ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-0AR-2006-0569; FRL- -'

Approval of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo

County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is approving revisions to the State Implementation Plan (SIP) submitted

by the Governor ofNew Mexico on May 24, 2006. The revisions address Title 20 ofthe New

Mexico Administrative Code, Chapter 11, Part 102 (denoted 20.11.102 NMAC), which apply to

oxygenated fuels in the Albuquerque/Bernalillo County area. The revisions include editorial and

substantive changes that clarify the requirements under 20.11.102 NMAC. We are approving

these revisions in accordance with the requirements ofsection 110 ofthe Clean Air Act (the Act).

DATE: Written comments must be received on or before [Insert date 30 days from date of

publication in the Federal Registerl. The Direct final rule will be effective [Insert date 60

days from date of publication in the Federal Register] without further notice unless EPA

receives adverse comments by [Insert date 30 days from date of publication in the Federal

Register]. If adverse comments are received, EPA will publish a timely withdrawal ofthe direct

final rule in the Federal Register informing the public that the rule will not take effect.
ADDRESSES: Submit comments, identified by Docket ID number EPA-R06-0AR-2006-0569,

by one ofthe following methods:

· Federal Rulemaking Portal: http://www.regulations.gov. Follow the on-line

instructions.

· U.S. EPA Region 6 "Contact Us" web site: http://epa.gov/region6/r6coment.htm.

Please click on "6PD" (Multimedia) and select "Air" before submitting comments.

· E-mail: Mr. Guy Donaldson at donaldson.guy@epa.gov. Please also send a copy by

email to the persons listed in the FOR FURTHER INFORMATION CONTACT section below.

· Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665-

7242.

· Mail: MrGuy Donaldson.Chief, Air Planning Section (6PD-L), Environmental

Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

· Hand or Courier 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 accepted only between the hours of 8:00 a.m. and 4:00 p.m. weekdays except

legal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Please include the text "Public comment on Docket ID number EPA-R06-0AR2006-0569" in the subject line ofthe first page of your comments. EPA's policy is that all

comments received will be included in the public docket without change and may be made

available online at www.regulations.gov, including any personal information provided, unless the

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comment includes information claimed to be Confidential Business Information (CBI) or other

information the disclosure ofwhich is restricted by statute. Do not submit information through

www.regulations.gov or e-mail that you consider to be CBI or otherwise protected from

disclosure. The www.reguIations.gov website 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

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. IfEPA

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 ofspecial

characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the 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 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

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Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except 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. Ifpossible, please make the

appointment at least two working days in advance of your visit. There will be a fee of 15 cents

per page for making photocopies of documents. On the day ofthe 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 (during official business hours

by appointment) at the City ofAlbuquerque, Environmental Health Department, One Civic

Plaza, Albuquerque, New Mexico 87102.

FOR FURTHER INFORMATION CONTACT: Inquiries on this rulemaking should be

directed to Ms. Carrie Paige, Air Planning Section (6PD-L), Environmental Protection Agency,

Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-6521;

fax number 214-665-7263; e-mail address paige.carrie@epa.govorMr. Bill Deese, Air Planning

Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700,

Dallas, Texas 75202-2733, telephone (214) 665-7253; fax number 214-665-7263; e-mail address

deese. william@epa.gov.

SUPPLEMENTARY INFORMATION: In this document, "we," "our," and "us" means EPA.

Outline

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I. What Action is EPA Taking?

II. Background

III. Summary ofChanges to the New Mexico SIP

IV. Final Action

V. Statutory and Executive Order Reviews

I. What Action is EPA Taking?

Today we are approving revisions to the New Mexico SIP, submitted by the Governor of

New Mexico on May 24, 2006. The revisions address 20.11.102 NMAC, which apply to the

Oxygenated Fuels program in the Albuquerque/Bernalillo County area. The revisions include

editorial and substantive changes that clarify the requirements under 20.11.102 NMAC; the

deletion of an obsolete procedures manual and references to it; and the addition oflanguage from

the deleted procedures manual to address inventory, recordkeeping, sampling and analysis

procedures, and enforcement. We are approving these revisions in accordance with the

requirements ofsection 110 of the Act.

EPA is publishing this rule without prior proposal because we view this as a

noncontroversial amendment and anticipate no relevant adverse comments. However, in the

proposed rules section ofthis Federal Register publication, we are publishing a separate

document that will serve as the proposal to approve the SIP revision ifrelevant adverse

comments are received. This rule will be effective on [Insert date 60 days from date of

publication in the Federal Register] without further notice unless we receive relevant adverse

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comment by [Insert date 30 days from date of publication in the Federal Register). Ifwe

receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register

informing the public that the rule will not take effect. We will address all public comments in a

subsequent final rule based on the proposed rule. We will not institute a second comment period

on this action. Any parties interested in commenting must do so now. Please note that ifwe

receive adverse comment on an amendment, paragraph, or section ofthis rule and ifthat

provision may be severed from the remainder ofthe rule, we may adopt as final those provisions

ofthe rule that are not the subject of an adverse comment.

II. Background

The SIP is a set of air pollution regulations, control strategies, and technical analyses

developed by the state to ensure that the state meets the National Ambient Air Quality Standards

(NAAQS). These ambient standards are established under section 109 ofthe Act and they

currently address six criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone,

particulate matter, and sulfur dioxide. The SIP is required by Section 110 ofthe Act and can be

extensive, containing state regulations or other enforceable documents and supporting

information such as emission inventories, monitoring networks, and modeling demonstrations.

The Albuquerque/Bernalillo County area was designated as a moderate nonattainment

area for carbon monoxide (CO) on November 6, 1991 (see 56 FR 56694). As a moderate

nonattainment area for CO, the area had to meet several new requirements, one ofwhich was to

implement an oxygenated fuels (oxyfuels) program, to reduce emissions ofCO in automobile

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exhaust. The Albuquerque/Bernalillo County area oxyfuels program was submitted by the state

and subsequently approved by EPA on November 29,1993 (58 FR 62535). On April 14, 1995,

the Governor ofNew Mexico submitted a request to EPA to redesignate to attainment the

Albuquerque/Bernalillo County CO nonattainment area, which we approved on June 13, 1996

(61 FR 29970). On July 21,2005,1 we approved revisions to the New Mexico SIP pertaining to

the second 10-year carbon monoxide (CO) maintenance plan for the Albuquerque/Bernalillo

County area, including revisions to 20.11.102 NMAC, which address the oxyfuels program.

The May 24, 2006 submittal incorporates additional revisions to 20.11.102 NMAC. The

rules in this submittal were promulgated in compliance with the NM Air Quality Control Act and

Albuquerque/Bernalillo County Air Quality Control Board (AQCB) ordinances, published in the

New Mexico Register, the official state publication for rulemaking actions, and submitted in

accordance with the requirements in 40 CFR Part 51. For more detail, see the 2006 submittal in

the docket for this rulemaking and our Technical Support Document (TSD), also in the docket.

III. Summary of Changes to the New Mexico SIP

A. 20.11.102.2, Scope.

Revisions to this section include nonsubstantive revisions and the inclusion oflanguage

that excepts Indian lands from the scope ofthe rule. This exception is appropriate as neither the

1 See 70 FR 41963

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City of Albuquerque nor Bernalillo County have jurisdiction over Indian lands.

B. 20.11.102.3, Statutory Authority.

Revisions to this section include clarifying edits and corrections to references to state and

county rules that provide authority to adopt rules. These revisions are not substantive and update

statutory and regulatory authority provisions.

C. 20.11.102.7, Definitions.

Revisions to this section include clarifying edits, inserting the correct formula for the

molecular composition of ethanol, and removing a reference to the oxygenated fuels procedures

manual. Two definitions were added: "Vehicle pollution management division" (VPMD) and

"Winter pollution season." These revisions delete obsolete references, identify the department

responsible for administering 20.11.102 NMAC, and identify the beginning and end dates for the

annual winter pollution season.

D. 20.11.102.9, Savings Clause.

Revisions to this section include clarifying edits and removing references to the

oxygenated fuels procedures manual. These revisions delete obsolete references and are not

substantive.

E. 20.11.102.10, Severability.

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Revisions to this section provide clarification and are not substantive.

F. 20.11.102.11, Documents.

Revisions to this section provide clarification and are not substantive.

G. 20.11.102.12, Oxygenated Fuels.

Revisions to this section include clarifying edits, identify the annual program duration as

the winter pollution season, and delete a reference to methyl tertiary butyl ether (MTBE) as an

oxygenate approved for use in the oxygenated fuels program. The removal ofMTBE is not a

weakening ofthe SIP, because the rule still specifies blending ethanol. This revision merely

removes one ofthe choices available to comply with the rule.

Revisions to this section also add the headings ofinventory, recordkeeping, sampling,

analysis, and enforcement, and delete redundant text. The language inserted under each ofthese

headings is taken from the old oxygenated fuels procedures manual; references to the procedures

manual are being removed from the SIP in today's action. The 2006 revisions also add labeling

provided by the VPMD, rather than the retail facility, which provides for a standardized and

consistent labeling protocol. References to appropriate American Society for Testing and

Materials (ASTM) methods are provided under the heading for analysis. A range offines and

schedule of corrective actions, including closure, is added under the heading for enforcement.

The revisions to 20.11.102.12 NMAC provide more specificity to the rules, thus

strengthen the SIP.

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H. 20.11.102.13, Oxygenated Fuels Procedures Manual.

The 2006 revisions to 20.11.102.13 NMAC revoke the entire section. Language relevant

to inventory, recordkeeping, sampling, analysis, and enforcement was taken from the old

procedures manual and inserted into the SIP; see paragraph (G) above. By deleting references to

the procedures manual and incorporating the specific headings and text into the SIP, the SIP

becomes more comprehensive and straightforward.

1.20.11.102.14, Contingency Measure.

The current SIP provides for an increase in the minimum oxygen content ofthe fuel,

should the area violate the CO NAAQS. The 2006 revisions delete this language and provide for

an increase in the minimum oxygen content ofthe fuel, should the area exceed 85 percent ofthe

CO NAAQS. Should the contingency measure be triggered, the oxygen content by weight will

be increased from 2.7 percent to 3.0 percent. These revisions to 20.11.102.14 NMAC strengthen

the SIP.

IV. Final Action

We are approving revisions to the New Mexico SIP submitted to EPA on May 24, 2006,

which address 20.11.102 NMAC and apply to oxygenated fuels in the Albuquerque/Bernalillo

County area. The revisions include editorial and substantive changes that clarify and strengthen

20.11.102 NMAC, sections 2, 3, 7, and 9-14. The revisions are consistent with the Act and EPA

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policy.

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 ofthe Act and applicable Federal regulations. 42 U,S.C. 741O(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 ofthe 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 ofthe Paperwork

Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number ofsmall

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small

governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-

4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR

43255, August 10, 1999);

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• 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) ofthe National Technology Transfer and

Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose 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,S 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 ofthe

rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA

will submit a report containing this action and other required information to the U.S. Senate, the

U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to

publication ofthe rule in the Federal Register. A major rule cannot take effect until 60 days after

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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)(I) ofthe Clean Air Act, petitions for judicial review ofthis action

must be filed in the United States Court ofAppeals for the appropriate circuit by [FEDERAL

REGISTER OFFICE: insert date 60 days from date of publication of this document in the

Federal Register]. Filing a petition for reconsideration by the Administrator ofthis final rule

does not affect the finality ofthis action for the purposes ofjudicial review nor does it extend the

time within which a petition for judicial review may be filed, and shall not postpone the

effectiveness ofsuch rule or action. This action may not be challenged later in proceedings to

enforce its requirements. (See section 307(b)(2).)

List of Subjects 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen

dioxides, Ozone, Reporting and recordkeeping requirements, Volatile Organic Compounds.

JI5/~OI()

Dated: Al Armendariz

Regional Administrator, Region 6.

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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. 7401 et seq.

Subpart GG - New Mexico

2. The second table in § 52.1620(c) entitled, "EPA Approved AlbuquerquelBernalillo County,

NM Regulations," is amended by revising the entry for part 102 to read as follows:

§ 52.1620 Identification of plan.

* * * * *

(c) * * *

* * * * * * *

EPA APPROVED ALBUQUERQUEIBERNALILLO COUNTY, NM REGULAnONS

State citation Title/subject State EPA approval date Explanation

approval/effective

Date

* * * * * * *

New Mexico Administrative Code (NMAC) Title 20 - Environment Protection, Chapter 11-

Albuquerque/Bernalillo County Air Quality Control Board

* * * * * * *

Part 102 Oxygenated 12/11/2005 [Insert date of FR

(20.11.102 Fuels publication]

NMAC) [Insert FR page

number where

document begins]

* * * * * * *

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