E9-7296. Approval and Promulgation of Implementation Plans; New Mexico; Albuquerque/Bernalillo County

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a revision to the New Mexico Albuquerque/Bernalillo County State Implementation Plan (SIP). This revision replaces Regulation 8, Airborne Particulate Matter, with New Mexico Administrative Code (NMAC), 20.11.20, Fugitive Dust Control. This rulemaking action is being taken under section 110 of the Clean Air Act (CAA).

DATES:

This rule is effective on June 1, 2009 without further notice, unless EPA receives adverse comment by May 1, 2009. If EPA receives such comment, 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-2008-0509, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: Mr. Guy Donaldson at [e-mail]. Please also send a copy by email to the person listed in the FOR FURTHER INFORMATION CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665-7263.
• Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
• Hand Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-2008-0509. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 am and 4:30 pm weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment:

The City of Albuquerque, Environmental Health Department, One Civic Plaza, Albuquerque, NM, 87102.

FOR FURTHER INFORMATION CONTACT:

Joe Kordzi, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone [phone]; fax number 214-665-7263; e-mail address [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Outline

I. Background

II. Evaluation of the Albuquerque Fugitive Dust Control Rule

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

The Albuquerque/Bernalillo County Air Quality Control Board (AQCB) is the federally delegated air quality authority for Albuquerque and Bernalillo County. The AQCB is authorized to administer and enforce the CAA and the New Mexico Air Quality Control Act, and to require local air pollution sources to comply with air quality standards.

EPA approved the AQCB's Rule 8, Airborne Particulate Matter, on February 23, 1993 (58 FR 10970). The AQCB revised this regulation with NMAC 20.11.20, Airborne Particulate Matter, in 1996. The AQCB later substantially revised NMAC 20.11.20 on January 14, 2004, and renamed it “Fugitive Dust Control.” On September 7, 2004, the Governor of New Mexico submitted a SIP revision requesting that EPA revise the New Mexico Albuquerque/Bernalillo County SIP by replacing Regulation 8 with NMAC 20.11.20, Fugitive Dust Control. The AQCB later requested that this SIP submission be placed on hold, anticipating that NMAC 20.11.20 would again be revised. Subsequently, on April 3, 2008, the Governor of New Mexico submitted a SIP revision with the newly revised NMAC 20.11.20.

II. What did the state submit and how did we evaluate it?

The AQCB's SIP revision package included (1) Regulation 8, Airborne Particulate Matter; (2) NMAC 20.11.20, Fugitive Dust Control; (3) documents associated with a public hearing and a public meeting conducted on February 13, 2008; (4) evidence that legal notices were published in the local newspaper and the New Mexico Register, and (5) evidence NMAC 20.11.20, Fugitive Dust Control was filed with the New Mexico State Records Center on February 15, 2008.

NMAC 20.11.20, Fugitive Dust Control has a number of changes over Regulation 8, Airborne Particulate Matter, that will enable the City of Albuquerque Air Quality Division to improve its ability to address particulate matter emissions. In general, NMAC 20.11.20, Fugitive Dust Control is designed to capture all sources of fugitive dust, in contrast to Regulation 8, which targeted industrial and commercial activities. Examples of the improvements incorporated into NMAC 20.11.20, Fugitive Dust Control include the following:

• The use of reasonably available control measures identified in the regulation, or other effective control measures to prevent or abate fugitive dust leaving a property where human actions may or will generate fugitive dust.
• The stabilization of new and existing unpaved roadways and unpaved lots in Bernalillo County to abate fugitive dust.
• A requirement that permits be obtained for surface disturbing activities involving 3/4 acre or more.
• Control of greenwaste (e.g., grass clippings or leaves) from being deposited on publicly owned properties, where it can become airborne.
• Provisions for programmatic permits for routine maintenance, routine surface disturbance activities, or routine ongoing active operations.
• Provisions for construction permits.
• Re-seeding specifications for native plants.
• Provisions for public outreach and training on fugitive dust for those involved in earthwork activities.
• Guidelines for responding to complaints, especially where damage to private property by fugitive dust is alleged.
• Appeal procedures for permits and enforcement actions.

See the Technical Support Document for a more detailed comparison of NMAC 20.11.20, Fugitive Dust Control with the earlier Regulation 8.

Under section 110(l), EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP), or any other applicable requirement of the CAA. As shown above, this revision makes the SIP more stringent and includes coverage of more sources. It will not result in increased emissions. Therefore, EPA's approval of this SIP revision will not interfere with any applicable requirement concerning attainment and RFP or any other CAA requirement in compliance with the requirements of section 110(l) of the Act.

III. What is our final action?

The EPA is approving the April 3, 2008 revision to the New Mexico Albuquerque/Bernalillo County SIP regarding Fugitive Dust Control. This revision replaces Regulation 8, Airborne Particulate Matter, with NMAC 20.11.20, Fugitive Dust Control because it is a substantial improvement over the approved SIP. Furthermore, as the April 3, 2008 SIP submission is a replacement of the September 7, 2004 SIP submission, we are taking no action on the September 7, 2004 submission. This rulemaking action is being taken under section 110 of the CAA.

IV. Why is this a “final action?”

EPA is publishing this rule without prior proposal because we view this as a noncontroversial 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 adverse comments are received. This rule will be effective on June 1, 2009 without further notice unless we receive adverse comment by May 1, 2009. If we receive 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 at this time. Please note that if we receive 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.

V. 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, 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 Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; 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 rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 June 1, 2009. 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
• Intergovernmental relations
• Particulate matter
• Reporting and recordkeeping requirements

Dated: March 16, 2009.

Lawrence E. Starfield,

Acting Regional Administrator, Region 6.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7402 et seq.

Subpart GG—New Mexico

2. In § 52.1620(c), the second table entitled “EPA Approved Albuquerque/Bernalillo County, NN Regulations,” is amended as follows:

a. Under the centered heading “Albuquerque/Bernalillo County, Air Quality Control Regulations,” by removing the entry for “Regulation No. 8, Airborne Particulate Matter;” and

b. Under the centered heading “New Mexico Administrative Code (NMAC) Title 20—Environment Protection, Chapter 11- Albuquerque/Bernalillo County Air Quality Control Board,” immediately following the entry for “Part 8 (20.11.8 NMAC),” by adding a new entry for “Part 20 (20.11.20 NMAC), Fugitive Dust Control,” to read as follows:

§ 52.1620

Identification of plan.

* * * * *

(c) * * *

EPA Approved Albuquerque/Bernalillo County, NN Regulations

State citation	Title/subject	State approval/ effective date	EPA approval date	Explanation
*          *          *          *          *          *          *
New Mexico Administrative Code (NMAC) Title 20—Environment Protection, Chapter 11—Albuquerque/Bernalillo County Air Quality Control Board
*          *          *          *          *          *          *
Part 20 (20.11.20 NMAC)	Fugitive Dust Control	3/17/2008	April 1, 2009 [Insert FR page where document begins]
*          *          *          *          *          *          *