Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Proposed Rules 48587

provided in the Direct Final action

which is located in the Rules Section of

this Federal Register.

Authority: 42 U.S.C. 7401–7671q.

Dated: August 22, 1997.

John Wise,

Acting Regional Administrator.

[FR Doc. 97–24416 Filed 9–15–97; 8:45 am]

BILLING CODE 6560–50–F

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[NM–24–1–7102; FRL–5892–7]

Approval and Promulgation of Air

Quality Implementation Plans; New

Mexico; Proposed Approval of a

Revision to the New Mexico State

Implementation Plan—Enhanced

Monitoring Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: Pursuant to section 110 of the

Clean Air Act (the Act), as amended in

1990, EPA is proposing to approve

revisions to the New Mexico State

Implementation Plan (SIP) addressing

revisions to Air Quality Control

Regulation (AQCR) 702 concerning

permits. The State’s revision expands

the types of testing and monitoring data,

including stack and process monitoring,

which can be used directly for

compliance certifications and

enforcement.

DATES: Comments on this proposed

action must be received in writing on or

before October 16, 1997.

ADDRESSES: Comments should be

mailed to Jole C. Luehrs, Chief, Air

Permits Section (6PD–R), EPA, Region 6,

1445 Ross Avenue, Suite 700, Dallas,

Texas 75202–2733. Copies of the

documents relevant to this action are

available for public inspection during

normal business hours at the following

locations:

EPA, Air Permits Section (6PD–R),

1445 Ross Avenue, Suite 700, Dallas,

Texas, 75202–2377.

New Mexico Environmental

Improvement Board, 1190 St. Francis

Drive, Santa Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT:

Mary Stanton, Air Permits Section

(6PD–R), EPA, Dallas, Texas, 75202–

2377, telephone (214) 665–8377.

SUPPLEMENTARY INFORMATION:

I. Background

The EPA has published a number of

‘‘reference test methods’’ and, in order

to assure uniformity in the application

of emission standards, has required

sources to establish compliance with

emission standards by use of those

reference test methods. In theory, a

source would conduct testing on a

periodic basis utilizing these methods

and would rely on the comprehensive

nature of this testing to assure

compliance on a day to day basis.

In the interim, more accurate

emission monitoring devices have been

developed. In addition, EPA, the States,

and the regulated community have

gained a better understanding of the

specific facility and pollution control

device operating parameters that control

emissions. Many sources currently

determine compliance with permitted

limits either through the use of

continuous emission monitors or by

monitoring key parameters of their

production processes and pollution

control devices.

Section 113(a) of the Act provides that

the Agency may bring an enforcement

action on the basis of any information

available. However, in United States

versus Kaiser Steel Corporation, the

District Court ruled that, because of

what it perceived to be limitations in

EPA’s regulations, only reference

method stack testing could be used to

establish violations of permit limits,

notwithstanding irrefutable scientific

evidence that otherwise demonstrated

thousands of violations. In the 1990

amendments to the Act, Congress

overrode the United States versus Kaiser

Steel Corporation decision, providing

that the duration of the violation could

be established by any credible evidence

(including evidence other than the

applicable test method).

The EPA believes that existing SIPs

(nationwide) are inadequate for States or

EPA to fully implement the Act, because

the SIPs may presently be interpreted to

limit the types of testing or monitoring

data that may be used for determining

compliance and establishing violations.

On June 9, 1994, EPA issued a call to

the State of New Mexico to revise its SIP

to clarify that any monitoring approved

for the source (and included in a

Federally enforceable operating permit)

may form the basis of the compliance

certification, and that any credible

evidence may be used for purposes of

enforcement in Federal court.

II. EPA Evaluation

On November 10, 1994, New Mexico

made an official plan submission in

response to EPA’s SIP call. New Mexico

submitted revisions to AQCR 702,

which provides that data which has

been collected under the enhanced

monitoring and Operating Permit

programs can be used for compliance

certifications and enforcement actions.

Specifically, section R of the revisions

to AQCR 702 authorizes this data to be

used for compliance certifications, and

section S authorizes this data to be

considered for enforcement actions.

This revision will enhance the State’s

capability for determining compliance

with, and for establishing violations of,

the underlying emission limitations.

III. Proposed Action

The EPA reviewed these revisions to

the New Mexico SIP and is proposing to

approve sections R and S of AQCR 702

as submitted because they meet the

requirements of section 110 of the Act.

The EPA is requesting comments on all

aspects of the requested SIP revision

and EPA’s proposed rulemaking action.

The EPA will consider any timely

submitted comments prior to EPA’s

taking final action on this proposed

rule. Comments received by the date

indicated above will be considered in

the development of EPA’s final rule.

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 12866

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register (FR) on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995, memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget has exempted this

regulatory action from Executive Order

12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. See 5 U.S.C.

603 and 604. Alternatively, EPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

The SIP approvals under section 110

and subchapter I, part D of the Act do
48588 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Proposed Rules

not create any new requirements but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

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 Company.

v. U.S. E.P.A., 427 U.S. 246, 256–66

(1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under sections 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 costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective 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.

The EPA has determined that the

approval action proposed does not

include a Federal mandate that may

result in estimated 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 Federal requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Enhanced monitoring,

Incorporation by reference,

Intergovernmental relations.

Authority: 42 U.S.C. sections 7401–76718.

Dated: August 15, 1997.

Jerry Clifford,

Acting Regional Administrator.

[FR Doc. 97–24552 Filed 9–15–97; 8:45 am]

BILLING CODE 6560–50–P