[Federal Register Volume 70, Number 139 (Thursday, July 21, 2005)]
[Rules and Regulations]
[Pages 41963-41967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14388]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R06-OAR-2005-NM-0001; FRL-7942-5]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Albuquerque/Bernalillo County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action finalizes our approval of the State Implementation
Plan (SIP) revisions submitted by the Governor of New Mexico on
September 7, 2004. The submittal revises the second ten-year carbon
monoxide (CO) maintenance plan for the Albuquerque/Bernalillo County,
New Mexico area. The submittal also revises the relevant parts of the
New Mexico Administrative Code (NMAC) including revisions to the
General Provisions, Inspection and Maintenance (I&M) Program, and the
contingency measures. We are finalizing approval of these revisions in
accordance with the requirements of the Federal Clean Air Act (the
Act).
DATES: This rule is effective on August 22, 2005.
ADDRESSES: The EPA has established a docket for this action under
Regional Material in EDocket (RME) Docket ID No. R06-OAR-2005-NM-0001.
All documents in the docket are listed in the RME index at http://docket.epa.gov/rmepub/, once in the system, select ``quick search,''
then key in the appropriate RME Docket identification number. 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 either electronically
in RME 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 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the
person listed in the FOR FURTHER INFORMATION CONTACT paragraph below 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
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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:
Environmental Protection Agency, Region 6, Air Planning Section
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.
The City of Albuquerque, Environmental Health Department, One Civic
Plaza, Albuquerque, NM 87102.
FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar of the Air Planning
Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733 at (214) 665-6691, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background Information
1. What actions are we taking in this document?
2. Who submitted comments to us?
3. What is our response to the submitted written comments?
4. What areas in New Mexico will these rule revisions affect?
II. Final Action
III. Statutory and Executive Order Reviews
In this document ``we,'' ``us,'' and ``our'' refer to EPA.
I. Background Information
1. What Actions Are We Taking in This Document?
On April 14, 2005 (70 FR 19723) we proposed approval of revisions
to the New Mexico SIP pertaining to the second ten-year CO maintenance
plan for the Albuquerque/Bernalillo County, New Mexico area and its
relevant parts of the NMAC including revisions to the General
Provisions, I&M Program, the Oxygenated Fuels Program, and the
contingency measures. In the April 14, 2005 Federal Register (70 FR
19723), we stated that written comment must be received by May 16,
2005. We received written adverse comments during the public comment
period.
On June 8, 2005 (70 FR 33363) we published the withdrawal of the
direct final rule 70 FR 19702 due to the adverse comments received. A
detailed rationale for our action is set forth in the direct final
rule. See 70 FR 19702, and the Technical Support Document for further
information. In the June 8, 2005, Federal Register (70 FR 33363) as
well as the April 14, 2005 direct final rule we stated that we will
summarize and respond to written comments received, and take final
rulemaking action on the requested New Mexico SIP revision. In the June
8, 2005, Federal Register (70 FR 33363), we cited two references as
``71 FR 19723'' and ``71 FR 19702'' by mistake. The correct citations
for those two references should have read ``70 FR 19723'' and ``70 FR
19702'' instead. Today, we are correcting that error.
Today, we are also summarizing and responding to written comments
received and taking final rulemaking action on the April 14, 2005 (70
FR 19723) proposal pertaining to the Albuquerque/Bernalillo County, New
Mexico SIP revision. See sections 2 and 3 of this document for more
information.
2. Who Submitted Comments to Us?
We received written comments on the April 14, 2005 (70 FR 19723),
proposed New Mexico SIP revision. The comments were submitted by
Chevron and ConocoPhilips (the Commenters) during the public comment
period.
3. What Is Our Response to the Submitted Written Comments?
Our responses to the written comments concerning the April 14, 2005
(70 FR 19723) proposal, New Mexico SIP revision are as follows:
Comment #1: Chevron and ConocoPhillips (the Commenters) expressed
their opposition to maintaining the 2.7 percent oxygenated fuel content
requirement, for the period from November 1st through the end of
February (Winter season) as a part of the second ten-year CO limited
maintenance plan, within the Albuquerque/Bernalillo County, New Mexico
area. Chevron submitted a chart indicating the downward trend of
calculated CO concentrations in the area for the recent years to
substantiate its position.
Response to Comment #1: The Act assigns to the states initial and
primary responsibility for formulating a plan to achieve the NAAQS. It
is up to the state to prepare state implementation plans which contain
specific pollution control measures. An examination of this SIP
submittal reveals no record of the Commenters having provided input or
submitted comments to the State or the Albuquerque Environmental Health
Department (AEHD) during their rulemaking process. The EPA's
responsibilities under the Act are qualitatively different from those
of the state agency. The EPA is charged with reviewing and approving or
disapproving the enforceable implementation plans prepared by states
and other political subdivisions identified in the statute. It is not
EPA's role to disapprove the State's choice of control strategies if
that strategy will result in attainment or continued maintenance of the
NAAQS, and meets all other applicable statutory requirements. See Union
Electric v. EPA, 427 U.S. 246 (1976); Train v. NRDC 421 U.S 60 (1975).
The EPA's role in reviewing SIP submittals is to approve state choices,
provided that they meet the criteria of the Act. Federal inquiry into
the reasonableness of state action is not allowed under the Act (see,
Union Electric Co. v. EPA, 427 U.S. 246, 255-266 (1976); 42 U.S.C.
7410(a)(2)). Under section 116 of the Act, with certain exceptions not
relevant here, a State retains the right to adopt and enforce any
requirement respecting control or abatement of air pollution, including
more stringent emissions standards and limitations. The State has
submitted information indicating that the administrative requirements
of New Mexico law have been met. We can agree with the Commenters'
statement that all CO emissions in the Albuquerque/Bernalillo County
are not from mobile sources. However, the CO emissions inventory Table
I of the April 14, 2005 (70 FR 19702) direct final rule indicates that
more than 84% (398.14/473.34) of the CO emissions in the area are
mobile source related. We can agree with the Commenters that the
overall trend as shown in the chart, provided by the Commenters,
indicates a downward trend for the calculated CO concentrations in the
Albuquerque/Bernalillo County area for recent years. However, we
consider this downward trend to be attributable to the success of
control measures and implementation of enforceable air quality plans
adopted by Albuquerque/Bernalillo County. Thus, removing the oxygenated
fuel content requirement as requested by the Commenters (even if EPA
had such authority which, as explained previously, it does not) could
potentially cause CO concentrations in the area to increase. We believe
that the measures adopted by the Albuquerque/Bernalillo County are
adequate, and reflect a coherent way air planning and transportation
have come together to address air quality issues in the area. For all
of these stated reasons, we disagree with the Commenters's opposition
to the existing program.
Comment #2: Chevron states that on multiple occasions this past
season the railroad was unable to deliver ethanol tank cars into their
terminal when they were needed. Chevron also stated they experienced
similar problems in their Phoenix and Las Vegas terminals, as well. In
those instances, Chevron claims that they had to arrange to purchase
and truck ethanol into their terminals to
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ensure a continuous and reliable supply to the customers.
Response to Comment #2: This comment is not relevant to today's
rulemaking action. Various forms of the Oxygenated Fuels Program have
been in place since 1988 in the area, and EPA approved the Program
utilizing ethanol in 1993. Today's rulemaking only approves minor
grammatical and typographical changes to the existing program; it does
not change the substance of the program EPA approved in 1993. Chevron's
concern about ethanol supply to meet the existing program, therefore,
is not relevant to today's action.
As noted previously, the State has the authority to include these
measures under section 116 of the Act in its SIP. Again, comments
concerning ethanol supply issues should have also been directed to the
State. Therefore, we can not delete these measures from the SIP, if the
State has adopted or wants to include them in its SIP.
As far as Chevron's Albuquerque terminal operation is concerned, we
believe that the delivery and on-time availability of ethanol scenarios
described above are largely business strategy related matters rather
than a CO maintenance issue. Such matters are best addressed through
merchandise inventory preparations, factoring storage tank design/
capacity estimates, advance scheduling/planning, and forecasting
considerations.
This concludes our responses to the written comments we received
during public comment period concerning the April 14, 2005 (70 FR
19723), New Mexico proposed SIP revision.
4. What Areas in New Mexico Will These Rule Revisions Affect?
These rule revisions affect all sources of air emissions operating
within the Albuquerque/Bernalillo County, New Mexico area.
II. Final Action
Today, we are finalizing approval of the CO limited maintenance
plan and its relevant parts of the NMAC including revisions to the
General Provisions (``Resolutions,'' ``Definitions,'' and
``Interpretation''), I&M Program, the Oxygenated Fuels Program, and the
contingency measures. We published the proposal for this approval on
April 14, 2005 (70 FR 19723).
III. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 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 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 September 19, 2005. 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,
Intergovernmental relations, Reporting and recordkeeping requirements.
Dated: July 14, 2005.
Richard E. Greene,
Regional Administrator, Region 6.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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
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2. Section 52.1620 is amended as follows:
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a. In paragraph (c), in the second table entitled ``EPA Approved
Albuquerque/
[[Page 41966]]
Bernalillo County, NM Regulations,'' by revising the entries for parts
1, 100, and 102.
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b. In paragraph (e), in the second table entitled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the New
Mexico SIP'' by adding one new entry to the end of the table. The
revisions read as follows:
Sec. 52.1620 Identification of plan.
* * * * *
(c) * * *
EPA Approved Albuquerque/Bernalillo County, NM Regulations
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State
approval/ EPA
State citation Title/subject effective approval Explanation
date date
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Albuquerque/Bernalillo County, Air Quality Control Regulations
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* * * * * * *
New Mexico Administrative Code (NMAC) Title 20--Environment Protection, Chapter 11--Albuquerque/Bernalillo
County Air Quality Control Board
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Part 1 (20.11.1 NMAC).............. General Provisions........ 09/07/04 7/21/05
[Insert FR
page where
document
begins]
* * * * * * *
Part 100 (20.11.100 NMAC).......... Motor Vehicle Inspection-- 09/07/04 7/21/05
Decentralized. [Insert FR
page where
document
begins]
Part 102 (20.11.102 NMAC).......... Oxygenated Fuels.......... 09/07/04 7/21/05
[Insert FR
page where
document
begins]
* * * * * * *
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* * * * *
(e) * * *
EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the New Mexico SIP
----------------------------------------------------------------------------------------------------------------
State
submittal EPA
Name of SIP provision Applicable geographic or date/ approval Explanation
nonattainment area effective date
date
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* * * * * * *
Second 10-year maintenance plan Bernalillo County......... 09/07/04 7/21/05
(limited maintenance plan) for [Insert FR
Albuquerque/Bernalillo County. page where
document
begins]
* * * * * * *
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3. Section 52.1627 is amended by designating the existing text as
paragraph (a) and by adding paragraph (b) to read as follows:
Sec. 52.1627 Control strategy and regulations: Carbon monoxide.
* * * * *
(b) Approval--The Albuquerque/Bernalillo County carbon monoxide
limited maintenance plan revision dated September 7, 2004, meets the
requirements of section 172 of the Clean Air Act, and is therefore
approved.
[FR Doc. 05-14388 Filed 7-20-05; 8:45 am]
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