority ................
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74–2–5.1 .........
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Duties and powers of the
department and the
local agency.
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BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
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Jeff
Riley, EPA Region 6 Office,
Infrastructure and Ozone Section, 1201
Elm Street, Suite 500, Dallas, TX 75270,
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.
FOR FURTHER INFORMATION CONTACT:
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
Environmental Protection
Agency (EPA).
ACTION: 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 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
SUMMARY:
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Statute first approved 11/2/1984. Update approved
6/1/1999 addressed State Board Composition
and Conflict of Interest Provisions.
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.
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8/19/2019, [Insert Federal Register citation].
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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
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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 (AlbuquerqueBernalillo 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.
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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
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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
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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
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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.
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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
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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.
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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
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart GG—New Mexico
2. In § 52.1620(e), the table titled
‘‘EPA-Approved New Mexico Statutes’’
is amended under ‘‘Chapter 74Environmental Improvement’’ by:
■ a. Revising the entries for Sections 74–
2–6, 74–2–12, and 74–2–13; and
■ 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:
■
§ 52.1620
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EPA-APPROVED NEW MEXICO STATUTES
State citation
State approval/
effective date
Title/subject
EPA approval date
Comments
New Mexico Statutes
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Chapter 74—Environmental Improvement
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74–2–6 ............
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Adoption of regulations;
notice and hearings.
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74–2–12 ..........
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Enforcement; compliance
orders.
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74–2–13 ..........
Inspection .......................
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8/6/2015
8/6/2015
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[FR Doc. 2019–17746 Filed 8–16–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2018–0731; FRL–9998–49–
Region 5]
Air Plan Approval; Minnesota; Flint
Hills Sulfur Dioxide (SO2) Revision
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a revision to
the Minnesota sulfur dioxide (SO2) State
Implementation Plan (SIP) for the Flint
Hills Resources, LLC Pine Bend
Refinery (FHR) as submitted on October
23, 2018. The SIP revision pertains to
the shutdown and replacement of
certain equipment at the refinery as well
as amendments to certain emission
limits, resulting in an overall decrease
of SO2 emissions from FHR.
DATES: This final rule is effective on
September 18, 2019.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2018–0731. All
documents in the docket are listed on
the www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
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SUMMARY:
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8/19/2019, [Insert Federal Register citation].
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8/19/2019, [Insert FedOnly paragraphs (A)(1) & (2) are SIP-approved
eral Register citation].
(enforcement authority under CAA section
110(a)(2)(C)).
8/19/2019, [Insert Federal Register citation].
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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 through
www.regulations.gov or at the
Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We
recommend that you telephone Anthony
Maietta, Environmental Protection
Specialist, at (312) 353–8777 before
visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Anthony Maietta, Environmental
Protection Specialist, Control Strategies
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–8777,
maietta.anthony@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
I. What is being addressed by this document?
II. What comments did we receive on the
proposed action?
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. What is being addressed by this
document?
On October 23, 2018, the Minnesota
Pollution Control Agency (MPCA)
submitted a request for EPA to approve
into the Minnesota SIP the conditions
cited as ‘‘Title I Condition: 40 CFR
50.4(SO2 SIP); Title I Condition: 40 CFR
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51; Title I Condition: 40 CFR pt. 52,
subp. Y’’ in FHR’s revised joint Title I/
Title V document, Permit No.
03700011–102 (joint document 102). On
May 16, 2019 (84 FR 22091), EPA
proposed to approve MPCA’s October
23, 2018 submittal.
MPCA’s submittal demonstrated that
joint document 102 contains amended
SIP conditions that implement changes
to technology at the plant as well as
revise SO2 emissions limits for existing
equipment. MPCA’s submittal
demonstrated that the amended SIP
revisions reduce allowable SIP-based
SO2 emissions by 7.9 pounds per hour
or 119.8 tons per year. After review,
EPA proposed to approve MPCA’s
request to revise Minnesota’s SO2 SIP
for FHR, reflected in conditions labeled
‘‘Title I Condition: 40 CFR 50.4(SO2
SIP); Title I Condition: 40 CFR 51; Title
I Condition: 40 CFR pt. 52, subp. Y’’ in
joint document 102.
II. What comments did we receive on
the proposed action?
Our May 16, 2019 proposed rule
provided a 30-day review and comment
period. The comment period closed on
June 17, 2019. EPA received no
comments on the proposed action.
III. What action is EPA taking?
EPA is approving a revision to
Minnesota’s SO2 SIP for FHR, as
submitted by MPCA on October 23,
2018, and reflected in conditions
labeled ‘‘Title I Condition: 40 CFR 50.4
(SO2 SIP); Title I Condition: 40 CFR 51;
Title I Condition: 40 CFR pt. 52, subp.
Y’’ in joint document 102.
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]]>Agencies
[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]
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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
