[Federal Register Volume 64, Number 104 (Tuesday, June 1, 1999)]
[Rules and Regulations]
[Pages 29235-29240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13379]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NM-9-1-5214a; FRL-6350-1]
Approval and Promulgation of Implementation Plans; State of New
Mexico and County of Bernalillo, New Mexico; State Boards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action approves the State Implementation Plan (SIP)
revisions for Board composition and conflict of interest disclosure
requirements submitted both by the State of New Mexico and by
Albuquerque/Bernalillo County, NM. The SIP revisions were submitted by
the County and the State to satisfy the Federal mandate, found in
section 128 of the Federal Clean Air Act (the Act), and in response to
a SIP call letter to the Governor of New Mexico dated July 19, 1989,
requiring a cure to identified SIP deficiencies concerning State
Boards.
The revisions were submitted by the Governor to EPA on April 20 and
July 16, 1990, for the State portion, and on November 16, 1990, for the
Albuquerque/Bernalillo County portion. Supplemental information was
submitted for Albuquerque/Bernalillo County on December 18, 1990,
October 21, 1991, and November 22, 1991. These revisions correct
deficiencies for the New Mexico Environmental Improvement Board (NMEIB)
and the Albuquerque/Bernalillo County Air Quality Board in order to
comply with section 128 of the Act. The EPA approval of these New
Mexico SIP revisions make the revisions federally enforceable.
Subsequent correspondence in February and March 1993 addressed
eligibility for ``public interest'' Board member positions.
DATES: This action is effective on August 2, 1999, without further
notice, unless EPA receives adverse comment by July 1, 1999. If we
receive such comment, we will publish a timely withdrawal in the
Federal Register
[[Page 29236]]
informing the public that this rule will not take effect.
ADDRESSES: Written comments on this action should be addressed to Mr.
Thomas Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 6
Office listed below. Reference Docket Number: File Code SIP 1-3-10; NM-
90-05.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the following
locations. Anyone wanting to examine these documents should make an
appointment with the appropriate office at least two working days in
advance.
Environmental Protection Agency, Region 6, Air Planning Section
(6PD-L), Multimedia Planning and Permitting Division, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733.
New Mexico Environment Department, Air Quality Bureau, 1190 St.
Frances Drive, Room So. 2100, Santa Fe, New Mexico 87503.
Documents which are incorporated by reference are available for
public inspection at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW., Washington,
DC 20460.
FOR FURTHER INFORMATION CONTACT: Dr. John Crocker, P.E., of the EPA
Region 6 Air Planning Section at the above address, telephone (214)
665-7596.
SUPPLEMENTARY INFORMATION:
I. Background
The Act, section 128(a) titled--State Boards, requires each SIP to
contain provisions which ensure that: (1) any board or body which
approves permits or enforcement orders under the Act shall have at
least a majority of members who represent the public interest and do
not derive any significant portion of their income from persons subject
to permits or enforcement orders under the Act, and (2) any potential
conflicts of interest by members of such board or body, or the head of
an executive agency with similar powers, be adequately disclosed.
The New Mexico Air Quality Control Act (section 74-2-4) authorizes
Albuquerque/Bernalillo County to locally administer and enforce the
State Air Quality Control Act by providing for a local air quality
control program. Thus, State law views Albuquerque/Bernalillo County
and the remainder of the State of New Mexico as distinct air quality
control entities. Therefore, each entity is required to submit its own
SIP revision in order to completely satisfy the requirements of section
128(a) of the Clean Air Act for the entire State of New Mexico.
A. SIP Call
On July 19, 1989, EPA issued a SIP call to the Governor of New
Mexico providing formal notice of finding the SIP to be substantially
inadequate. The SIP call required New Mexico (i.e., the NMEIB and the
joint Albuquerque/Bernalillo County Air Quality Board) to take curative
steps to comply with section 128 of the Act within a one-year time
period or a corrective Federal Implemention Plan could be imposed to
remedy the deficiencies.
Specifically, the SIP call required New Mexico to submit to EPA a
schedule for the development and submittal of the necessary SIP
revisions to correct the SIP deficiencies, including any necessary
legislation needed to satisfy section 128 requirements (which would be
adopted during the 1990 legislative session).
B. State Submittal
1. State Portion
In response to the July 1989 SIP call, on October 6, 1989, the
State of New Mexico sent draft statutory changes of the New Mexico Air
Quality Control Act (NMAQCA) to EPA for review and comment in
anticipation of a 30-day legislative session to be held in early 1990.
These proposed changes were intended to meet the section 128(a)(1)
requirements of the Act for the NMEIB, by removing permitting and
enforcement jurisdiction from the Board and placing it under the
purview of the NMEID Director. This concept is acceptable under Federal
law. The EPA provided comments on the draft statutory changes on
December 4, 1989. In February 1990, the New Mexico State Legislature
passed House Bill 404aa which contained language that satisfied the
requirements of section 128(a)(1) of the Act. This bill was signed by
the Governor and became immediately effective on February 28, 1990.
On April 20, 1990, the Governor submitted a SIP revision to EPA
addressing the State portion of the State Board requirements. The
submittal was a copy of enacted House Bill (H.B.) 404aa which amended
the NMAQCA. This submittal was in response to the July 19, 1989, SIP
call. House Bill 404aa adopted changes which removed permits and
enforcement orders from the jurisdiction of the board. In addition, it
required a majority of the board members to represent the public
interest, and not derive any significant portion of their income from
persons subject to (or who appear before the board on) issues related
to the Act or the NMAQCA.
After a subsequent review of the SIP revision submittal, EPA
determined on June 18, 1990, that the April 1990 State submittal was
incomplete and requested a formal State submittal of the New Mexico
Conflict of Interest Act and the NMEIB Code of Conduct. Similar
information was also required for the City of Albuquerque/Bernalillo
County portion of the State's submittal (e.g., ordinances, and any
conflict of interest applicable provisions). On July 16, 1990, the
Governor formally submitted the State's Conflict of Interest Act and
the NMEIB Code of Conduct as an addendum to the April 1990 submittal to
meet the section 128(a)(2) requirements of the Act. As indicated in
EPA's letter dated August 9, 1990, this submittal completed the State's
portion of the section 128(a) requirements. Under the State's Conflict
of Interest Act, the members of the board and the NMEID Director are
required to disclose any potential conflicts of interest. The NMEIB
Code of Conduct prescribes standards of conduct for members of the
NMEIB for potential conflict of interest situations. The Code is
consistent with and intended to supplement the requirements of the
State's Conflict of Interest Act, section 10-16-1 to 10-16-16 NMSA
1978. The EPA's earlier review of H.B. 404aa determined that it is
acceptable under Federal law to remove permitting and enforcement
jurisdiction from the NMEIB and to place it under the purview of the
NMEID Director.
2. Albuquerque/Bernalillo County Portion
The initial Governor's SIP revision submittal for the City of
Albuquerque/Bernalillo County occurred on November 16, 1990, via a
letter to EPA and contains a SIP narrative and supporting attachments.
It incorporates amendments to local ordinances correcting the criteria
by which board members are appointed and also addresses Conflict of
Interest. Supplemental information was submitted to EPA on December 18,
1990. The submittal included the following documents:
a. SIP narrative statement regarding State Boards, including three
(3) attachments as follows:
1. City and County Metropolitan Environmental Health Advisory Board
Ordinances as amended.
2. City and County Air Quality Control Board Ordinances.
3. The City Attorney's compilation of materials concerning City and
County Conflict of Interest, and Code of Conduct.
[[Page 29237]]
b. Supporting documents which are necessary for processing and
approving this SIP submittal (e.g., proof of September 9, 1990, legal
notice of public hearing; and public hearing transcript of October 10,
1990).
This submittal was determined by EPA to be incomplete on June 21,
1991, pending a satisfactory resolution of prior EPA comments on the
draft SIP supplement pertaining to State Boards by the City of
Albuquerque's, Air Pollution Control Division. Specifically, these
comments concerned the belief that critical legal flaws or deficiencies
may exist, with respect to State Board requirements, in the
Albuquerque/Bernalillo County addendum SIP revision. Supplemental
information was submitted to EPA on October 21, 1991. A legal opinion
by the Albuquerque City Attorney dated November 22, 1991,
satisfactorily addressed EPA concerns as expressed in the June 21, 1991
letter. After a review of the addendum SIP revision, supplemental
information and this legal opinion, EPA determined on December 17,
1991, that both the State portion and the City of Albuquerque/
Bernalillo County portion of the Governor's submittal were complete.
II. Analysis of State Submission
A. General
The EPA has reviewed the Governor's submittals (both portions) and
developed a Technical Support Document (TSD). The TSD concludes that
the New Mexico Governor's SIP revisions (both portions) meet all of the
requirements of section 128 of the Act. This TSD is available for
inspection by interested parties during normal business hours at the
EPA Region 6 Office.
B. Public Interest Membership
The EPA received written correspondence dated July 4, 1990, from an
interested party concerning the eligibility for ``public interest''
Board member positions. As indicated in a reply letter dated November
27, 1990, EPA interprets the New Mexico Air Quality Control Act as
follows: If a person appears before the Board on any matter(s), and
that person is not paid for his or her appearance(s), or if he or she
is paid, and that payment(s) is not a significant portion of his or her
income, then that person can still qualify to be a public interest
Board member. The EPA does not read the State statute to preclude
persons from being eligible for public interest Board member positions
if they have ever appeared before the Board on any matter(s). The
disqualifying link is whether that appearance(s) was a paid one and
whether the payment, if any, was a significant portion of one's annual
income. The State has agreed with this interpretation as well.
In subsequent correspondence with the New Mexico Environment
Department (previously the NMEID) dated March 19, 1993, EPA further
defined this issue by stating: Persons who are designated to either
represent nonprofit environmental protection organizations or represent
municipal and county governments, do not represent the public interest.
The rationale behind this judgement is that each group could
potentially pursue their own agenda and thus, would not represent the
public interest. Specifically, professional public interest advocates
(e.g., paid representatives) do not qualify for the ``public interest''
majority requirements. However, mere membership in the organizations
would not be disqualifying.
In February and March 1993, the New Mexico Legislature considered
H.B. 552 which proposed to increase the size of the Environmental
Improvement Board from five to seven members. Specifically, the House
Bill proposed that one new member would represent a non-profit
environmental protection organization, and the other member would
represent municipal (and county) governments. On March 2, 1993, EPA
provided comments on this proposed bill and determined that it would
throw the NMEIB public interest membership off balance, and if enacted,
the language would be unapprovable under the Act, section 128.
Likewise, the New Mexico Environment Department analyzed this bill and
recommended not adopting the bill on the grounds that it would expose
the NMEIB to membership composition problems. Subsequently, the New
Mexico Legislature did not pass the flawed H.B. 552.
C. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans for submission to EPA. Section
110(a)(2) of the Act provides that each implementation plan submitted
by a State must be adopted after reasonable notice and public hearing.
See also section 110(l) of the Act. Also, EPA must determine whether a
submittal is complete, and therefore warrants further EPA review and
action (see section 110(k)(1) and 57 FR 13565). The EPA's completeness
criteria for SIP submittals are set out at 40 CFR part 51, Appendix V
(1991), as amended by 56 FR 42216 (August 26, 1991). The EPA attempts
to make completeness determinations within 60 days of receiving a
submission. However, a submittal is deemed complete by operation of law
if a completeness determination is not made by EPA six months after
receipt of the submission.
Regarding the State portion of the SIP submittal (which includes
New Mexico H.B. 404aa, and New Mexico Conflict of Interest Act) for
State Boards, it is EPA's position that a public hearing is not
required for State legislative statutes. The EPA views the State
legislative process as fully satisfying the procedural requirements of
40 CFR 51.102 for adoption and submittal of SIP revisions.
After providing adequate 30 day public notice, Albuquerque/
Bernalillo County held a public hearing on October 10, 1990, to
entertain public comment on proposed revisions to its portion of the
SIP submittal regarding State Boards. No adverse public comments were
received at the public hearing. Following the public hearing and
consideration of minor public comments, the SIP revision was adopted by
the Albuquerque/Bernalillo County Air Quality Control Board on October
10, 1990. The Albuquerque/Bernalillo County portion of the SIP revision
was then submitted by the Governor to EPA by cover letter dated
November 16, 1990. Supplemental information was submitted on December
18, 1990, October 21, 1991, and November 22, 1991.
The SIP revision was reviewed by EPA to determine completeness
shortly after its submittal, in accordance with the completeness
criteria referenced above. A letter dated December 17, 1991, was
forwarded to the Governor indicating the completeness of the submittal
and the next steps to be taken in the review process.
III. Final Action
By this action, EPA is approving revisions to the New Mexico SIP
regarding State Boards for both the State of New Mexico and for
Albuquerque/Bernalillo County, NM. The SIP revisions were submitted by
the State to satisfy the Federal mandate, found in section 128 of the
Act concerning State Board composition and conflict of interest
provisions. The EPA has reviewed these revisions to the New Mexico SIP
and is approving them as submitted.
The EPA is publishing this action without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the ``Proposed Rules'' section of today's Federal
Register publication, we are publishing a
[[Page 29238]]
separate document that will serve as the proposal to approve the SIP
revision if adverse comments are filed. This action will be effective
on August 2, 1999, without further notice unless we receive adverse
comment by July 1, 1999.
If EPA receives adverse comment, 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 on this action must do so at this time. If no such comments
are received, the public is advised that this action will be effective
August 2, 1999, and no further action will be taken on the proposed
rule.
The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. The EPA has determined
that this action conforms with those requirements regardless of the
fact that the submittal preceded the date of enactment. Nothing in this
action should be construed as permitting or allowing or establishing a
precedent for any future request for revision to any SIP. Each request
for revision to the SIP shall be considered separately in light of
specific technical, economic, and environmental factors and in relation
to relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a State, local or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to provide to the OMB a description
of the extent of EPA's prior consultation with representatives of
affected State, local and tribal governments, the nature of their
concerns, copies of any written communications from the governments,
and a statement supporting the need to issue the regulation. In
addition, E.O. 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of state, local,
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's rule does not create a mandate on State, local, or tribal
governments. The rule does not impose any enforceable rules on any of
these entities. Accordingly, the requirements of section 1(a) of E.O.
12875 do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that EPA determines: (1) is ``economically
significant'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
The EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to E.O. 13045
because it approves a State program.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to the OMB, in a separately identified section of the preamble
to the rule, a description of the extent of EPA's prior consultation
with representatives of affected tribal governments, a summary of the
nature of their concerns, and a statement supporting the need to issue
the regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. This final rule will not have a significant
impact on a substantial number of small entities because SIP approvals
under section 110 and subchapter I, part D of the Act do not create any
new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Act
forbids EPA to base its actions concerning SIPs on such grounds. See
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated annual costs to State,
local, or tribal governments in the aggregate; or to private sector, of
$100 million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
[[Page 29239]]
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated annual costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. This Federal action
approves preexisting requirements under State or local law, and imposes
no new requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
G. Submission to Congress and the Comptroller General
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 can
not take effect until 60 days after it is published in the Federal
Register. This rule is not a ``major'' rule as defined by 5 U.S.C.
804(2). This rule will be effective August 2, 1999.
H. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 2, 1999. 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, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Lead, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides, Volatile organic compounds.
Dated: April 26, 1999.
Jerry Clifford,
Acting Regional Administrator, Region 6.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation of part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart GG--New Mexico
2. In section 52.1620(e), the table is amended by adding section
74-1-4 at the beginning of the table, by revising section 74-2-4, and
by adding new sections to the table after section 74-2-17.
Sec. 52.1620 Identification of plan.
* * * * *
(e) * * *
EPA Approved New Mexico Statutes in the Current New Mexico SIP
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State approval/
State citation Title/subject effective date EPA approval date Comments
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NMSA 1978--New Mexico Statutes in the New Mexico SIP
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74-1-4........................ Environmental 04/20/90 June 1, 1999..........
Improvement Board--
Creation--Organizatio
n.
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* * * * * *
*
74-2-4........................ Municipal or County 04/20/90 June 1, 1999..........
Air Quality Control
Board.
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* * * * * *
*
Article 16, Sections 10-16-1 New Mexico Conflict of 07/16/90 June 1, 1999..........
through 10-16-16. Interest Act.
Article 16, Supplemental...... New Mexico 07/16/90 June 1, 1999..........
Environmental
Improvement Board
Code of Conduct.
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EPA Approved City of Albuquerque and Bernalillo County Ordinances for State Board Composition and Conflict of
Interest Provisions
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City of Albuquerque, Chapter Metropolitan 11/16/90 June 1, 1999..........
6, Article XVII Sections 6-17- Environmental Health
1 to 6-17-3. Advisory Board.
Bernalillo County Commission Metropolitan 08/05/74 June 1, 1999..........
Ordinance 302. Environmental Health
Advisory Board.
Bernalillo County Commission Metropolitan 08/21/90 June 1, 1999.......... Amended
Ordinance 90-19. Environmental Health Ordinance 302.
Advisory Board.
City of Albuquerque, Chapter Joint Air Quality 08/01/89 June 1, 1999..........
6, Article XVI Sections 6-16- Control Board
1 to 6-16-15. Ordinance.
Bernalillo County Commission Joint Air Quality 12/27/88 June 1, 1999.......... Amended
Ordinance 88-45. Control Board Ordinance 84-
Ordinance. 44.
City of Albuquerque Chapter 1, Public Boards, 07/01/87 June 1, 1999..........
Article XII Sections 1-12-1 Commissions and
to 1-12-3. Committees.
[[Page 29240]]
City of Albuquerque Chapter 2, Conflict of Interest.. 07/01/85 June 1, 1999..........
Article III Sections 2-3-1 to
2-3-13.
City of Albuquerque Charter, Code of Ethics........ 04/01/90 June 1, 1999..........
Article XII.
Bernalillo County Commission Code of Ethics........ 02/05/85 June 1, 1999..........
Ordinance 85-3.
City of Albuquerque Code of City Code of Conduct.. 02/09/90 June 1, 1999..........
Conduct.
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[FR Doc. 99-13379 Filed 5-28-99; 8:45 am]
BILLING CODE 6560-50-U
